Upper Tribunal (Immigration and asylum chamber), 2017-08-01, JR/8610/2014

JurisdictionUK Non-devolved
Date01 August 2017
Published date15 March 2019
Hearing Date24 May 2017
CourtUpper Tribunal (Immigration and Asylum Chamber)
StatusUnreported
Appeal NumberJR/8610/2014

Case Number: JR/8610/2017

IN THE UPPER TRIBUNAL


JR/8610/2014


Field House,

Breams Buildings

London

EC4A 1WR


Heard on: 24 May 2017


Before


DR H H STOREY

JUDGE OF THE UPPER TRIBUNAL


Between


the queen

(on the application of BF by his litigation friend FRANCESCO JEFF)

Applicant


and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

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For the Applicant: Mr C Buttler, Counsel instructed by Scott Moncrieff Solicitors

For the Intervener: Mr M Chamberlain QC, Equality and Human Rights Commission

For the Respondent: Mr J Strachan, QC/Ms D Rhee QC instructed by Government Legal Department



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JUDGMENT


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JUDGE H H storey:


1. At the heart of this application for judicial review is a challenge to one specific provision of the respondent’s current policy relating to detention of persons claiming to be a child. That provision is Chapter (sometimes referred to as “paragraph”) 55.9.3.1 of the Enforcement Instructions and Guidance (EIG) which identifies as one of four bases or criteria on which the respondent will treat as an adult a person claiming to be a child:


C. Their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary.”


2. The applicant and Intervener seek a declaration and/or quashing order in relation to criterion C.


3. Since Mr Chamberlain’s grounds on behalf of the intervener were primarily aimed at identifying incompatibility of criterion C with EU, ECHR and international human rights law, I shall not always note where he has agreed with wider submissions advanced by Mr Buttler on behalf of the applicant. I set out a summary of the parties’ oral submissions in an Appendix.


4. The applicant’s case is that criterion C of the respondent’s policy on detention is unlawful because it is based on physical appearance/demeanour which is an inherently unreliable guide to age. The policy has been in operation for some considerable time and has undergone some modifications1, but it is with the current version only that this judicial review is concerned.

5. The applicant, a national of Eritrea, was detained under this criterion of the policy from 11 March to 11 September 2014, when he was granted bail by the First-tier Tribunal. He was subsequently re-detained from 7 January – 31 March 2015. His application is brought on behalf of BF by his litigation friend, Francesco Jeff of the Refugee Council. It comes before me at this time as a result of a direction by the President that it not be listed until the Court of Appeal handed down its judgment in Ali, R (on the application of) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 138 (hereafterAli”). This was handed down on 9 March 2017. In Ali the central issue concerned the legal consequences for a claim for unlawful detention of the amendment made by paragraph 18B of Schedule 2 to the Immigration Act 1971 which prohibits detention of a child beyond 24 hours in a short-term holding facility. Inserted by the Immigration Act 2014, this paragraph, together with paragraph 16(2A), came into force on 28 July 2014. Paragraph 16(2A) and 18B of Schedule 2 to the Immigration Act 1971 provide:-


16(2A) But the detention of an unaccompanied child under sub-paragraph (2) is subject to paragraph 18B.


18B (1) Where a person detained under paragraph 16(2) is an unaccompanied child, the only place where the child may be detained is a short-term holding facility, except where—


(a) E+W+S+N.I.the child is being transferred to or from a short-term holding facility, or


(b) sub-paragraph (3) of paragraph 18 applies.


(2) An unaccompanied child may be detained under paragraph 16(2) in a short-term holding facility for a maximum period of 24 hours, and only for so long as the following two conditions are met.


(3) The first condition is that—


(a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24 hour period, or


(b) a decision on whether or not to give directions is likely to result in such directions.


(4) The second condition is that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24-hour period in accordance with those directions.


(5) An unaccompanied child detained under paragraph 16(2) who has been removed from a short-term holding facility and detained elsewhere may be detained again in a short-term holding facility but only if, and for as long as, the relevant 24-hour period has not ended.


(6) An unaccompanied child who has been released following detention under paragraph 16(2) may be detained again in a short-term holding facility in accordance with this paragraph.


(7) In this paragraph—

relevant 24-hour period’, in relation to the detention of a child in a short-term holding facility, means the period of 24 hours starting when the child was detained (or, in a case falling within sub-paragraph (5), first detained) in a short-term holding facility;


short-term holding facility’ has the same meaning as in Part 8 of the Immigration and Asylum Act 1999;


unaccompanied child’ means a person—


(a) who is under the age of 18, and


(b) who is not accompanied (whilst in detention) by his or her parent or another individual who has care of him or her.”


Rregarding this amendment the Court of Appeal in Ali [29] held that:


“…the plain language of the amended provisions compels the conclusion that where, in point of fact, the detainee is an (unaccompanied) child then detention beyond what is sanctioned in paragraph 18B(1) and (2) is unlawful. It does not suffice that there were reasonable grounds for believing or suspecting at the time of detention that the individual was an adult” (per Davis, LJ).

6. The applicant’s challenge is expressed as being to the policy because he does not dispute that it was applied to him as it was intended to apply. Nevertheless, Mr Buttler seeks to rely on the way it was applied to the applicant as an illustration of its inherent defects. In particular, he seeks to rely on the fact that although the applicant was found to be an adult in the first two local authority (‘Merton-compliant’) age assessments (on 6 January 2015 and 24 January 2015 - the latter confirmed by way of an addendum report of 12 March 2015), the conclusion of a third age assessment carried out in September 2015 was that he was a child. Proceedings between the applicant and Newport City Council were resolved on 23 September 2015 by a consent order concluding that the applicant was a child born on 15 February 1998. Such age assessments are referred to as “Merton- compliant” following the judgment of Stanley Burnton J in R(on the application of B) v Merton London Borough Council [2003] EWHC 1689 (Admin).


7. It will be apparent from the above that, whilst the applicant has been involved in litigation regarding his age for some considerable time, the only application with which I am concerned is that lodged on 20 June 2014 challenging his detention on the ground that it was irrational for the respondent’s officials to have thought that the applicant’s physical appearance /demeanour very strongly suggested that he was significantly over 18. By way of amended grounds, this challenge now materialises as a challenge to the policy only.

Procedural history

8. The procedural history of the application is complex.


9. On 26 June 2014 Supperstone J dismissed the applicant's application for release, concluding that the Immigration Officer’s assessment of the applicant’s physical appearance was not irrational. On 9 July 2014 the applicant applied to rely on amended grounds challenging the lawfulness of the respondent’s policy. On the same day Ouseley J transferred the application to the Upper Tribunal. On 10 July Upper Tribunal Judge Kopieczek granted a stay on the applicant’s removal pending determination of the judicial review or further order. On 6 August 2014 Upper Tribunal Judge Peter Lane refused the applicant permission to apply for judicial review. Permission to appeal this refusal was initially refused on the papers by Fulford LJ on 5 November 2014, but on 8 May 2015 Janet Smith LJ granted permission to appeal. On 11 October 2016 the Court of Appeal held that the application was arguable and granted permission to apply for judicial review. By order dated 4 November 2016 the Court of Appeal remitted the application to the Upper Tribunal. Since transfer to the Upper Tribunal the case has been subject to considerable case management designed to ready the parties to address all pertinent issues.


The applicant

10. The background to the...

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