England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 November 2015

Michael Kent QC :

1. In these proceedings, started as long ago as June 2012, the Claimant seeks: (1) a Declaration as to his date of birth, namely that he was born on 10 October 1997; (2) a Declaration that he was unlawfully detained between 21 May and 1 June 2012, alternatively between 28 May and 1 June 2012 and, (3) damages for unlawful imprisonment, alternatively just satisfaction for breach of Article 5 ECHR. The proceedings were started against the Secretary of State for the Home Department as First Defendant and Birmingham City Council as Second Defendant although the proceedings against the latter have been discontinued. Permission to proceed with his claim for judicial review against the Secretary of State was given by Mr. Richard Clayton QC sitting as a Deputy High Court Judge.
2. At the outset of the hearing I heard an objection by the Claimant to a new point raised for the first time in a Skeleton Argument on behalf of the Defendant served on the Claimant's solicitors only at 4pm the day before the hearing. This asserted that the Claimant was estopped from seeking to challenge the correctness of the age assessments carried out by Birmingham City Council alternatively invited this Court as a matter of discretion to refuse to allow the Claimant to reopen that issue.
3. The relevant factual background is as follows: the Claimant, a national of Afghanistan, made himself known to the police in Birmingham on 20 May 2012 saying that he had arrived in the UK on that day on a lorry. The police contacted Birmingham City Council and two social workers from that local authority carried out some sort of interview which resulted in a "To Whom It May Concern" document headed "No Statutory Duty to Provide Services Under the Children Act 1989". This was faxed to the UK Border Agency on 21 May 2012. In the meantime immigration officers had attended the police station and placed the Claimant in immigration detention pursuant to paragraph 16 of Schedule 2 to the Immigration Act 1971. The Claimant had asserted that his date of birth was 10 October 1997 in which case he would then have been aged 14 years and 7 months. The social workers from Birmingham City Council determined that he was in fact over 18 and for that reason was not entitled to services under the Children Act. On the basis of that finding the immigration officials also treated the Claimant as an adult.
4. Despite having the statutory power to detain a child under Schedule 2 to the 1971 Act the Secretary of State has issued guidance to immigration officers in Chapter 55 of the Enforcement Instructions and Guidance (EIG) which states that only in exceptional circumstances would an unaccompanied child be put into immigration detention. It has not been suggested that there were any exceptional circumstances in this case had the Claimant indeed been treated as a child in May 2012. It is further not in issue that, in light of that guidance, the detention of the Claimant between 21 May and 1 June 2012 would be unlawful for any period during which the Defendant's officials either knew that the Claimant was under 18 or, if in doubt, ought to have treated him as under 18 at the time. The detention would not be unlawful simply because it could later be shown that in fact the Claimant was a child: R (AA) (Afghanistan) v. Secretary of State for the Home Department [2013] 1 WLR 2224 SC but a failure to comply with a public law duty to give effect to a published policy sufficiently closely related to the authority to detain so as to provide a qualification to the statutory power of detention, in the absence of good reasons for such failure, would itself render the detention unlawful: R (Kambadzi) v. Secretary of State for the Home Department [2011] 1 WLR 1299.
5. Further it is no answer to a claim for damages for false imprisonment or for just satisfaction under Article 5 ECHR that the Claimant could lawfully have been detained for different reasons in any event, although that will be relevant to the question whether the Claimant is entitled to substantial as opposed to merely nominal damages for the detention: Lumba v SSHD [2011] UKSC 12; [2012] 1 AC 245.
6. As I have said the proceedings against Birmingham City Council were discontinued. This followed a further assessment of the Claimant's age carried out later in 2012 by Birmingham City Council following the Claimant's release from detention on 1 June 2012 in obedience to an interim relief order granted by Thirlwall J on that day. The further decision as to the Claimant's age made by Birmingham City Council, namely that his correct date of birth was 10 October 1993, was not the subject of continued challenge in these proceedings it is said because the Claimant was not in need of assistance under the Children Act so that, so far as Birmingham were concerned, the proceedings served no further purpose. That, however, left unclear whether and to what extent the Claimant was still seeking a declaration as against the Secretary of State that his date of birth was 10 October 1997.
7. As a matter of history the Claimant also challenged (this time by an application for judicial review in the Upper Tribunal) a decision of the Secretary of State to return him to Austria under the Dublin III Regulation on the basis that he was over 18 in reliance on the second Birmingham CC age assessment but permission was refused on paper and the application has not been renewed.
8. In his Skeleton Argument dated 15 October 2015 Mr. Suterwalla for the Claimant made it clear that the question of his client's true age remained a live one although at the commencement of the hearing before me he said he did not expect that issue to be decided at this stage: rather his client would seek, in the event that I accepted that he had been unlawfully detained, a further hearing when it could be determined. Mr. Anderson for the Secretary of State accepted that, in view of the late raising of the point, it was not appropriate for me to deal with his objection to the Claimant pursuing this issue of his actual age based on an alleged issue-estoppel or the Court's discretion in the matter in this part of the proceedings but that he wished to keep open such possible objection if the matter goes forward. Indeed he went further and said, after taking instructions, that the Defendant would be content with the whole issue of causation (that is to say what would have happened had the failure to comply with published policy—if there was such a failure—had not occurred) to go off to another occasion. Mr. Suterwalla was also content for that to happen and in that event did not object to the new point taken by the Defendant as he would then be prepared to answer it. However, I did not accept that all issues of causation should be left over to another hearing because of the overlap between the issue whether the immigration officials acted unlawfully and the question whether, if they had, they could and would nevertheless have lawfully detained the claimant. I accepted though that the question of the claimant's actual age (and the prior question whether he is estopped or should otherwise be prevented from pursuing that issue) should not be decided on this occasion.
9. I turn therefore to the merits of the contention that the Claimant should, in accordance with the Defendant's published policy, have been treated as a child and not detained, alternatively should have been released on 28 May or soon thereafter and before 1 June when he was released on the order of Thirlwall J. The primary argument on behalf of the Claimant is as follows: in addition to the guidance in Chapter 55 of the EIG the immigration officers were required to apply the guidance in a document entitled "Assessing Age". This is not confined to cases where, as here, a decision has to be taken whether to detain an asylum seeker. In Section 2 "Assessing Age – General Policy" there is guidance in circumstances where "there is little or no evidence to support the applicant's claimed age and that their claim to be a child is doubted". Section 5 covers the situation where a local authority has conducted an assessment of an applicant's age with a view to deciding whether the person is entitled to services under the Children Act 1989. In this section there is a reference to B v. London Borough of Merton [2003] EWHC 1689 (Admin), a judgment of Stanley Burnton J which was concerned with the correct approach a local authority should adopt in such circumstances. In paragraph 5.1 of the Assessing Age guidance there is a reference to "some of the key points noted by the Court" in the Merton judgment and these are discussed under seven bullet points. I will return to that later but the guidance, at paragraph 5.3, contains this:

"Obtaining the local authority's age assessment

Case owners should request a full copy of the local authority's age assessment and confirmation from the local authority that it has been carried out in compliance with the guidelines in the Merton case".

Further down is this:

"Case owners should discuss with the relevant local authority and obtain in writing, at the very least their assessment conclusion, the reasons on which their conclusion is based and an assurance that their assessment complies with the local authority's assessment policy and the guidelines in the Merton case". [Emphasis in the original].

10. In Chapter 55 of the EIG at 55.9.3.1 under the heading "Persons claiming to be under 18" there is this:

"The UK Border Agency will accept an individual as under 18 (including those who have previously claimed to be an adult) unless one or more of the following criteria apply:

there is credible and clear documentary evidence that they are 18 years of age or over;

a full "Merton-compliant" age assessment by Social Services is available stating that they are 18 years of age or over. (Note that assessments completed by Social Services emergency duty teams are not acceptable evidence of age);

their physical appearance/demeanour very strongly indicates that they are significantly over 18 years of age and no other credible evidence exists to the contrary". [Emphasis in original].

11. There is a document dated 21 May 2012 entitled "Screening Officer's Report" in which in this case a box is ticked against text which says "A full "Merton-compliant" (i.e. not that completed by Emergency Duty Teams) social services assessment is available stating they are 18 or over". It has been said on behalf of the Defendant more than once since this claim was started that that box was ticked in error and the box that should have been ticked was one which stated "Their physical appearance/demeanour very strongly indicates that they are significantly over 18 and no other credible evidence exists to the contrary". However shortly before the hearing before me there was a change of tack and it was and is asserted that the correct box had been ticked: there had been a full Merton-compliant assessment by Social Services and that was what was being relied upon to justify detention of the Claimant as an adult. Mr. Suterwalla understandably suggests that this double U-turn provides further evidence of a failure properly to consider his client's age and the application of the Defendant's published policy which itself makes the detention unlawful. My view is that while this is unfortunate the documents that have been disclosed make the position clear enough: the "To whom it may concern" document from Birmingham City Council dated 21 May 2012 is indeed the basis upon which a decision was made to treat the Claimant as an adult. I have been provided with no evidence from anyone involved in that decision to the effect, for example, that they themselves formed an independent view that the Claimant was significantly over 18 let alone that that was "very strongly" indicated by his appearance or demeanour. It seems clear therefore that the only basis for treating the Claimant as an adult was the assessment by Birmingham City Council social workers and I propose therefore to see whether that basis provided sufficient justification, in accordance with the Secretary of State's published policy, to treat the claimant as an adult.
12. The document dated 21 May from Birmingham City Council sets out the Claimant's claimed date of birth as 10 October 1997, records the fact that the person in question had not produced any official documentation in support of his claim but that "two case workers have found the above person is aged over the age of 18". It goes on, "the two workers from Birmingham Unaccompanied Minor's Service, have had training and experience in age assessments and working with children and young people seeking asylum". The document is signed by two individuals described as social workers and their address is given as "Children, Young People & Families Asylum & Persons from Abroad Team". There is this in the text of the document:

"Their decision is based on the physical appearance and presentation of the above person, and is Merton-Compliant:

"There may be cases where it is obvious that the person is under or over 18. In such cases there is normally no need for prolonged enquiry... (see below*)".

They say that the person in question has been informed of the decision with the assistance of an interpreter.

