The claimant sought damages, alleging false imprisonment and breach of article 5 of the European Convention on Human Rights. The defendant conceded that the detention had been unlawful because officers had wrongly applied a presumption that an asylum seeker who arrived clandestinely should be detained, but disputed that other grounds on which the claimant alleged that his detention were unlawful. The judgment was concerned with that dispute, which was thought to have a potential bearing on the assessment of compensation.
The police were called when the claimant went into a petrol station asking for food. He told the police through an interpreter that he was 15 years old and came from Iran. He was detained and the police notified the social services department of the local county council. A social worker conducted an age assessment and concluded that he was over 18. The police called the Border Agency and an immigration officer took the decision that he should be detained. The immigration officer gave evidence. The judge found that the decision to detain was unlawful because the immigration officer failed to ask herself the right questions or to take reasonable steps to acquaint herself with the information needed to make her decision. She did not know the requirements of a Merton-compliant assessment. A later re-assessment by social services concluded that the appellant was 17. At the trial it was accepted as a fact that he was 15 and that the way in which the first assessment had been carried out was defective.
Held: Lang J accepted that the proper interpretation of the policy set out in EIG paragraph 55.9.3.1, was did not impose a pre-condition that a Merton-compliant age assessment had been carried out. An immigration officer was required to make an independent evaluation and exercise his judgment in deciding whether or not the criteria in the paragraph were met. On the judge’s findings, the immigration officer lacked the training to have done so and failed the test. Her factual findings were sufficient to justify the conclusion that the decision to detain was unlawful.
Lang J concluded: ‘Unfortunately, the immigration officers did not have regard to the claimant’s status as a child, and the need to safeguard and promote his welfare as a child, when they made the decision to detain him, because they were under the mistaken belief that he was not a child.
However, he was in fact a child, within the meaning of the definition of ‘child’ in sub-section (6), and it is not possible to interpret this definition as if Parliament had included the words ‘appears to be a child’ or ‘is reasonably believed to be a child’. . My conclusion is that, by failing to have regard to the need to safeguard and promote his welfare as a child, the immigration officers erred in law, rendering the decision to detain unlawful.’
Judges:
Lang J
Citations:
[2012] EWHC 2567 (QB)
Links:
Cited by:
Cited – AA, Regina (on The Application of) v Secretary of State for The Home Department SC 10-Jul-2013
The issue on this appeal is the effect of section 55 on the legality of the appellant’s detention under paragraph 16 over a period of 13 days. At the time of the detention the Secretary of State acted in the mistaken but reasonable belief that he . .
Lists of cited by and citing cases may be incomplete.
Immigration, Children, Torts – Other, Human Rights
Updated: 05 November 2022; Ref: scu.464574