Court/Judicial body: High Court of Justice, Queen’s Bench Division, Administrative Court
Date: 11 January 2011 CRC
Provisions: Article 3: Best interests of the child Article 37: Torture and deprivation of liberty
Other international provisions: European Convention for the Protection of Human Rights (ECHR): Article 3 (prohibition of torture, and “inhuman or degrading treatment or punishment”) Article 5 (everyone has the right to liberty and security of person) Article 8 (right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”)
Domestic provisions: Borders, Citizenship and Immigration Act 2009 (2009 Act), section 55: immigration and asylum functions must be carried out having regard to the need to safeguard and promote the welfare of children who are in the UK. “Enforcement Instructions and Guidance” (Policy): the decision-maker should have regard to section 55 of the 2009 Act, consider all reasonable alternatives to detention, and resort to detention only as a measure of last resort and in exceptional circumstances.
Background: This case concerned judicial review proceedings brought on behalf of two families – 37-year-old Malaysian national Reetha Suppiah and her two boys, aged one and 11, and 25-year-old Nigerian national Sakinat Bello and her two-year-old daughter – who were all failed asylum seekers. The claimants were arrested and detained by the UK Border Agency (UKBA) in raids on their homes in 2010 and were taken to Yarl’s Wood, the UK’s main removal centre for women and children on the ground, pending arrangements for their removal from the UK. The Suppiah and Bello families were detained for 17 and 12 days respectively. The claimants argued that their detention was unlawful and violated their rights under Articles 3, 5 and 8 of the ECHR.
Issue and resolution: Immigration detention. The judge ruled that the two families were detained unlawfully from the time they were taken into custody until their release. Two out of the three ECHR claims were successful: Articles 5 and 8.
Court reasoning: The judge held that the decision-makers failed to have regard to their duty to safeguard and promote the welfare of the child claimants (as required by section 55 of the 2009 Act) in advance of their decision to detain them, and therefore their detention was unlawful. The authorisation of detention of the claimants was in direct conflict with the Policy, which demanded that the decision-maker should have regard to section 55 of the 2009 Act, consider all reasonable alternatives to detention and resort to detention only as a measure of last resort and in exceptional circumstances. With respect to the ECHR claims, the judge found a breach of Article 5 as the detention of the claimants was arbitrary, and a breach of Article 8 as the unlawful detention itself constituted an unacceptable infringement of their right to private life. The judge held that the treatment of the claimants did not reach the minimum level of severity necessary for a breach of Article 3. The judge held that the Policy on detaining families with children was not unlawful as its key elements taken together with the overarching obligation to resort to detention only in exceptional circumstances ensure that the Policy complies with section 55 of the 2009 Act, obligations under the CRC and the ECHR. The judge, however, acknowledged the evidence provided by the claimants and Liberty (an intervening NGO), stating that “no one can seriously dispute that detention is capable of causing significant and, in some instances, long lasting harm to children.”
Excerpt citing CRC and other relevant human rights 147. The United Kingdom is a signatory to the UNCRC. Article 3(1) provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 37 is in the following terms:- “States Parties shall ensure that: a)…. b) no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; c) every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interests not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; d) every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” 148. The UNCRC has not been incorporated into domestic law in the strict sense. However, in my judgment, the proper application of section 55 of the 2009 Act effectively demands that a decision-maker complies with articles 3 and 37 of the Convention. Further, Article 5 ECHR should be read in the light of Articles 3 and 37(b) of UNCRC. … 210. … I am still of the view that the Defendant’s policy conforms to this country’s obligations under UNCRC. That means that I accept that the policy is consistent with Article 3 of that Convention which provides that the best interests of the child shall be a primary consideration and Article 37 which provides that detention of a child shall be used only as a measure of last resort. … … 214. I am not persuaded that the absence of safeguards as identified by Mr. Singh QC renders the policy inoperable in practice. As I have found the Defendant’s policy contains a number of key elements. Upon its proper interpretation exceptional circumstances must exist before detention of families with children is justified. It is the key elements taken together with the overarching obligation to resort to detention only in exceptional circumstances which ensure that the policy complies with section 55 of the 2009 Act, obligations under UNCRC and the ECHR. The policy ensures that every decision-maker should know that the Defendant’s policy demands that detaining children should take place in exceptional circumstances only and is a measure of last resort; inevitably, therefore, the decision-maker will know that it is incumbent upon him to undergo a rigorous analysis of all relevant factors before authorising that measure of last resort.
Follow up: Penny Nicholls, Director for Children and Young People at The Children’s Society, said: “This case highlights once more that immigration detention of children should be ended immediately. It is disappointing that, given the vast body of evidence of the harm experienced by children in detention, we continue to see children detained. However, we are encouraged that the Government has committed to ending the detention of children in immigration removal centres, and are keen to work with them to ensure that cases like this become a thing of the past”. According to the UK Government, since this judgment was handed down there have been several improvements to Government policy on child detention. For example, the Home Office has improved their communication on voluntary return in family cases, and families are now given a minimum of 4 weeks to consider returning voluntarily or by ‘self check-in’ before any enforcement action is taken.
CRIN comments: CRIN believes this decision is partially consistent with the CRC. As noted by the judge, Article 37(b) provides that the detention of a child must be used only as a measure of last resort, which was reflected in the Policy but not properly considered by the decision-makers. CRIN, however, stresses that the best interests of the child principle in Article 3 should be made explicit in laws and policies and applied in all actions concerning children, and that immigration detention of children is not in the best interests of the child. Citation:  EWHC 2 (Admin) (11 January 2011). Link to Full Judgment:http://www.bailii.org/ew/cases/EWHC/Admin/2011/2.html This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. Related Article 37: Torture and deprivation of liberty Article 3: Best interests of the child Countries United Kingdom CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.