The Court of Appeal Rules Government are unlawfully detaining children

In a landmark judgment given by the Court of Appeal in the case of Abdul-Muttalab Ali v Secretary of State the court ruled that the Government have been unlawfully detaining vulnerable unaccompanied asylum seeking children since 2015.

The case was on appeal from an earlier High Court judgment by Mr Justice Silber (AA v SSHD [2016] EWHC 1453 (Admin)) who also found in the Claimant’s favour that it was unlawful for the Government to detain an asylum seeking child on the basis of a visual age assessment that their appearance suggested they were older than 18.

Stuart Luke, Partner and Head of the Community Care and Public Law Team was instructed by the Claimant to bring the challenge.  On appeal the case was also assisted by a valuable written intervention by the Equality and Human Rights Commission.  The Claimant was represented by Ian Wise QC and Michael Armitage of Monckton Chambers

The case concerns a vulnerable 16 year old child who was detained by Immigration Officials on the basis that they assessed him, on appearance alone, to be significantly older than 18.  Prior to being detained the Claimant was in the process of being assessed by Wolverhampton City Council Social Services who shortly after he was placed in Immigration Detention completed a lawful age assessment, concluding that he was a child.  The Home Office continued to detain the Claimant on the basis of a visual assessment that he was over 18.  Proceedings were promptly issued at the High Court and the Secretary of State for the Home Department released the Claimant immediately into social services care.

The question for the court was whether it was lawful for a decision to detain a young person in immigration detention who claims to be a child on a cursory glance by Immigration Officials.  The court found unanimously that to detain an unaccompanied asylum seeking child on this basis was unlawful and the question of whether a young person is or is not a child is a matter of objective fact which can not be lawfully or rationally determined on the basis of a visual age assessment.

The judgment has far reaching implications for how the Government must treat vulnerable unaccompanied children and the circumstances when a power can be exercised to detain a putative child.

The case challenged the interpretation of Paragraph 18B of the Immigration Act 1971 which was introduced following judgment of the Supreme Court in AA(Afghanistan) in 2015 which had found that it was not unlawful for the Government in complying with its welfare duty to children under Section 55 of the Borders Citizenship and Immigration Act to assess age on the basis of appearance and detain in circumstances where the Home Office believed a young person was significantly older than 18.  The court found that whilst the provision had been drafted after the AA(Afghanistan) case it could not follow that decisions to detain on that basis continued to be lawful.  The court found that the wording in Paragraph 18B had to be given ordinary meaning and could not be reliant on interpretation on general principals from previous caselaw.  In interpreting the meaning of Paragraph 18B the court had to find that it was unlawful to detain a young person if they were a child regardless of whether Home Office believed to the contrary they were an adult on the basis of a visual assessment.

If you would like to discuss the judgment or discuss the effects and application on existing or historical cases please do not hesitate to contact Stuart Luke at stuart.luke@bhatiabest.co.uk or 0115 9503231 option 4