AN & FA (Children), R (On the Application Of) v Secretary of State for the Home Department [2012] EWCA Civ 1636

[2012] EWCA Civ 1636

Case No C4/2011/2722 & 2723

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEENS BENCH DIVISION ADMINISTRATIVE COURT

MR JUSTICE MITTING

CO384310

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11/12/2012

Before

LORD JUSTICE MAURICE KAY

LORD JUSTICE ELIAS

LADY JUSTICE BLACK

Between

THE QUEEN (ON THE APPLICATION OF AN (A CHILD) AND FA (A CHILD)Appellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr Michael Fordham QC and Ms Stephanie Harrison (instructed by Islington Law Centre) for Appellants

Ms Julie Anderson (instructed by Treasury Solicitors) for Respondents

Hearing Hearing dates : 26 th& 27 th June 2012

Judgment

[1]AN arrived in Dover in February 2009 when he was approximately 15 years old. He was found concealed with other young men in the back of a lorry at Dover Docks.

[2]FA arrived in March 2009 when he was 14 years old. He was found by the police walking on the hard shoulder of the M20.

[3]Both appellants are nationals of Afghanistan but neither had a passport or identification.

[4]This appeal from a decision of Mitting J on 27 July 2011 concerns the way in which the appellants’ cases were handled by the UK Border Agency in Dover immediately following their arrival. It is contended that the legal safeguards that should protect unaccompanied children who arrive in the United Kingdom in uncertain immigration circumstances were not observed.

[5]There are other children whose similar claims await the determination of the appellants’ claims.

The facts of AN’s case

[6]It was at 16.15 hours on 27 February 2009 that the Enforcement Unit first became aware of AN. The immigration officer considered that he had probably entered the United Kingdom illegally and the decision was taken to detain him. The form authorising his detention (IS91, see E30 of the bundle) records that his detention in the Enforcement Unit commenced at 16.50 hours although it appears from the booking in sheet (see E21) that he was first detained slightly earlier, at 16.40.

[7]The booking in sheet records that a telephone interpreter was used to obtain personal details from AN. Amongst other things, it also records a date of birth for him which made him a minor and records that he said he was fit and well. The Initial Identification Sheet (see E27), which records basic information about the subject such as name, date and country of birth, gender and date of arrival, is timed at 17.00.

[8]Mitting J says of the period that followed this that according to the UKBA, AN was then provided with a period of rest to recover from his journey as well as food and drink but that “AN describes the period in somewhat less flattering terms”. The UKBA evidence was accepted by Mitting J for the purposes of the judicial review proceedings.

[9]At 20.42 an illegal entry interview (now apparently called an initial entry interview) commenced, conducted by an immigration officer with training in interviewing children.

[10]The interview lasted 18 minutes. A telephone interpreter was used. There was no responsible adult present. The interview was not read back to AN. His evidence for the judicial review proceedings was that he remembered little about the interview(s) he had and that he was feeling very ill, including suffering from a headache. The interview note says that he indicated that he was fit and well and happy to be interviewed. When asked why he should not be returned to Afghanistan, he said “I have problems there.” Asked what they were, he said:

“My father old. I have no brothers. I have nothing to do.”

He was asked why he had come to the UK and said “I want work and get a passport.” He was asked whether there were any other reasons for him coming to the UK and said “No other reason.” When he was asked later on whether his family was in Afghanistan, he said “No. In Pakistan. My parents and older brother who is disabled.” He said that they had lived there for 17 or 18 years and that he had travelled to Afghanistan from Pakistan but had not been living in Afghanistan long. He gave an account of a journey through a number of countries before arriving here.

[11]I will gratefully adopt Mitting J’s account of what happened for the rest of that night as the documents are not entirely consistent. AN was fingerprinted without a responsible adult present. Between 22.00 hours and 22.15, a telephone referral was made to the out of hours team at Kent Social Services. At 22.15, forms were created authorising AN’s temporary admission and his release from UKBA detention and at 23.35 he was collected by Kent Social Services from the Dover holding room. Up to this point, he had made no claim for asylum.

