UK - R (on the application of AA (Sudan)) v Secretary of State for the Home Department, 9 March 2017

Facts:

The unaccompanied Sudanese applicant entered the UK on 19 July 2014, immediately claimed asylum and participated in a screening interview during which he claimed to be 17 although a date of birth placing him as over 18 was put on the form. He was then placed in detention.

In a letter dated 19 July 2014, the government indicated that his physical appearance/demeanour very strongly suggested that he was significantly over 18. Enquiries revealed that Italy had been the applicant’s first point of entry into the European Union and removal directions were set but cancelled twice in light of two judicial review applications.

He was released from detention but then fresh removal directions were set and he was again detained, from 17 February to 1 March 2015. On 6 February 2015, a local authority had completed an age assessment of him which concluded that he was approximately 16/17. The applicant’s solicitors provided this to the government on 23 February 2015. The judge at first instance had decided that the period of detention from 17 February to 1 March was unlawful; the government appealed with respect to the period from 17 to 23 February.

Decision & reasoning:

1.       It was unlawful to detain the applicant from 17 February to 23 February 2015. Detention pending removal is permitted under paragraph 16(2) of Schedule 2 of the Immigration Act 1971. However, para. 16(2A) provides: “But the detention of an unaccompanied child under sub-paragraph (2) is subject to paragraph 18B.” Similarly, para. 18(1A) provides: “But the detention of an unaccompanied child under paragraph 16(2) is subject to paragraph 18B.” Para. 18B heavily restricts detention where a person “is an unaccompanied child” (para. 18B(1)). The plain language of the statute demands the conclusion that the detention was unlawful, particularly the explicit wording of paras. 16(2A) and 18(1A), their commencement with the emphatic word “But”, and the reference in para. 18B to a person who “is an unaccompanied child” (emphasis added).

2.       R (on the application of AA (Afghanistan)) v Secretary of State for the Home Department [2013] UKSC 49 had disapproved the idea that detention in the reasonable but mistaken belief that the detainee was an adult breached section 55 of the Borders, Citizenship and Immigration Act 2009 which requires the government to have regard to the need to safeguard and promote the welfare of children in the UK when discharging its immigration, asylum or nationality functions. However, AA has been superseded by s.5 of the Immigration Act 2014 which introduced paras. 16(2A) and 18B.

3.       R (on the application of A) v Croydon LBC
[2009] UKSC 8 had decided that, in the context of sections 20 and 150 of the Children Act 1989, the question of whether or not a person was a child was a matter of objective fact, not a matter for a local authority’s (reasonable) determination. However, this decision was of limited support for the applicant because it concerned a different Act of Parliament in a different context.

Outcome:

Government’s appeal dismissed.

Subsequent proceedings:

The Home Office policy guidance on assessing age was amended on 26 February 2018 and now reflects this judgment.

Observations/comments:

This case summary was written by Alice Winstanely, LLM student at Queen Mary University, London. 

Other sources: