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Court of Appeal rules Home Office acted unlawfully by detaining 16-year-old asylum seeker

Date of Publication: 
6 November 2015
Summary: 

New judgment sets clear guidelines and provides important clarification on detaining children whose age may be disputed

Court of Appeal rules Home Office acted unlawfully by detaining 16-year-old asylum seeker

06 November 2015
EIN

Garden Court Chambers and Coram Children's Legal Centre reported today that the Court of Appeal has ruled that the Home Office acted unlawfully by detaining a 16-year-old Iranian child seeking asylum.

According to a joint press release, today's judgment (Home Office v VS [2015] EWCA Civ 1142, available here) sets clear guidelines on limits of power to detain children and provides important clarification around the proper construction of the Home Office's policy on detaining children whose age may be disputed.

The case concerned a 16-year-old Iranian asylum seeker known as VS who was wrongly treated as an adult by the Home Office and detained for 21 days with the view to removing him from the UK to Italy.

The joint press release notes that VS's age was disputed, as a local authority assessed him to be 2 years older than his actual age and found him to be an adult, aged 18.

The Home Office accepted the local authority decision, however, Garden Court Chambers says VS repeatedly informed the Home Office that he was a child and produced documents to support his actual age.

In July 2014, a High Court Judge found VS had been unlawfully detained and the Home Office had acted unlawfully in breach of its own policy by treating VS as an adult. The Home Office appealed this judgment to the Court of Appeal.

Garden Court Chambers and Coram Children's Legal Centre notes that the Court of Appeal today dismissed the Home Office's appeal and held that:

(1) Where a refugee child arrives in the UK, the Home Office has a duty to make a referral for the child to the relevant children's services department as soon as practicable. The Home Office is not entitled to detain the child for the sole purpose of questioning him over the basis of his/her asylum claim;

(2) Where there is a dispute over the child's date of birth and there is a local authority age assessment, the Home Office is required to consider the assessment properly to satisfy itself that the conclusion is correct;

(3) The Home Office is required to obtain the reasons on which the conclusion (of age) was based;

(4) The Home Office is required to make reasonable inquiries in order to arrive at an informed decision on the issue of the child's age.

Garden Court Chambers and Coram Children's Legal Centre says a number of similar claims on behalf of detained children are due to be considered by the courts in light of today's judgment.

Jessica Whitehead of Coram Children’s Legal Centre, VS’s solicitors, said: "I welcome the Court of Appeal’s judgment in favour of VS, which helps to clarify the Home Office’s obligations towards age disputed asylum seeking children. As a result, 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."