[12]On 5 March 2009, AN told his Kent social worker that he wanted to claim asylum. He attended an asylum screening interview on 11 March 2009. He said that his father had died about 3 ½ years ago and his older brother about 1 year ago but his mother was living in Pakistan. He gave as his reason for coming to the UK:

“I was in fear of the enemies as my father and my brother were killed”

. He said they were his father’s enemies and he did not know them, nor did he know why his father had these enemies. He said his father and brother were both shot. He said his maternal uncle arranged his journey with an agent.

[13]The substantive asylum interview took place on 8 April 2009. AN’s case in support of his asylum application was that his father and brother had been killed by enemies and he was in danger from them as well. He was questioned about his illegal entry interview on 27 February 2009 and inconsistencies between his account then and his account later were put to him, including that he had then said that he had a father and a brother who were living. He said his brain was not functioning and he was tired and did not know what he was saying.

[14]On 9 September 2009, AN’s claim for asylum was refused. AN had no appeal against this decision. The reasons included the inconsistencies between his account in his initial interview and his later accounts including a failure to mention in the initial interview the killing of his father and brother. He was granted discretionary leave to remain until 1 July 2010. In December 2009, the judicial review proceedings challenging the decision to refuse asylum which eventually found their way to Mitting J were begun.

The facts of FA’s case

[15]It was 11.50 on 18 March 2009 when FA was arrested by the police on the M20. He was referred to the Dover Enforcement Unit at 14.30. The form authorising his detention as an illegal entrant (IS91, E222) records that his detention by the UK Border Agency commenced at Ashford Police Station at 14.45. The booking in sheet (E225) records his time of arrival at the Dover Enforcement Unit as 16.55. He was booked in with the assistance of an interpreter over the telephone. The form appears to show that the process ended at 17.30. As with AN, the date of birth recorded on the booking in sheet shows FA to be a minor. He is said to be fit and well.

[16]Like AN, FA was given a period of rest and provided with food and drink; Mitting J recorded that there was again “a minor and unresolvable dispute of fact about the precise circumstances” of that.

[17]Mitting J recorded that FA’s illegal entry interview commenced at 19.30, again carried out by an immigration officer trained in interviewing children, with the assistance of a telephone interpreter. It apparently ended at 20.15.

[18]FA agreed that he was fit and well. Hardly any time into the interview, he was asked why he came to the UK and said “I came to be safe and claim asylum”. He was asked “Why asylum?” and replied “Because of my father’s enemies.” He was asked further questions about this and said that his father’s enemies were his uncle’s cousin and that the enemies had “killed my brother and attacked our house so my father sent me out of the country”. He did not know why the enmity began or when. His brother had been killed about 1 ½ years ago and he had left Afghanistan a year ago to come to the UK. He described his journey here. He said that he would be killed by enemies if he returned to Afghanistan.

[19]FA was fingerprinted in the presence of a G4S escort. He had been referred to social services at 20.00 and Mitting J recorded that at 22.00 a social worker attended and spoke to him, followed by a taxi which came to collect him at 22.15.

[20]FA’s substantive asylum interview took place on 22 April 2009. He provided details of his asylum claim. He had already explained that a mistake had arisen because he had been interviewed on arrival in Farsi, which was not his normal language, and the wrong name had been recorded for him.

[21]On 16 September 2009, asylum was refused but discretionary leave was granted until 30 June 2010.

[22]FA appealed against the refusal of asylum. There was a dispute between the parties as to whether the Secretary of State should be allowed to file the records of the initial interview as part of the evidence in the appeal. The tribunal directed that the material could be included in the evidence and its admissibility would be decided by the immigration judge.

[23]In a decision promulgated on 9 August 2010, the immigration judge refused the appeal. He recorded FA’s objection to the fact that he had been interviewed on arrival but said that he had disregarded the initial interview in coming to his decision and observed that there was no indication that the Secretary of State had relied on it either.

[24]Reconsideration of the immigration judge’s decision was ordered because the claimant had not been represented at the hearing as his representatives had gone into administration. The rehearing had not taken place by the time of the hearing before Mitting J, and it appears that it will not do so until these proceedings are concluded and it is known whether reliance can be placed upon the initial interview.

Internal procedure of UKBA and arrangements between UKBA and Kent social services

[25]Evidence was available in the judicial review proceedings from Ms Pearson on behalf of the UKBA about the purpose of an initial interview of the type carried out with both appellants. She said it was:

“to establish as soon as possible, the minor’s immigration status, the information needed to bring the minor into the care system, to identify if they have been trafficked and to establish if they wish to claim asylum. A welfare interview will then also be conducted to check if the child is fit to be interviewed and to see if they are tired, hungry, ill etc.”

She said that: “[w]here a minor wishes to claim asylum, a screening interview will take place (which does not examine the substance of the asylum claim) but seeks to register the asylum claim by gathering basic information about the child’s biographical data, travel history, method of entry into the UK and documentation.” [sic] This would be followed later by a substantive asylum interview.

[26]Ms Pearson’s evidence was that prior to 3 November 2009, not all of the relevant practice in relation to the first contact with unaccompanied minors was set down in a written policy but in fact, in her view, the procedure adopted in the appellants’ cases followed the policy set out in section 6 of the post-November 2009 Home Office guidance on “Processing an Asylum Application from a Child” (see below).

[27]As to referral to social services, she said that once identity was established, a referral was made but that during out of hours periods, there could be delays between referral and the child leaving UKBA care.

[28]The evidence of social services was contained in two statements from Ms Goodman who was Head of Asylum Services for Kent County Council at the relevant time. Ms Goodman’s statements were included in the appeal bundle and the court was asked by counsel for the appellants to read the first of them. This generated a dispute which diverted attention from the main issues in the case as the Secretary of State does not accept that Ms Goodman’s recollection is correct or that reliance should be placed on it. I will deal with that subsidiary issue, and the allied question of whether the appeal should have been adjourned, in an appendix to this judgment. In short, we declined to adjourn the appeal and went on to consider all the material available including not only that emanating from Ms Goodman but also Ms Pearson’s evidence and the email from the UKBA that arrived during the hearing.

[29]Ms Goodman was under the impression that children were referred to the local authority as soon as they had been identified as unaccompanied and the basic details of their name, age and nationality recorded and she knew nothing about the initial interviews that were conducted or that children were being detained for any length of time. She said:

“I simply do not understand why children are not immediately referred to Kent Social Services and arrangements made to return to UKBA for a further interview at a later date. If there are immediate and urgent medical needs they must refer the child to the emergency health services. In all other cases, once UKBA staff are aware that they have discovered an unaccompanied foreign national child, who is by definition a child in need, they should immediately refer the child to the appropriate authority.”

[30]In her view, it was the responsibility of social services to carry out welfare interviews/assessments with children and as far as she was aware it was never a routine part of referrals for UKBA to address these issues, neither did they have the expertise to do so. Ms Goodman emphasised the trauma that all unaccompanied children have undergone and the importance of their having a recovery period before having to attend any interview about matters of substance. She said that rest and recovery from the journey “cannot be achieved in a matter of hours”.

[31]She explained the arrangements that were in place to achieve the prompt involvement of the local authority. There was a social services Asylum Duty Team in Dover which was predominantly concerned with unaccompanied children arriving at the port. The core hours of the team were from 09.00 to 17.00. If the team was contacted during normal working hours, they would arrange for a social worker or other member of the staff to collect the young person from the port; the contractual arrangement between social services and UKBA was that the social worker would arrive at the port within 20 minutes of the referral. Ms Goodman conceded that this was not always possible but they did their best to attend as soon as they could. If the referral was made outside working hours, the Out of Hours team would either arrange for a social worker to attend or make arrangements for the child to be transported to the relevant care placement.

