Court of Appeal: immigration age assessments and Merton

6 January 2016 by

Two recent Court of Appeal cases, heard together, have considered the legality of the immigration detention of those who are, or possibly are, minors. Such cases involve local authority age assessments, which are to be carried out according to the guidance set out in Merton [2003] EWHC 1689 (Admin).

Four principles in particular are of note:

  1. Where the Secretary of State (SSHD) does not have the full local authority age assessment, a summary provided by the local authority may not give sufficient reasons for the conclusions reached;
  2. Where detention is unlawful for absence of reasons, only nominal damages will accrue in circumstances where, had the Home Office engaged with the local authority on the point, it would have been satisfied that the assessment was in fact Merton compliant;
  3. Although the question of whether or not an assessment is Merton compliant is to be understood as a question of whether or not it is compliant with Merton and subsequent case law, it is to be determined as at the date of the assessment, and not as against any later case law;
  4. A judicial finding of the First-tier Tribunal (FTT) of a claimant’s age may in itself constitute ‘clear and credible documentary evidence’ that he is 18 or over.

The first case is VS [2015] EWCA Civ 1142. An Iranian national was arrested on 2 July 2012 on the back of a lorry, and detained pending a decision whether or not removal directions would be given. He gave a date of birth making him 16 years old. After an interview, he was referred that day to Kent children’s services and released. Subsequently, Kent assessed his age as being 18 and communicated that fact to the Home Office by way of a summary document, whereupon the claimant was detained from 17 July 2012 until 10 August 2012. He was, in fact, a child at the time, as was later acknowledged.

The main question in the case was whether the Claimant’s detention from 17 July 2012 was unlawful. The trial judge concluded that it was not, considering that the Home Office’s guidance required her to have three things from the local authority, namely their assessment conclusion, the reasons on which that conclusion was based, and an assurance that the assessment complied with the local authority’s assessment policy and the Merton guidelines, and Kent’s “Age Assessment Results” document did not, in his view, provide the reasons on which Kent’s conclusion was based.

Before the Court of Appeal, argument focused particularly upon paragraph 5.3 of the Assessing Age guidance:

“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.”

The material issue was the second: obtaining in writing “the reasons on which their conclusion is based”. Lady Justice Black (with whom Burnett LJ and Tomlinson LJ agreed), considered that what was primarily required was a full copy of the age assessment. If the local authority did not provide that, a possibility the guidance expressly contemplated (in view of local authority concerns in respect of data protection, absent consent being given), then the question was what sufficed as a second-best option. The Home Office argued that the summary form itself was sufficient to disclose the reasons for the conclusion reached. The Court of Appeal agreed with the trial judge that it was not, and rejected the contention that it would be too burdensome to require a further document (i.e. more than the summary assessment, but less than the full assessment report). The Court of Appeal also upheld the judge’s related conclusion that the Home Office failed to discharge its independent duty to ensure that the age assessment complied with the Merton principles, finding that the Home Office was unable to discharge this without more information than was contained in the summary document.

In the second case, ZS (Afghanistan) [2015] EWCA Civ 1137, the same Court of Appeal panel considered the detention in 2011 of a 17 year-old from Afghanistan, understood to be over 18. He had arrived in 2009, and had been assessed in February 2009 by Kent county council as being over 18. That underlying assessment was never provided to the Home Office. In August 2010, the FTT heard his appeal against the refusal of his asylum claim. It was noted that the judge was “meticulous” in seeking to enable the appellant to explain his case fully; he found that the appellant was over 18 when he arrived in the UK. Social workers for Cardiff county council then initially indicated in October 2010 that the Claimant was under 18, but this was made without awareness of the Kent assessment and the judge’s finding and a formal assessment as 18 was subsequently made. This was challenged by way of judicial review; permission having been granted Cardiff decided to treat the claimant as under 18 after all. Home Office was informed of this by the claimant, but decided to uphold the FTT judge’s view, because the Cardiff decision was based on three letters all of which were before the FTT judge, and the claimant was detained pending removal.

Before the Court of Appeal, it was argued that the detention was unlawful in light of paragraph 55.9.3.1 of the Enforcement Instructions and Guidance policy document (EIG), because the Kent age assessment was not Merton compliant; because Home Office did not have a full copy of it and the summary document did not have sufficient reasons; because the alternative basis, “credible and clear documentary evidence”, did not include a judicial determination of age; and because a judicial determination that was reached in the absence of the full age assessment would be flawed in any case (it was, however, accepted that in the absence of new material following the FTT’s determination, the Home Office could rely on it).

The Court of Appeal noted that ‘Merton compliant’ was a short hand for compliance with Merton and subsequent case law, the purpose of referring to a Merton-compliant age assessment being to distinguish those assessments on which the Home Office may rely, and those on which it should not. However given the fact that case law develops, Merton-compliance should be judged by the standard at the time the age assessment was conducted – in other words, an assessment that was Merton compliant at the time does not become non-compliant for the purposes of the policy as a result of later judicial determinations.

The Court of Appeal then considered the claimant’s arguments that the Kent assessment was not compliant in light of that principle of historicity, and concluded that non-compliance was not established. In particular:

    1. At the time of the Kent assessment in February 2009, there was no requirement for two social workers (leaving undecided whether there was now such a requirement);
    2. Likewise, in February 2009 there was no requirement that an independent adult be present;

As regards the question of whether the Home Office could lawfully detain the claimant absent a copy of the full assessment, the Court of Appeal referred to its decision in VS – and then came to a similar conclusion that the summary document per se was not sufficient evidence of the local authority’s reasons. The distinguishing feature of ZS was, however, that since the Kent assessment there had been a judicial determination of the claimant’s age by the FTT judge. Burnett LJ noted that 55.9.3.1 of the EIG on detention, and the Assessing Age policy considering procedures where an asylum applicant claims to be a child, were to be read together (para 73). 55.3.9.1 provides for three bases for detention where there is an age dispute: credible and clear documentary evidence that they are 18 or over; a full Merton-compliant age assessment is available; or physical appearance/demeanour very strongly indicates that significantly over 18 and no other credible evidence exists to the contrary. For its part, Assessing Age at para 11 states that the Home Office will normally not depart from an immigration judge’s finding on age. In that light, a judicial determination that concludes that a person is over 18 is, for the purposes of 55.9.3.1. “credible and clear documentary evidence” to that effect. Therefore the Home Office was entitled to detain him on the basis of the FTT finding.

As a final point of interest, Burnett LJ observed that even though, in the alternative, the Home Office would not have been able to rely on the Kent summary assessment alone (for lack of reasons therein, as per VS), applying Lumba only nominal damages would be payable, because “had the Home Office officials engaged in a discussion with KCC to explore the position, as the Age Assessment policy contemplates, it is very likely that they would have been satisfied that it was”. That was not an argument that seems to have been made in VS (possibly because of the date and content of the Kent assessment at issue) – but in the light of ZS, it would seem likely to be one that will be run in other age assessment detention cases. A challenge on the basis of an absence of reasons from the local authority alone may be a hollow victory, in cases where a claimant cannot go further and show that the underlying assessment was not, in fact, Merton compliant.

 

 

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: