24 Oct 2016, 35 mins ago

In the case of Home Office v VS [2015] EWCA Civ 1142 the Court of Appeal upheld the High Court ruling that the Home Office had unlawfully detained a child asylum seeker.

VS came to the UK on 2 July 2012 to seek asylum. VS was arrested on the morning of his arrival after he was seen getting out of a lorry and he was detained under the Immigration Act 1971. On arrival at the immigration detention centre VS gave his details including his date of birth which indicated he was sixteen years old and he was therefore treated as a minor. VS was interviewed in the detention centre before being referred to Kent children’s services. VS was then granted temporary admission later that evening- it being Home Office policy not to detain minors since 2010.

Whilst in the care of Kent children’s services VS was assessed as being two years older than the date of birth he had given at the detention centre. Thus Kent concluded that VS was an adult and informed the Home Office of their conclusions on 17 July 2012 and stated the assessment to have been ‘Merton‘ compliant. However, the full reasons for the conclusions reached by Kent children’s services were not communicated to the Home Office at this time. Nonetheless the Home Office began treating VS as an adult at this stage and he was detained.

Subsequently VS was able to provide copies of his birth certificate, national identity card and school certificate from Iran. Kent children’s services then agreed to reassess the age of VS and they concluded in November 2012 that he was the age he had claimed since arriving in the UK. By this time VS had already been released in connection with judicial review proceedings but his second period of detention as a minor lasted from 17 July 2012 to 10 August 2012.

The issue with the first period of detention on 2 July 2012 was whether VS should have been referred to Kent children’s services more quickly. Lady Justice Black agreed with the High Court finding that there should not have been a delay in the referral while the Home Office questioned VS. She states ‘it is self-evident that the interests of children will not be served by unnecessary delay in referring them to the local authority’.

The issue with the second period of detention was whether the Home Office had sufficient evidence on the 17 July 2012 to conclude that VS should be treated as an adult and therefore be suitable for detention. Lady Justice Black again agreed with the High Court ruling that the Home Office should have obtained ‘in writing the reasons on which the conclusion was based [that VS was 18 years old].’ She continues that she is not impressed by the argument of the Home Office that requiring the written reasons is ‘unworkable and unrealistic.’

The reason why it is considered important for the Home Office to obtain written reasons is because they themselves are ‘under a public law duty to make the necessary inquiries in order to arrive at an informed decision.’ Lady Judge Black concludes it is clear that the Home Office must have more than a simple assurance from another party. The judgment itself details further reasoning as to why the evidence provided to the Home Office on 17 July 2012 was too ambiguous and vague for the Home Office to have been able to come to an independent conclusion as to whether VS should be treated as an adult.

Lord Justice Tomlinson and Lord Justice Burnett agreed with the findings and conclusions of Lady Justice Black. It should also be noted that the position on age assessment has moved forward since the facts of the case in 2012 including new “Age Assessment Joint Working Guidance“.

The importance of the ruling in this case is highlighted by Jessica Whitehead of Coram Children’s Legal Centre (the solicitors acting for VS); ‘we should hope to see the Home Office making earlier referrals to local authority children’s services for support and more vulnerable refugee children being spared the harrowing experience of the adult immigration detention system.’ The impact being immediately evident as the Free Movement blog states ‘a number of similar claims on behalf of detained children are due to be considered by the courts in light of [this] judgment.’