[32]It is clear from Ms Goodman’s statements that social services are used to receiving children who are ill on arrival and that they are taken to a doctor. Legal representation is also sought for children, ideally before the child’s screening interview but this depends on resources.

[33]Information provided by Dover UKBA by email during the hearing contrasted markedly in some respects with what Ms Goodman had said. It was to the effect that UKBA refer matters to social services at the earliest opportunity but that social services need more information than is obtained at the booking in stage; they need to know the reasons for a person’s arrival in the UK and this requires a private further interview. Furthermore, Dover UKBA said that social services:

“will not accept a new person into their care with a pre-known condition i.e. scabies/claims to be diabetic etc until they have seen a doctor and been prescribed medication if appropriate. This is because it can sometimes take a young person up to 48 hours to see a doctor once in care. Young people going into foster care do so directly from UKBA, usually a cab is arranged by KSS and they are taken straight there, hence the need for medical issues to be addressed early.”

[34]In answer to the question “Why do UKBA not refer to KSS as soon as someone is booked in?”, Dover UKBA referred back to their explanation as to why the booking in interview did not provide all the information required by social services and added that the average waiting time for a responsible adult from social services is “currently in excess of 3 hours”. The law General provisions

The law

[35]Under paragraph 2 of schedule 2 to the Immigration Act 1971, an immigration officer is entitled to examine a person arriving in the United Kingdom for the purpose of determining his immigration position including whether he is a British citizen or has leave to enter the United Kingdom or may enter without leave or should be given leave. By virtue of paragraph 16(1) of schedule 2, a person who may be required to submit to such an examination may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter. If there are reasonable grounds for suspecting that he is a person in respect of whom removal directions may be given, he may be detained under the authority of an immigration officer pending a decision whether or not to give such directions and pending his removal in pursuance of such directions (paragraph 16(2)). One circumstance in which removal directions may be given is where the person has been refused leave to enter (paragraph 8, ibid).

[36]Paragraph 18 of schedule 2 provides that where a person is detained under paragraph 16, an immigration officer may take all such steps as may be reasonably necessary for photographing, measuring or otherwise identifying him, including taking fingerprints.

[37]Paragraph 21 of schedule 2 provides that a person liable to be detained under paragraph 16(1) or (2) may be temporarily admitted to the United Kingdom without being detained or may be released from detention. Particular immigration considerations in relation to children as in force at the time of the arrival of the appellants

[38]The immigration system contains particular safeguards for children. a). EU provisions

[39]Council Directive 2003/9/EC of 27 January 2003 lays down minimum standards for the reception of asylum seekers (“the Reception Directive”). Article 18 provides that the best interests of the child shall be “a primary consideration” for Member States when implementing the provisions of the Directive that involve minors. Article 19 is concerned with unaccompanied minors and provides that Member States “shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation”. It does not stipulate that there must be representation for any particular stage of consideration of the minor’s situation or any particular process but Council Directive 2005/85/EC adds to it (see below). Article 19.2 provides that “[u]naccompanied minors who make an application for asylum shall, from the moment they are admitted to the territory to the moment they are obliged to leave the host Member State in which the application for asylum was made or is being examined, be placed” with relatives or foster carers or in accommodation with special provision for minors or otherwise suitable for them. Article 19.3 places a duty on Member States to endeavour to trace members of the minor’s family as soon as possible.

