O, R (on the application of) v Secretary of State for the Home Department & Anor

MR JUSTICE OUSELEY: This application has had something of a checkered procedural history, with permission to amend the claim being granted by Sullivan J and again by me this morning. The challenge, as it is permitted by me to proceed, relates to a decision of 26th July 2005 and, to avoid undue circumscription of the argument, a decision of 15th September 2005, although I cannot see myself that it has any particular relevance. The claim can also proceed as a challenge to the lawfulness of a detention between 26th and 28th July 2005.

The reason why I grant permission is that I consider it to be arguable, although I would not go further than that, that in the case of a minor, or an asserted minor, where the finding that he is or is not a minor is central to whether he is detained or not, the Secretary of State must reach a decision which contains legally adequate reasoning as to why the individual is not a minor, dealing with the material provided by the claimant: in this case an age report from Dr Michie.

I emphasise two aspects. The reason for detention, if taken as simply being that the Secretary of State had concluded that the claimant was an adult, is perfectly clear; that is what the Secretary of State thought. It is also perfectly clear that it is at least arguable that the reasons for coming to that view are inadequate because he fails to deal with the gravamen of Dr Michie's report. The question is whether that layer of reasoning is required in a case where age is the crucial point. The second matter is that it is arguable, if that decision is flawed in public law terms by a legally inadequate reasoning on its face, that that legally inadequate reasoning cannot be made good even by contemporaneous documentation showing what the reasons actually were. This, I emphasise, appears to have been not fully considered in cases dealing with age reasons in this context but there is a difference between the admissibility of reasons given outside a decision letter required by statute to contain reasons and the weight to be given to reasons not in a decision letter but which are not by statute required to be in a decision letter. So there is an issue which arises as to the relevance or weight to be given to the note by Peterborough City Council relied on by the Secretary of State, dated 26th July 2005.

The third aspect is the question of whether, if there is an inadequately reasoned decision, even taking all those matters into account, that can mean of itself that the decision to detain was unlawful. This is particularly pertinent to the examination of what reasons are actually necessary and in the light of the conclusion that I have come to that no legal challenge can be raised to the decisions of 7th December 2005 and 16th June 2006, which unarguably show that the Secretary of State has a proper basis upon which he concluded that the claimant was at the relevant time an adult and therefore lawfully detained.

Upon that basis I grant permission. I refuse permission to challenge the lawfulness of detention in the period from 15th July, which is Ms Ahluwalia's starting point, until 26th July or the end of 28th. I do so because, for that to be arguable, it would have to be shown that it was arguable that, upon receipt of Dr Michie's age report, the Secretary of State was obliged to accept it, notwithstanding the contrary earlier material he had. That, with all respect to Dr Michie's qualifications, is simply untenable. The Secretary of State was obliged to consider his position in the light of Dr Michie's report, which he did with the benefit of Peterborough City Council Social Services. There is nothing in the claim to suggest that the Secretary of State was unduly slow in the consideration which he gave to that material.

I also refuse leave to challenge the decision of 7th December 2005. It is nothing to the point that that postdates the decision of 26th July 2005. That is irrelevant to whether it itself is flawed. It has been suggested that the decision is flawed because it relies upon interviews in relation to age carried out by the Peterborough City Council Social Services at which no appropriate adult was present. There is no policy requirement applicable to the City Council for that to happen and, in any event, the social services are well able to deal with someone who is 16 or 17, if such was the claimant's true age.

So far as the screening, post-SEF interview, carried out by the immigration officer, there was no breach of any policy requirement there because the view at those times was that the claimant was, or it had not shown that he was not, a adult. The decision of 7th December is otherwise legally satisfactory. The reference to the subsequently disputed account of the conversation between Dr Michie and Ms O'Connor from Peterborough City Council cannot flaw it because the dispute was not then known. So far as the 16th June 2006 letter is concerned, there is no arguable error of law there either and there the Secretary of State wisely discounted the impact of what Dr Michie was said to have told Ms O'Connor.

So, for those limited reasons, permission is granted.

I should just add this: Ms Windle suggested that the appropriate course would be for this to proceed by way of a damages claim, if the concern was unlawful detention. That is often the appropriate answer but the issues which underlie the lawfulness or unlawfulness are ideally suited for resolution by the Administrative Court and not a damages action.

MS AHLUWALIA: Your Lordship, just in relation to costs: obviously, the matter has been put over. In terms of the Legal Services Commission, I believe our obligation is to ask for a detailed assessment.

MR JUSTICE OUSELEY: Yes, you may have a detailed assessment of costs; the cost otherwise would be in the case.

It will be necessary, I think, for whoever hears it to have a transcript of what I said, so I will direct that one be produced. It does not really matter whether I say at public expense. If it does, it comes out of our budget. No, it is going to come out of the Home Office's budget. You will have to pay.

I am sure whoever hears it will appreciate a proper bundle.

MS AHLUWALIA: I can do that, your Lordship.