Human rights – Asylum – Children’s welfare – Failed asylum seekers

R (on the application of (1) Reetha Suppiah (2) Danahar Govindasamy (a child by his litigation friend Reetha Suppiah) (3) Emmanuel Govindasamy (a child by his litigation friend Reetha Suppiah) (4) Sakinat Bello (5) Mornike Sulaiman (a child by her litigation friend Sakinat Bello)) (claimants) v Secretary of State for the Home Department (defendant) and Serco Group Plc (interested party) and (1) Liberty (2) Bedford Local Safeguarding Children Board (interveners): QBD (Admin) (Mr Justice Wyn Williams): 11 January 2011

The claimant failed asylum seekers applied for judicial review of the defendant secretary of state’s decision to detain them pending removal.

The first claimant (S), and her children the second and third claimants, had exhausted their appeal rights against the refusal of their claims for asylum. On 7 February 2010 they were served with directions for their removal on 10 February and immediately removed from their home and taken into detention. S then made further representations as to why they should not be removed, and also applied for judicial review. In the face of that the UK Border Agency decided not to remove them as planned, but they remained in detention until 24 February. The fourth claimant (B), and her son the fifth claimant, had also exhausted their rights of appeal against their refused asylum claims. On 10 February 2010 she was served with directions for their removal on 13 February and they were immediately removed from their home and detained. On 12 February an injunction against their removal was granted, and also she was not fit to travel, so they were not removed as planned, but they remained detained until 22 February. The claimants asserted that their detention was unlawful and breached their rights under articles 3, 5 and 8 of the European Convention on Human Rights 1950.

Held: (1) The secretary of state’s policy relating to detaining families with children was lawful, and it conformed to the UK’s obligations under the UN Convention on the Rights of the Child. The claimants could not establish that the policy could not work lawfully in practice or that there was such a risk of unlawful decision-making when it was applied that it should be declared unlawful on that ground. However, there was significant evidence that the agency had failed to apply it with the rigour that it deserved. The proper interpretation of it was that the detention of families with children should be authorised only in exceptional circumstances. That meant that the suggestion in the policy that families with children could be detained on the same basis as any other person liable to removal should be regarded, quite properly, as redundant (see paragraphs 25, 209-222, 224 of judgment).

(2) On the balance of probabilities, no meaningful or proper offer of assisted voluntary return was ever made to either B or S before their detention. There was no evidence that the relevant decision-makers in the agency had considered their duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of the children, or had treated it as a primary consideration; or if they did consider it, what their reasoning process was in relation to it, R (on the application of TS) v Secretary of State for the Home Department [2010] EWHC 2614 (Admin) applied. That failure to have regard to the duty under section 55 made the detention of all the claimants unlawful. Their detention was neither inevitable nor probable if the agency had complied with its statutory duty. Moreover, the claimants’ detention was unlawful for reasons which were wider in scope than the failure under section 55. In relation to S, the risk that she would abscond was very low; no account was taken of the fact that she had never attempted to evade the authorities and had complied with the reporting requirements placed upon her. The detention of children should be a last resort, yet it was very hard to see what justification there could have been for detaining S and her children. It seemed that their detention was imposed by default; if all appropriate factors had been taken into account, it would not have been authorised. Even if that was wrong, their detention became unlawful by 16 February at the latest. At that point removal was going to take another three to four weeks, and the third claimant had become ill. The family welfare forms for the claimants had not been correctly completed; that represented a significant breach of policy. The policy required that detention be maintained for the shortest possible period and the section 55 duty had to be considered at each detention review. Those aspects of the policy were ignored when detention was authorised for S after 16 February. In B’s case, there was some basis for concern that she would abscond, but that was not such a potent factor as to justify detaining her and her child. Even if it was wrong that their detention was unlawful from its inception, by 15 February, when there was a detention review, it was unlawful. Their detention was in direct conflict with the secretary of state’s published policy. The claimants’ article 8 rights were breached by the fact of their unlawful detention, not by virtue of their treatment at the detention centre. Further, their detention was arbitrary within article 5 for the same reasons that it was unlawful. The minimum level of severity necessary for the claimants’ article 3 rights to be breached was not met (paragraphs 37, 40, 52, 99, 161-164, 166-169, 171, 175, 177, 186-188, 195-196, 200-202, 206, 208).

Application granted.

Rabinder Singh QC, Nick Armstrong, Adam Sandell (instructed by Public Interest Lawyers) for the claimants; Jonathan Swift QC, Charles Bourne, Lisa Busch (instructed by Treasury Solicitor) for the defendant; David Mitchell (instructed by DLA Piper UK) for the interested party; Laura Dubinsky (instructed by in-house solicitors) for the first intervener; Jane Oldham (instructed by in-house solicitors) for the second intervener.