[40]Council Directive 2005/85/EC of 1 December 2005 lays down minimum standards for procedures in Member States for granting and withdrawing refugee status. Article 17 is concerned with guarantees for unaccompanied minors. Article 17.1(a) requires that Member States shall “as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor with respect to the examination of the application” for asylum. The representative can be the representative referred to in Article 19 of the Reception Directive. Article 17.1(b) provides that Member States shall “ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself/herself for the personal interview. Member States shall allow the representative to be present at the interview and to ask questions or make comments, within the framework set by the person who conducts the interview.” b). UK Border Agency Code of Practice for Keeping Children Safe from Harm

[41]When the appellants arrived here, section 21 of the UK Borders Act 2007 was in force, requiring the Secretary of State to issue a Code of Practice designed to ensure that in exercising its functions the Border Agency took “appropriate steps to ensure that while children are in the United Kingdom they are safe from harm” (section 21(1)). The Agency was required to have regard to the Code in the exercise of its functions (section 21(2)).

[42]The Code of Practice issued was entitled “UK Border Agency Code of Practice for Keeping Children Safe from Harm” ( “the Code” ). Paragraph 1.12 of the Code said that the Code “does not create any new or overriding duty which will interfere with the UK Border Agency’s primary function; namely to uphold the integrity of the immigration control system, and in doing so, to apply the immigration legislation, the Immigration Rules and the relevant policies of the Secretary of State for the Home Department”.

[43]Amongst the principles set out in the Code was the principle that “[t]he best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions about his or her future” (paragraph 1.6). This is, of course, in similar terms to those used in the Reception Directive (see above). The Code also said (paragraph 1.7) that the Border Agency “will seek to ensure” that children are treated in a way that safeguards them and promotes their welfare, “are seen first, foremost and fully as children rather than simply as migrants subject to immigration control” and (paragraph 1.9) that “[c]onsistent with its main function, the UK Border Agency will take positive steps to keep children safe from harm by incorporating the following key principles into its work”, the key principles including ensuring that immigration procedures and situations are responsive to the needs of children, identifying children who may be at risk of harm when they come into contact with the immigration system and referring such children to the appropriate agency or agencies and working together effectively with that agency or agencies.

[44]The following sections of the code provide guidance on issues that may arise in relation to children in the immigration system. They provide, for instance, that a child who has no suitable carer is to be referred to the local authority (paragraph 2.4)

[45]Of particular importance for the present case, paragraphs 3.24 and 3.25 provide that “3.24 …..unaccompanied …. children must only ever be detained in the most exceptional circumstances and then only normally overnight if absolutely necessary, with appropriate care, whilst alternative arrangements for their care and safety are made. This exceptional measure is intended to deal with unexpected situations where it is necessary to detain unaccompanied children very briefly for their care and safety. In circumstances where responsible family and friends in the community cannot care for children, they should be placed in the care of the Local Authority as soon as practicable. The UK Border Agency must not detain an unaccompanied child for any other reason, including for the purpose of a pending removal. 3.25 If a child is detained because of the need to safeguard him or her, then the specific circumstances or reasons for the detention must be recorded, including the details of the efforts made to place him or her in non-immigration care facilities such as may be provided by a Local Authority before deciding to detain, and the responses received.”

[46]There is a section of the code setting out the requirement that the Border Agency must make “timely referrals of children and work positively with others”. Paragraph 5.1 sets out the circumstances in which a referral will be made to the relevant agency including when a child appears to have no adult to care for them and when a child is a potential victim of trafficking. Paragraph 5.3 provides that referrals to the local authority “must be made immediately by phone, followed up by fax using an officially agreed form”. Paragraph 5.8 provides that when a referral is made because it is believed that the child may have been trafficked, social services must be made fully aware of the risks specific to the case, such as the potential influence of the trafficker over the child and the risk that might trigger the child’s return to the trafficker. Paragraph 5.10 refers to the ‘Children in Need’ guidance about how to make referrals to other agencies which was issued to Border Agency staff in March 2007 and sets out that the Agency will work with local authorities to “identify and implement arrangements that are appropriate to that Local Authority”.

