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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

15 APR 2013

Durani v Secretary of State for Home Department [2013] EWHC 284 (Admin); (2013) PLLR 037

Immigration - Age assessment - Merton - Detention

The age assessment that had established the age of the Claimant prior to his detention had not been compliant with the principles set out in R (B) v Merton LBC [2003] EWHC 1689 (Admin). As such, the Claimant's subsequent detention had been unlawful.

19 February 2013

Administrative Court

Walker J

(1)        The Claimant had been held in detention between 25 May 2011 and 15 June 2011. The issue in dispute was whether that detention was lawful, and whether damages were due.

(2)        The basis of the claim was that an incorrect age assessment had been undertaken, this having determined the Claimant to be two years older than was later agreed. The Claimant alleged that the age assessment undertaken in 2009 had not been compliant with the general principles set out in R (B) v Merton LBC [2003] EWHC 1689 (Admin) (‘Merton'). It was further alleged that had the Claimant's correct age been appreciated he would not have been detained.

(3)        There were two grounds for challenge. The first was that the 2009 assessment was not Merton compliant; and the second was that those authorising detention in 2011 were not entitled to rely upon the 2009 assessment as meeting the requirements for a Merton compliant assessment. The Defendant accepted that if the two criteria were met, then the detention of the Claimant was unlawful.

(4)        HELD: The Court considered that it was relevant that the assessment stated that it was inconclusive and further work was required. The Court held that such an inconclusive assessment was not the sort that the Merton judgment had in mind and it was therefore not compliant with the relevant principles. Despite clear reasons needing to be given, no explanation had been recorded as to why the assessment had commented that the Claimant's physical appearance would suggest him to be older than 14.

(5)        There was nothing to indicate that the Claimant had been told what the decisive points against him were, even less that an opportunity had been given to him to provide an explanation.

(6)        There was therefore found to be a lack of evidence to demonstrate whether the decision maker had considered whether the assessment had been compliant with the Merton principles.

(7)        The detention of the Claimant was therefore held to be unlawful between 25 May 2011 and 15 June 2011. Damages were to be assessed if not agreed.

Claim succeeded

Key Paragraphs

[5] - Criteria met, claim succeeded.

[44] - Merton principles.

[81] - Inconclusive assessment.

[83] - Not Merton compliant.

[87] - Not told decisive points.

[90] - Failure to consider if Merton compliant.

[91] - Conclusion.

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