The Supreme Court has unanimously allowed the Home Secretary’s appeal against the Court of Appeal’s decision, upholding the Home Secretary’s position that her policy allowing immigration officials, on initial encounter, to treat an asylum seeker as an adult on the basis that their appearance and demeanour very strongly suggests that they are significantly over 18 is lawful.
James Strachan QC and Deok Joo Rhee QC of 39 Essex Chambers appeared for the Home Secretary in her successful appeal.
The Supreme Court’s judgment, to be read with the decision in R(A) v Secretary of State for the Home Department handed down on the same day, addresses the important general issue of the ‘test’ to be applied by a court to ‘policy’ or ‘systemic’ challenges.
The Supreme Court rejected the Court of Appeal’s approach of assessing the lawfulness of the policy by reference to whether it created a real risk of more than a minimal number of children being detained and/or created a risk which could be avoided if the terms of the policy were better formulated. It ruled that the standard of judicial review of a policy issued by a public authority derived from the decision in Gillick v West Norfolk and Wisbech Area Health Authority  AC 112. The policy must not direct officials to act in a way which is contrary to their legal obligations. Guidance in a policy should not sanction, positively approve or encourage unlawful conduct.
The Supreme Court identified that it is in the nature of law that a person subject to a legal duty might misunderstand or breach it, but the remedy in such cases is to have access to the courts to compel that person to act in accordance with their duty. An obligation on Ministers (or anyone else) to issue policy guidance to eliminate uncertainty in relation to the application of a stipulated legal rule would be extremely far-reaching and difficult, if not impossible, to comply with. It would also conflict with the separation of powers as it would require Ministers to amplify and, to some extent, restate Parliament’s legislation. It would also inevitably involve the courts assessing whether Ministers had sufficiently done so, thereby requiring courts to intervene to an unprecedented degree in executive decision-making and legislative choices.
The Supreme Court concluded that the Home Secretary’s policy approach as to the way in which immigration officers should distinguish adults and children as best as they can using the available evidence was lawful and contained safeguards. The Court of Appeal’s solution of directing immigration officers to treat a person as a child only if they believe them to be aged less than 23 or 25 might itself risk being unlawful on the basis of Gillick, as it appears to contradict the rule laid down by Parliament regarding the treatment of adults. This approach would produce a large number of erroneous identifications of adults as children, thereby undermining the purpose of the statute. This was not changed by the fact that it is unlawful to detain someone as an adult (even if they are reasonably believed to be so) when they are a child.
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