AA, R (on the application of) v Secretary of State for the Home Department [2013] UKSC 49 re Section 55 of the Borders, Citizenship and Immigration Act 2009

This is an appeal against unlawful detention in which the appellant’s position was that where the Secretary of State detained the appellant (a minor) in the mistaken but reasonable belief that he was aged over 18 the detention was unlawful on the proper construction of section 55, and that the Secretary of State’s reasonable belief that he was over 18 is no defence to his claim.

The Secretary of State relied for justification of the appellant’s detention on the statutory power of detention created by paragraph 16 but the appellant contended that the decision to detain him was unlawful because it was made in breach of section 55.

The Court held that the arrangements made by the Secretary of State under section 55 in her published policies: Every Child Matters, EIG 59.9.3.1 and Assessing Age are detailed and careful, and that the guidance complies with the Secretary of State’s obligation under section 55(1), applying its natural and ordinary meaning. And on the facts of this case there was no basis for finding that there was a failure by any official to follow that guidance.

It was held that there was no breach of section 55 and therefore the exercise of the detention power under paragraph 16 was not unlawful. The Court commented that the risk of an erroneous assessment can never be entirely eliminated but it can be minimised by a careful process and there are appropriate safeguards.

The Court disapproved the proposition that any detention under paragraph 16 of a child in the mistaken but reasonable belief that he was over 18 would ipso facto involve a breach of section 55.

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