Child detention: More smoke and mirrors

13 January 2011 by Rosalind English

R (on the application of) Reetha Suppiah and others v Secretary of State for the Home Department and Interveners [2011] EWHC 2 (Admin) – Read judgment

A high court judge has ruled that two asylum seekers and their children were unlawfully detained at Yarl’s Wood immigration centre last year.

This ruling will add fuel to the flames of the debate over whether the government is truly committed to ending the detention of children in immigration centres, or whether they intend merely to “minimise” it.

The petitioners were two failed asylum seekers, 37-year-old Malaysian nurse Reetha Suppiah and 25-year-old Nigerian national Sakinat Bello. They were arrested by the UK Border Agency (UKBA) in February 2010 and were taken to Yarl’s Wood, the UK’s main removal centre for women and children on the ground, pending arrangements for their removal from the UK. With them were Suppiah’s two boys, aged one and 11, and Sakinat’s two year old daughter. They were detained for 17 and 12 days respectively.
The Claimants sought a declaration that the Government policy on detaining minors at the centre was so flawed that it could not be operated lawfully. Their grounds for challenge further alleged that the rights of the Claimants under Articles 3, 5 and 8 of the European Convention had been breached.

Legal Basis for Detention

In all the controversy surrounding child detention for immigration purposes it is easy to lose sight of the statutory underpinning of the Secretary of State’s power to detain in these circumstances. A person may be detained pending deportation pursuant to paragraph 2(3) of Schedule 3 of the Immigration Act 1971, and a number of factors may be taken in to account in determining whether this detention is necessary. Refusal of voluntary repatriation is one of them.

Judicial opinion differs as to the weight to be attached to this factor but no-one denies its relevance; as Toulson LJ said in R(A) v Secretary of State for the Home Department,

it is important not only as evidence of the risk of absconding but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return at once. In the latter case the loss of liberty involved in the individual’s continued contention is a product of his own making.

In this case Wyn Williams J did not consider that voluntary return had not been properly or adequately offered to the claimants, and therefore this was not a factor which justified detention. And the issue of failure to adhere to and/or apply the Defendant’s policy on safeguards for children was not on its own determinative. There were, according to the judge, much more wide-ranging reasons why this detention was unlawful – “in the light of domestic legislation, principles of domestic law which have evolved in the courts and by virtue of Articles 5 and 8 of the ECHR.”

The sixty-six page judgment – which is heavily fact-specific – does little to elucidate what these principles are.

The UKBA Policy

A policy entitled “Enforcement Instructions” setting out specific safeguards for children under immigration control was brought in to implement the requirements of Section 55 of the Borders, Citizenship and Immigration Act 2009. It contains a wealth of provisos and instructions designed to promote the welfare of children, making it clear that detention must be used sparingly and for the shortest period necessary. Officials must consider all reasonable alternatives to detention; they must take in to account relevant factors when considering the need for detention, such as evidence of a determined attempt to breach immigration laws such as clandestine entry. Any decision to detain an entire family must “always be taken with due regard to Article 8 EHCR”. (Chapter 55.9 )

However, the bottom line is still that illegal entrants are not immunised from immigration controls because they have children with them:

families including those with children can be detained on the same footing as all other persons liable to detention and in line with the general detention criteria (55.1)

Wyn Williams J did not see how this last “suggestion” could be compatible with Section 55 of the 2009 Act. But that section refers to the special factors to be taken in to account in the decision to detain families with children; it has no basis in (a non-existent) statutory exception to the means by which the UKBA enforces normal immigration controls. In any event the judge, despite his misgivings about that particular section, had no doubt that the policy itself was still lawful. He rejected the claimants’ assertion that the policy could never be operated lawfully in practice, pointing in particular the impracticability of their call for the involvement of a social worker at the intitial detention stage (see para 213)

The claimants may have been unlucky in drawing a judge who had specifically ruled, in an earlier case, that the UKBA policy conforms to the UK’s obligations under UN Charter on the Rights of the Child; in any event he was not prepared to change his position on this. The focus of his determination therefore had to be on the level of adherence to it:

The Defendant’s current policy relating to detaining families with children is not unlawful. There is, nonetheless, a significant body of evidence which demonstrates that employees of UKBA have failed to apply that policy with the rigour it deserves.

There is anyway considerable uncertainty over whole question of whether failure by the Home Secretary to act in accordance with her published policies relating to detention renders the detention in question unlawful. The Supreme Court is about to give judgment in two cases which will provide the answer to the point and others related to it (the appeals from the Court of Appeal in R(SK(Zimbabwe)) v SSHD and R(WL) (Congo) v SSHD.

Convention Rights

The claimants got home, generally, on their Convention rights, although it is difficult to pick out with any precision the ratio of this part of the judgment, occluded as it is in the dense mass of material advanced by the intervening parties. Two out of the three Convention claims were successful: Articles 5 and 8. The former merited no discussion in the judgment. In respect of the latter, the claimants submitted that when balancing competing considerations under the right to respect for family life, the paramount consideration is the interests of the child or children.

The judge rejected this submission, along with the claimants’ contention that, in considering whether there was evidence of inhuman and degrading treatment for the purposes of Article 3, the normal high threshold should be lowered when the subject is a child with poor English. Such favouritism in its application would invite further criticism of the Convention from those who see it as something as a hostage to fortune in immigration matters.

The most noteworthy feature of this judgment is that nowhere does it say – nor was it contended by the claimants themselves – that a policy which permits the detention of families with children can never be lawful, or that detention of children can never be lawful whatever the terms of the Home Office policy. This argument is therefore still unvindicated by the courts; it remains to be seen whether it wins the day by virtue of government action.

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