[47]Other material considerations in relation to applications made by children are set out in the guidance and include that it “should not be assumed that the child will have a full understanding of the immigration process or that the significance of the individual stages (such as initial screening, consideration of the application, availability of support and access to it, any actions that might follow a final decision) will be apparent to him or her” (paragraph 2.9). c). Immigration Rules: interviews

[48]The provisions of Article 17 of Council Directive 2005/85/EC are reflected in paragraphs 352 and 352ZA of our Immigration Rules. These provide: “352. Any child over the age of 12 who has claimed asylum in his own right shall be interviewed about the substance of his claim unless the child is unfit or unable to be interviewed. When an interview takes place it shall be conducted in the presence of a parent or guardian, representative or another adult independent of the Secretary of State who has responsibility for the child. The interviewer shall have specialist training in the interviewing of children and have particular regard to the possibility that a child will feel inhibited or alarmed. The child shall be allowed to express himself in his own way and at his own speed. If he appears tired or distressed, the interview will be suspended. The interviewer should then consider whether it would be appropriate for the interview to be resumed the same day or on another day. 352ZA The Secretary of State shall as soon as possible after an unaccompanied child makes an application for asylum take measures to ensure that a representative represents and/or assists the unaccompanied child with respect to the examination of the application and ensure that the representative is given the opportunity to inform the unaccompanied child about the meaning and possible consequences of the interview and, where appropriate, how to prepare himself for the interview. The representative shall have the right to be present at the interview and ask questions and make comments in the interview, within the framework set by the interviewer.” d). Fingerprinting children: section 141 of the Immigration and Asylum Act 1999

[49]Section 141 of the Immigration and Asylum Act 1999 regulates the taking of fingerprints from a child under 16. By section 141(3), they may not be taken except in the presence of a person of full age who is the child’s parent or guardian or “a person who for the time being takes responsibility for the child”. The “person who ….takes responsibility for the child” cannot be an officer of the Secretary of State or an authorised person (section 141(4)). There are various categories of “authorised person’ (section 141(5)). For present purposes, it suffices to note that they include the G4S escort who was present when FA was fingerprinted. Developments in immigration considerations in relation to children since the events with which this case is concerned

[50]I do not intend what follows to be a comprehensive account of the changes in law and guidance since early 2009. Some of the guidance in “Processing Asylum Applications from Children” has been the focus of attention during the appeal and is dealt with fully, but otherwise there is no need to do more than give an indication of the direction in which matters have gone in the three years since the appellants arrived.

[51]Section 55(1) of the Borders, Citizenship and Immigration Act 2009 replaced section 21 of the UK Borders Act 2007 from November 2009. It requires the Secretary of State to make arrangements for ensuring that any function of the Secretary of State in relation to immigration, asylum or nationality and any function conferred by or by virtue of the Immigration Acts on an immigration officer is “discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”. Section 55(3) provides that a person exercising these functions must have regard to any guidance given to him by the Secretary of State for the purposes of section 55(1).

[52]The background to section 55 is set out in ZH (Tanzania) v Secretary of State for the Home Department

[2011] UKSC 4

by Baroness Hale. She highlighted the international obligation of the United Kingdom under article 3.1 of the UN Convention on the Rights of the Child 1989 (UNCRC) which provides that “[i]n 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”. As she recorded (§23), the immigration authorities were at first excused from the duty which was imposed on other public bodies by section 11 of the Children Act 2004 to carry out their functions having regard to the need to safeguard and promote the welfare of children, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters, but that reservation was lifted in 2008 and section 55 of the Borders, Citizenship and Immigration Act 2009 followed. ZH (Tanzania) demonstrates how considerations relating to the welfare of children may now significantly affect immigration decisions.

