NXT: The Immigration Detention of Children

Wednesday 11 May 2011

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1. The case involved a foreign national prisoner who had made an illegal entry to the United Kingdom and had remained here without leave for many years. Whilst here she had committed a number of crimes including the supply of Class A drugs. She had also worked without permission and used deception to avoid immigration control on a number of different occasions. Therefore on a factual basis her case can be distinguished from foreign nationals who are apprehended on entry and imprisoned for an offence relating to their attempt to enter the United Kingdom or a person who has lived here for a number of years, sometimes lawfully, prior to committing a relatively a minor crime.

2. The case can also be distinguished on the basis that there were clear concerns child protection concerns about returning NXT’s children to her care. These were reasonably based on the evidence which suggested that she (and two of her children’s fathers) had been involved with Class A drugs and that she had neglected her children in the past. In addition, her three children were in different places; in one case with relatives and in the others in private foster placements with two different friends of the mother’s. Therefore the findings in relation to Section 55 are not applicable to the whole range of parents who may be detained without their children.

3. On a more positive note Mr. Justice Blair held that the November 2009 guidance entitled Every Child Matters: Change for Children properly reflected the Secretary of State’s statutory duty under Section 55 of the Borders, Citizenship and Immigration Act 2009. This is likely to be useful where it is being argued that the UK Border Agency’s actions did not accord with this duty. However, at times it may be necessary to argue that the guidance was not fully comprehensive as there a number of issues which are not dealt with in this guidance.

4. The judgment also accepts that when considering detention and deportation regard must be had to Section 55 and that a child’s best interests must be the first consideration in the decision making process.

5. Following the decision in WL (Congo) v Secretary of State for the Home Department [2011] UKSC 12 Mr. Justice Blair also confirmed that the breach of a public law duty on the part of the person authorising detention is capable of rendering that detention unlawful. Such a breach could occur when a decision maker did not follow a published policy. Again this is a useful confirmation of the Secretary of State’s duty to act in accordance with her various policies relating to children, families and detention.

6. Another positive aspect of the case was that Mr. Justice Blair accepted that the starting point for his legal analysis was that the United Nations Convention on the Rights of the Child, which was the most relevant national and international obligation for the United Kingdom. In addition he found that following the case of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148 it the need to give primary consideration to the best interests of a child affected by immigration detention was a binding obligation in international law and that the spirit , if not the precise language, of Article 3 had been translated into domestic law with the coming into force of Section 55 of the Borders, Citizenship and Immigration Act 2009.

7. Another positive aspects was that he found that Article 3 and Section 55 applied in case of automatic deportation in the same way as in any other case of removal or deportation, despite the submissions to the contrary made on behalf of the Secretary of State. This is important as many foreign national prisoners will be subject to automatic deportation given the low threshold posed by the need to only have been sentenced to 12 months in prison to qualify for such a process of deportation.

8. The Secretary of State also tried to argue that Article 9 of the United Nations Convention on the Rights of the Child did not apply when a parent was subject to immigration detention as Article 9(4) only required information to be disclosed about their detention. Mr. Justice Blair did not accept this proposition and found that Article 9(4) was a limited provision and did not address the wider issue of ensuring that a child was not separated from a parent unless such separation was in accordance with the law and was a decision which was subject to some form of judicial review or appeal.

9. The Claimants and the Children’s Commissioner for England argued that the Secretary of State had failed to properly apply Section 55 of the Borders, Citizenship and Immigration Act 2009 correctly and that this rendered the mother’s detention unlawful . Mr. Justice Blair did not find on the particular fact of this case that her detention was unlawful for this reason. He based his finding on the fact that “concerns about the first claimant’s past care of the children and ability to parent them in the future meant that no lawful decision to deport them as a family unit could take place without extensive further inquiry”. He also found that the mother’s history of deception, criminality and absconding was such that it was lawful to continue to detain here whilst these enquiries were pursued.

10. Mr. Justice Blair did go on to find that “more could and should have been done earlier, and that this is a valid criticism of the decision making process”. However, he then went on to find that “the evidence does not in my view show that the UKBA failed to treat the welfare of the children as a primary consideration”.

11. However, he held that the complexity of the case, which involved making enquiries with three separate children’s services departments and taking into account the risk that the mother would abscond and re-offend, justified a longer period of enquiry.

12. The illegality of the latter part of the mother’s detention was not determined in the judge’s view by any explicit failure to apply Section 55. Instead he relied on the Hardial Singh principle that detention became unlawful if it could no longer be shown that the individual was being detained in order to be deported

13. However, he decided that the mother’s detention did become unlawful on 28thMay 201 which was when “the Children’s Champion expressed the view that the first claimant should be released. That view reflected the fact that by then all appropriate enquiries had been made, and those showed that a parenting assessment would be required before the first claimant could be deported with her children, and that a parenting assessment required her release from detention”.

14. He reached this decision despite the fact there were still concerns about the mother absconding and re-offending and when she had not yet been detained for as long a period as many others with her history of criminality and deception. This will be useful for cases involving other parents with similar profiles. It will also be very useful for parents who have no history of absconding and whose only criminal act has been to enter the United Kingdom illegally.

15. Subsequently in relation to the appropriate order as to costs, the Secretary of State argued that the children, who were separately represented, should not be awarded costs as the mother’s counsel had made arguments, which they also relied upon. Mr Justice Blair accepted that it was necessary for the children to be separately represented as they were all living separately from the mother and potential issues of conflict arose due to the doubts about the mother’s parenting capabilities.

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