The father and daughter are represented by Stephanie Harrison QC and Shu Shin Luh of the Garden Court Public Law and Civil Liberties & Human Rights Teams. They are instructed by Janet Farrell of Bhatt Murphy Solicitors. Bail for Immigration Detainees (BID) provided evidence to support the judicial review proceedings.
The father (AJS) was separated from his three year old daughter (AJU) who was in care whilst he was unlawfully detained by the Home Office under immigration powers.
The local authority decided and the Family Court ordered that it was in her best interests and welfare to be reunited with him, but if AJS was not released within a certain limited timeframe, she would have to be placed for adoption.
Despite this, the Home Office in full knowledge of the local authority plans and the Court order made, maintained a decision to detain him under immigration powers, transferred him to a detention centre many miles away so that he could not see her at all, opposed his applications for release on bail, and even when bail was granted, delayed providing accommodation to him.
He was finally released after three months of unlawful immigration detention, only days away from his daughter being placed for adoption. The Home Office then provided a bail address which was still many miles away from his daughter and imposed a daily curfew on AJS which made the Court-ordered reunification plans impossible. AJS and AJU then issued judicial review proceedings.
In the Order approved by the High Court today, the Home Office accepted that AJS was unlawfully detained for the entirety of his detention in breach of the Home Office’s published policy relating to detention and Family Separation and agreed to pay the Claimants £50,000 in damages.
The key breaches of policy were:
- Breach of the policy precluding the detention of sole carers where the consequence is that the child will be taken into care
- Failure to co-operate with other public authorities
- Failure to make lawful, necessary and proportionate decisions about the separation of a family which take the best interests of the child properly into account
- Failure to refer to the Office of the Children’s Champion for advice
- Failure to properly review detention following a significant change in circumstances
- Failure to complete the mandatory central record (the Family Separation Form ICD 5025)
The effect of those failures was to prevent and/or significantly undermine the Court-approved Care Plan which had the objective of meeting the child’s best interests and safeguarding her welfare by reuniting her with her father and avoiding adoption.
The Home Office further admitted that the detention was in breach of section 55 of the Borders, Citizenship and Immigration Act 2009 (which requires the Home Office to have regard to the need to safeguard and promote the welfare of children in the UK when carrying out their functions) and in breach of both their Article 8 ECHR ‘family life’ rights, including by their failure to enable contact between the child and her father to take place.
His Honour Judge Blair QC was particularly concerned about the failure to refer to the Office of the Children’s Champion and asked whether individuals could make a referral themselves where the Home Office fails to do so. He also commented that the reunion of this father and daughter following his release was “heart-warming” given all that they had been through.
This case follows two highly critical High Court judgments almost a decade ago1, concerning similar failures in detention decision making, leading to the unlawful detention of two single mothers for many months. Changes to the Home Office’s policy designed to provide better protection to children in this context were disregarded in this case and many others.
Stephanie Harrison QC of Garden Court Chambers, counsel for the claimants said:
“The Windrush debacle is the tip of the iceberg when it comes to the Home Office’s unlawful and abusive use of the draconian power of administrative immigration detention.
The Home Office’s total disregard for this child’s best interests and welfare in detaining and seeking unlawfully to remove her father from the UK is obviously unacceptable. That it was also done in the face of an order from the Family Court requiring, in the child’s best interests, that she be reunited with her father, is a scandal and a flagrant abuse of power.
The systemic failures recently highlighted by the Joint Human Rights Committee in Parliament in detaining British citizens and long standing residents is not limited to the Windrush generation. It is widespread and endemic within all aspects of Home Office practice relating to detention. The total disregard for the individual, which is symptomatic of the Government’s hostile environment policy, as this case shows, extends, even to the most vulnerable in society: children separated from their parent and in care.”