[53]In November 2009, “Every Child Matters”, statutory guidance to the Border Agency on making arrangements to safeguard and promote the welfare of children, was issued under section 55 of the Borders, Citizenship and Immigration Act 2009. Its provisions include, for example, a requirement to make a referral to the local authority when a child appears to have no adult to care for them (paragraph 2.22) and, where a child is identified as vulnerable as a result of a suspicion of trafficking, to refer details of the case simultaneously to the local authority and to the specially trained ‘competent authority’ team established under the Council of Europe Convention on action against trafficking in human beings by which the UK has been bound since 1 April 2009.

[54]Counsel for the Secretary of State reproduces in her skeleton argument Home Office guidance which was effective prior to November 2009. This appears to come from a document entitled “Processing Asylum Applications from Children” which is to be found in one of the authorities bundles at Tab 7. That document appears to date from May 2009 so was not in force when the appellants arrived here but it appears to be common ground that regard can be had to the guidance in it. It appears to have been superceded by subsequent guidance on the same topic. It may be that the most up to date version is that contained in the bundle at Tab 9, which has the date of August 2010 attributed to it in the bundle index. We were referred to it during the hearing, and in particular to section 6 of it which is headed “Screening” and section 7 which concerns trafficking. There is a section 9 which deals with referrals to local authorities, including setting out the steps that must be taken to bring a matter to the attention of the local authority in all sorts of situations which may give rise to child protection issues. Annex A to the document is a form entitled “Referral to Child Welfare Services”.

[55]Paragraph 6.2 emphasises that the screening process “is not the place to explore the claim for asylum” and that its purpose is to register an application for asylum and to obtain details about:

“the child’s identity, country of origin and family, the history of how they arrived in the UK and their documentation; any previous claims for asylum; their health and any special needs; security related information; and the identity of anyone accompanying the child or acting as their Responsible Adult. Additionally, the applicant’s photograph and fingerprints are taken.”

[56]Paragraph 6.2 also says:

“There is no requirement for a Responsible Adult to be present when the child is being interviewed initially (for example at first contact) or at their screening interview and it is in the interest of the child that these interviews are not delayed unnecessarily e.g. while arrangements are made for the Responsible Adult to be present. However, the child may prefer to be screened in the presence of a legal representative. When this is the case, every opportunity should be taken to accommodate the child’s wishes though these need to be balanced against operational needs and the likely delay in re-booking the screening interview. Where there is no Responsible Adult or legal representative present, particular care is required to ensure that the approach in the screening or other non-substantive interview does not goes beyond inviting a response that verifies that asylum is being claimed. So, in the process of registering their asylum application, an interviewer may ask a child “Are you saying that you are afraid to return to your home country? An initial interview or screening interview without a Responsible Adult or legal representative present should not however involve a child being asked to explain or elaborate on why they are afraid to return to their home country. However, it should be explained to the child that they will have an opportunity to explain these details at a later date. It may be that details or information relating to the substance of their asylum claim are nevertheless volunteered by an unaccompanied child in the course of verifying that they are applying for asylum in the UK. Asylum decision makers should not rely on details or information obtained from an interview where no Responsible Adult or legal representative was present unless these details or information have been explored and raised with the applicant during the substantive asylum interview - in the presence of a Responsible Adult or legal representative - and the applicant has been given an opportunity to explain any related issues or inconsistencies. But case owners must always bear in mind that the purpose of the screening interview is not to go into details of the asylum claim itself regardless of whether a Responsible Adult is present or not.”

[57]Paragraph 6.4 includes the following:

“Should the child not be in the care of a Local Authority it is the responsibility of the ASU or other screening officer to notify the relevant Local Authority, who will arrange for the child to be collected. The referral must be made by both phone and fax and must be recorded in the Home Office file and on CID.”

[58]On the subject of trafficking, paragraph 7 includes the following:

“In cases where a child appears to have been trafficked, case owners should immediately speak to their senior caseworker, and make a referral to the local authority social worker or local police for the area in which the child is currently residing ….”

