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.