10:33, March 09 194 0 theguardian.com

2017-03-09 10:33:05
Child asylum seekers may have been illegally detained, rules court

The government could be found to have illegally detained many child asylum seekers after a landmark ruling in the court of appeal said immigration officers could not simply disbelieve the stated age of refugees.

The Home Office on Thursday lost its challenge against a ruling that an unaccompanied asylum seeker was entitled to damages after his claim to be “a child” under 18 was not believed by an immigration officer.

The teenager from Sudan, who arrived in the UK in the back of a lorry, was deprived of his liberty because the officer said he “reasonably believed” he was over 18 and not a child exempt from detention.

A judge at the high court ruled last year that the policy of relying on the “reasonable belief” of immigration officers was legally flawed and declared that age assessments in unaccompanied minor cases must be determined as “an issue of objective fact”.

In a ruling with wide ramifications, Sir Stephen Silber declared on Thursday that the claimant – previously referred to as AA, but now named as Abdul-Muttalab Ali – was entitled to damages for the whole of his detention period.

The appeal court judges unanimously confirmed the previous judgment by the high court, which ruled last June that someone’s age is a matter of “objective fact” and cannot be based on physical appearance or demeanour.

Announcing the court’s decision on Thursday, Lord Justice Davis said the case “has a wider importance for other cases”. He added: “If the result which I reach in this case is unwelcome to the present government then its remedy is to amend the statutory provisions.”

Home Office lawyers had described the case as being “profoundly troubling for the efficient running of a fair immigration system”. The Refugee Council said the high court judgment sent out a “clear message to the Home Office that its current policy is both unlawful and indefensible”.

The Refugee Council works with many unaccompanied child asylum seekers and has helped to get children detained as adults released. Between October 2014 and December 2015 they supported 25 young people who were locked up – 13 were assessed and accepted as children, seven were released into the care of local authorities but absconded before they could be assessed, two were assessed and declared to be adults, one was removed before the assessment was completed and two were being looked after as children pending the outcome of care proceedings.

“This sends an unequivocal message to the government: allowing officials to randomly guess children’s ages and then throw them behind bars breaks the law,” said Judith Dennis, policy manager at the charity. “The government must now recognise that when children’s lives are in the balance it’s simply not good enough for immigration officials to decide a child’s future on the basis of a cursory glance.”

Prior to being detained, Ali was in the process of being assessed by Wolverhampton City Council Social Services. Shortly after he was placed in immigration detention social workers completed a lawful age assessment and concluded that he was a child.

But the Home Office continued to detain him on the basis of a visual assessment that he was over 18. When high court proceedings were issued the Home Office released him into the care of social services. The question for the court was whether it was lawful to make these age assessments based on a “cursory glance”.

The court found unanimously that to detain an unaccompanied asylum-seeking child on this basis was unlawful.

Stuart Luke, of Bhatia Best, who brought the case, said: “The judgment has far-reaching implications for how the government must treat vulnerable unaccompanied children and the circumstances when a power can be exercised to detain these children.”

Dennis added: “As the government doesn’t produce statistics on the number of people who have been detained who claimed to be children, we worry that there are many more cases of children being wrongly detained as adults which are going unreported and unchallenged.”

Five years ago the government paid out £2m for unlawfully detaining 40 child asylum seekers as adults yet the practice has continued.