13. The text is a little confusing particularly the quotation with a reference to something to be seen below which nevertheless does not appear in any footnote or postscript. However it is clear that the quotation is from part of the judgment of Stanley Burnton J in the Merton case and it seems to me that, while it could have been set out rather more clearly, what these two social workers were saying was that this was a case where the person presented to them as experienced social workers used to determining such matters was obviously over the age of 18 such that there was no need for a prolonged enquiry into the question. That may explain why, as the Claimant himself recalls it, the interview lasted for less than half an hour.
14. Mr. Suterwalla's argument was this: section 55.9.3.1 of the EIG requires Officials to accept an individual as under 18 unless one or more of the three criteria (quoted above) apply. Insofar as the second bullet point is relied on that requires "a full 'Merton-Compliant' age assessment by Social Services" and that cannot include an assessment by social workers based on their view that the person is obviously over 18 so that there is no need for a prolonged enquiry. He points out that the EIG, in cross-referring to the Age Assessment Guidance, requires immigration officers to follow section 5.1 of the latter which sets out what a "Merton-compliant" assessment will include and this implies that a fairly prolonged enquiry will have been pursued. That contains a non-exhaustive list of the ingredients of such an enquiry and case law has built on the guidance given by Stanley-Burnton J in the Merton case. That case law is, of course, directed to the responsibilities of local authorities under the Children Act but Mr Suterwalla says that, as the Secretary of State's own guidance requires a "full Merton-Compliant" assessment from the local authority, the guidance indirectly incorporates the additional requirements laid down by the reported cases.
15. He notes that some of this case law has added to the procedural safeguards laid down in the Merton case and referred me to judgment of the Court of Appeal in R(Z) v. Croydon London Borough Council [2011] EWCA Civ 59 in which Stanley Burnton J's guidance in the Merton case was referred to with approval. In paragraph 25 of that judgment the Court said "in our judgment, the Claimant should have had the opportunity to have an appropriate adult present, and the fact that he was not given this opportunity contributes to our decision whether he should be given permission to proceed". That additional requirement was recorded in AS v. London Borough of Croydon [2011] EWHC 201 (Admin) by HH Judge Anthony Thornton QC who summarised what he described as "the minimum standards that are to be expected of an age assessment" in paragraph 19. Mr Suterwalla says that there is nothing that told the immigration officers that an appropriate adult was present at the interview with Birmingham social workers on 21 May 2012.
16. It seems to me however that the Court of Appeal in the (Z) case were simply commenting that, on the facts of that particular case, it was arguable (they were considering an application for permission to proceed with the claim for judicial review) that an appropriate adult should have been present. So I am rather doubtful whether that can be said to have become an essential ingredient of a "Merton-compliant" assessment. These cases must depend on their own facts: many local authority assessments will be concerned with the question not whether the person before them is an adult or not but, accepting he or she is under 18, what exactly is the correct age for the purpose of deciding what services and what level of services should be provided by the local authority.
17. Mr Suterwalla notes, correctly, that the Secretary of State has not sought to rely on either of the other two routes laid down in 55.9.3.1 of the EIG to treating a Claimant as an adult notwithstanding his claim to be under 18 including credible and clear documentary evidence that they are 18 years or over or physical appearance/demeanour which "very strongly indicates that they are significantly over 18". He says that a document setting out briefly the conclusion of the social workers that the Claimant was over 18 and saying in effect that this was an obvious conclusion based upon the physical appearance and presentation of the person before them is not a full Merton-compliant assessment notwithstanding the fact that the document itself says it is "Merton-compliant".
18. I suggested to Mr. Suterwalla that that creates a practical difficulty for immigration officers who are likely to regard themselves as far less qualified to make judgments about the age of an individual than social workers from a specialist unit in a local authority used to determining such matters. The Assessing Age guidance itself says at para 5.2 that "Case owners should give considerable weight to the findings of age made by local authorities, recognising the particular expertise they have through working with children. In cases where the local authority's assessment is the only source of information about the applicant's age-their assessment will normally be accepted as decisive evidence".
19. Mr Suterwalla nevertheless argued that the authorities show that the decision as to the age of a person who might be liable to immigration detention is one for the immigration officers who cannot delegate it to the local authority. The local authority's judgment for its part must be fully reasoned and must follow a number of procedural requirements designed to allow the matter to be properly and fairly tested. The authorities have acknowledged for example that "physical appearance is a notoriously unreliable basis for an assessment of chronological age".
20. Mr. Suterwalla drew my attention to a decision of Mr. Simon Picken QC as he then was sitting as a Deputy Judge of the High Court in VS v. The Home Office [2014] EWHC 2483 (QB), a case which has I am told been subject to an appeal that has been argued but on which judgment is awaited. Mr. Picken reviewed the authorities and gave guidance on paragraph 5.3 of the Assessing Age guidance which requires the obtaining of the local authority's reasons for their decision. Mr. Picken made the point that as Stanley Burnton J himself put it in the Merton case "a statement of the decision of the local authority" is not the same as stating "the reasons for its decision". Mr. Suterwalla also drew my attention to a decision of Walker J in Durani v. Secretary of State for the Home Department of Nottinghamshire County Council [2013] EWHC 284 (Admin) where he concluded that the reasons obtained for the purposes of the Assessing Age guidance were not sufficient because, although social workers stated they had relied upon the claimant's physical appearance, they had provided no information "as to what particular physical features were relied upon". However I note that in that case the Claimant was claiming to be 14 years old and the local authority assessed him as being age 17, so still a child but no doubt in need of rather different services from the local authority. It seems to me that it is one thing to say that someone's physical appearance shows that they are obviously over 18 (i.e. fully mature) without having to spell out what features of the physical appearance led to that conclusion and quite another to say, without giving details which justify the conclusion, that someone is 17 as opposed to 14.
21. Both Stanley Burnton J in the Merton case and the Court of Appeal in the (Z) case approving of the Merton judgment stated in terms that the various procedural safeguards that a local authority should adopt were required "except in clear cases". The clear cases were those where age could be determined solely from appearance. In the Merton case itself Stanley Burnton J said at paragraph 27:

"Of course, there may be cases where it is very obvious that a person is under or over 18. In such cases there is normally no need for prolonged enquiry..."

22. In the Assessing Age guidance the second bullet point under the key points from the Merton judgment noted in paragraph 5.1 quotes from the Court of Appeal in (Z): "Except in clear cases, the decision maker cannot determine age solely on the basis of the appearance of the applicant". Mr. Suterwalla nevertheless says that as the EIG at 55.9.3.1 in requiring there to be "a full 'Merton-Compliant' Age assessment by social services" is not contemplating one of the exceptions where the case is, as far as social services is concerned, obvious. In my view, although one ought if possible to give effect to all the words in this paragraph including the adjective "full", this in context can only be read as an emphatic way of referring to an age assessment that has been carried out in accordance with the guidance given to local authorities in the Merton and subsequent cases. As that case law shows that there is no need for a prolonged enquiry where, to the social workers, the matter is obvious it seems to me that the EIG is contemplating that a document such as the one dated 21 May 2012 in this case will be sufficient for immigration officers to treat the person before them as an adult.
23. I note that the Screening Officer's report to which I have referred contains four possible boxes to be ticked, the first three of which summarise the bullet points in 55.9.3.1 of the EIG and provide a basis for an applicant being treated as an adult for the purpose of the asylum process including detention. The fourth bullet point says this:

"Their physical appearance/demeanour strongly suggests that they are 18 or over (NB if only this box is ticked, the applicant will be treated as an adult for the purposes of the asylum process, but will not be detained pending consideration of their claim)".

24. The contrast between that and the third bullet point where the physical appearance/demeanour "very strongly indicates that they are significantly over 18" may be noted. It seems to me however that it is understandable that Home Office officials are given a higher hurdle to jump before they can be satisfied from physical appearance or demeanour alone that an applicant is an adult than that given to experienced social workers performing functions under the Children Act 1989 for whom it may be sufficient that it is "obvious" that the person is over 18. That is understandable because of the specialist skill to be expected of social workers in that context.
25. It is said that nevertheless, because the decision of the immigration officers who attended Kings Heath Police Station concerned the Claimant's liberty, they were not entitled to rely on the conclusions of social workers based on a lower threshold of belief at any rate without asking for a fuller or more detailed explanation from them. In my judgment that is not right: the reason for the higher threshold for immigration officers making their own determination is that, where they have to act on physical appearance or demeanour without the benefit of a local authority assessment, they are having to make a judgment based on limited experience and skill. But where there is a local authority assessment they are entitled to rely on it as long as it is certified as being "Merton complaint" and short reasons are given for the assessment. That includes cases where to the social workers the answer is obvious. I therefore reject the contention that the detention of the Claimant was unlawful from the outset.
26. Did it become unlawful when, on 28 May 2012, the Claimant's father wrote to the UKBA enclosing a copy of his own British passport and also a copy purporting to be the Claimant's Birth Certificate evidencing his birth on 10 October 1997? It is argued that when this document was presented to the UKBA on 28 May the detention, if not already unlawful, became unlawful because at that point there was a requirement to treat the Claimant as a child until the matter could be clarified. Mr Suterwalla relies upon another part of 55.9.1 of the EIG which states:

"In borderline cases it will be appropriate to give the applicant the benefit of the doubt and to deal with the applicant as a child".

My attention was drawn to the paragraph of the Assessing Age guidance which says this:

"8.2 New relevant evidence received post-age decision

Case owners will normally need to review a decision on age if they later receive relevant new evidence (including the grounds of an appeal). Where the original decision on the applicant's age was based on a local authority assessment, the local authority should normally be made aware of the new evidence and be invited to review their earlier decision. The local authority's view should be considered by the case owner before they reconsider the decision on age".

27. The argument is that the provision of the Birth Certificate (and the fact that the Claimant's father was prepared to support the claimed date of birth by sending it in) required the local authority to be made aware of the new information and invited to review their earlier decision. In the meantime the Claimant should be released either into the local authority's care or into the Claimant's father's care until the matter could be clarified. Mr. Anderson responds by saying firstly that the new information was not something upon which the local authority could shed any greater light than the Home Office itself: the former already knew about the existence of the Claimant's father in the UK and the real issue was whether this was a genuine Birth Certificate. We know that the document was sent off to the Third Country Unit of the UK Border Agency by a duty officer at the Brook House Removal Centre at Gatwick on the 28 May 2012 because there is a faxed message of that date accompanied by the Birth Certificate, the letter from the father and a copy of the father's British passport. There is no evidence of any further contact with the local authority. However it seems to me that the guidance which states that in cases of new relevant evidence appearing the local authority should normally be made aware of it did not require Birmingham City Council to have been made aware of this new development. It made more sense to send the material to the Third Country Unit who themselves would need to know that the claimant was over 18 before implementing a decision to return him to Austria where he had first entered the EU and would no doubt be able to commission their own enquiries as to whether Birth Certificates were ever issued in the English language in Afghanistan. It seems to me also that, while the EIG does not appear directly to deal with this situation, on a sensible reading of this guidance it cannot be the case that a person lawfully in detention must immediately be released because a document is produced which, if correct, shows a previous decision about age to have been wrong but whose authenticity may be doubted.
28. In the event the Claimant was released by Order of Thirlwell J only some three days after the arrival of the father's letter and I am not satisfied that during those three days or any part of them the officials concerned were required by the relevant published policy and guidance to have released the Claimant so as to render all or part of that period of detention unlawful.
29. For those reasons this claim against the Secretary of State fails. In the circumstances it is not necessary for me to deal with the causation issue, namely whether the Claimant would be entitled to only nominal damages for any unlawful detention as opposed to substantial damages, on the basis that the Defendant might have had proper reasons to detain the Claimant in any event. That itself would depend on the basis for a finding that the detention had been unlawful. If that basis was that insufficient reasons had been obtained from the local authority as to why they assessed the claimant as over 18 I would have found that the Defendant would succeed on the causation issue and the claimant would not in any event have been entitled to more than nominal damages. I can state briefly my reasons for that conclusion.
30. There is an issue as to the burden of proof on that point: I suspect, in accordance with ordinary principles applicable to a claim in tort, the legal burden remains on the Claimant on that issue but there is an evidential burden on the Defendant to adduce evidence tending to support a case that the Claimant would in the event have been lawfully detained. However I doubt that the burden of proof makes much difference to the outcome on this issue as it must always be a matter of inference from surrounding circumstances what would have happened in that hypothetical situation. It is said that, had the detention been shown to be unlawful from the outset, the UK Border Agency officers visiting Kings Heath Police Station would simply have been content to leave the Claimant in the care of the local authority for them to complete a proper Merton-compliant assessment of his age if, contrary to what I have held, they had not already done so. In my view the probabilities are—and I would have so found if necessary—that Birmingham City Council would have declined to take the Claimant into their care saying they had made their determination that he was over 18 and he was not their responsibility. I think it unlikely that the UK Border Agency officers would have been content to walk away leaving at large an asylum seeker who had made himself known to the police. We now know, because it is set out in the findings of the Birmingham City Council in their further assessment dated 20 December 2012, that on 17 July 2012 there was a home visit carried out when the social worker records this about the Claimant:

"I saw [G] for the first occasion today and my immediate reaction was he is an adult. He is approximately 6 feet 2 inches to 6 feet 3 inches tall and of slim build. His physical appearance and features strongly indicate [G] is an adult."

That was less than two months after the date when he had initially been assessed on the 21 May and when we can see in notes made at the time and subsequently disclosed in these proceedings that the Claimant gave his age as 15 years and 8 months inconsistently with his claimed date of birth of 10 October 1997. In all the circumstances, although I do not suggest that it would be open to the Court to say that the immigration officers themselves would have been satisfied according to the higher threshold set by the EIG that to them the physical appearance/demeanour "very strongly" indicated that the Claimant was an adult, the Birmingham City Council social workers would have continued to maintain that it was obvious to them and would have explained why to the immigration officers, giving further details such as his height which could be verified by the officers' own inspection of the Claimant. That would have satisfied the Defendant's officers that a Merton-compliant assessment had been carried out and they could accept that as evidence that he was over 18.

31. On the other hand if I am wrong to say that a "full 'Merton-Compliant' age assessment" does not include a case where the social workers state that the person is obviously over 18, then the practicalities of arranging a full enquiry containing all the safeguards imposed by the authorities on social workers would have been such that some delay would have been unavoidable: until that was completed the Claimant would, in accordance with the EIG, have had to be treated as under 18 and the probability is that he would in the meantime have been released to the care of his father.
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