R (HXT) v SSHD [2013] EWHC 1962 (QB)

CONTEXT: The Secretary of State for the Home department (SSHD) has the power to detain those subject to deportation, but has a policy of not detaining those aged under 18. She also has a policy that, when determining whether a person is under 18, she will generally rely on a Merton-compliant age assessment carried out by a local authority (LA). A number of recent cases have challenged the SSHD’s reliance on flawed LA age assessments.

FACTS: The claimant was assessed as an adult by his LA, and referred to UKBA. UKBA, relying on the LA’s age assessment, detained him pending deportation. The LA then reassessed the claimant’s age and found him to be a child. The claimant argued that his detention was unlawful as it was in breach of the SSHD’s policy on the detention of minors, and claimed damages for false imprisonment.

JUDGMENT: The Court held that the UKBA’s policy required it to apply its mind to the LA’s age assessment and form a reasonable view as to whether the age assessment was Merton-compliant. In this case UKBA had adduced no evidence as to whether it had done this, and the court held that UKBA was unable to prove on a balance of probabilities that it had even read, let alone scrutinised, the age assessment. The absence of such scrutiny went to the heart of UKBA’s policy on detention of minors, and thus vitiated the lawfulness of the detention. The Court also held that the age assessment had not been Merton-compliant. The failure to scrutinise the age assessment therefore made a material difference to the decision to detain and the claimant was entitled to compensatory rather than just nominal damages.

COMMENT: It is extremely difficult to know whether and if so how this will work in practice. UKBA does not have the expertise to perform the role the court envisages for it. The issue as to whether or not a LA age assessment was Merton compliant may, and very often does, turn on disputed facts. It is unclear what UKBA is to do with such factual disputes. In our experience UKBA has neither the will nor the skill to undertake this role of checking LA age assessments.