The statutory duties of the local authority in relation to children

[59]The Children Act 1989 (“the Children Act”) is a far reaching and fairly comprehensive Act. I need only refer to a few of its provisions here. They were the same at the relevant time in 2009 as they are now.

[60]Every local authority has a general duty under section 17 of the Children Act to safeguard and promote the welfare of children within their area who are in need by providing a range and level of services appropriate to those children’s needs. Section 20 of the Children Act imposes a duty on every local authority to provide accommodation for any child in need within their area who appears to them to require accommodation for one of a number of stipulated reasons, for example as a result of there being no person who has parental responsibility for him. Where a local authority has reasonable cause to suspect that a child who is found in their area is suffering or is likely to suffer significant harm, it has a duty under section 47 of the Children Act to investigate in order to decide whether it should take any action to safeguard or promote the child’s welfare. The action available to the local authority includes making an application for an order under section 31 of the Children Act placing the child in the care of a local authority.

Mitting J’s decision: the interviews

[61]Mitting J accepted that paragraph 2 of schedule 2 of the 1971 Immigration Act permits an immigration officer to ask questions of any person who has arrived in the United Kingdom to determine whether he is a British citizen and if not whether he should be permitted to enter and if so on what basis and that questioning was also permissible about other issues such as those arising in relation to the Dublin II Regulation and in relation to the possibility of trafficking. He considered that many of the answers given by the appellants were therefore in relation to proper questions.

[62]The debate focussed on questions about the details of an actual or possible asylum claim. By virtue of paragraph 352 and paragraph 352ZA of the Immigration Rules, after FA said that he came here to be safe and to claim asylum, the details of his asylum claim should not have been explored in the absence of a responsible adult and the answers he gave during the initial interview after this point about the details of his asylum claim could not therefore be relied upon for any purpose by either the Secretary of State or an immigration judge.

[63]However, Mitting J accepted that because AN did not indicate at any stage during his initial interview that he wished to claim asylum, the entirety of his initial interview was lawful and proper, even though it had not been conducted in the presence of a responsible adult. Accordingly Mitting J held that AN’s answers could be taken into account by the decision maker considering his later asylum claim and by an immigration judge.

[64]In so far as AN’s answers (or those given by FA in response to proper questions) were inconsistent with subsequent answers, Mitting J said that care would need to be taken to identify the reason for the inconsistencies and that it may be right in an individual case to attribute little or no weight to them but that that would be a familiar matter of assessment for an immigration judge hearing an appeal and would not completely prevent the use of the answers.

Mitting J’s decision: detention

[65]Mitting J accepted that detention of each appellant was prima facie lawful under paragraph 16(2) of schedule 2 of the 1971 Act. He considered two features of the statutory guidance relating to the detention of children which might nevertheless render the detention unlawful. First, children must only be detained in the most exceptional circumstances; he considered that the circumstances of both appellants were indeed exceptional. He hesitated more over the requirement that children should be placed in the care of the local authority as soon as practicable, considering whether the immigration officer should have notified social services immediately upon receipt of each appellant into immigration detention but concluding that in fact the detention was not rendered unlawful by the delay that occurred before this was done. He commented that “[h]ad the detention been of any significant length, my reservations might have caused me to find that it may have been, for a short period, unlawful”. However, he was influenced by the evidence that it was thought necessary for the immigration officers to obtain for social services the information that was elicited in the initial interviews and that the appellants were given time to rest and recover before being interviewed. He attributed the delay from the end of the interview to the appellants actually being entrusted to the care of social services to the difficulty of obtaining the attendance of the necessary personnel and transport at night.

Mitting J’s decision: fingerprinting

[66]It was conceded on behalf of the Secretary of State that there was no lawful basis for fingerprinting AN without any adult present and fingerprinting FA only in the presence of G4S officers. Mitting J considered that the purpose of the prohibition on fingerprinting a child without a responsible adult in attendance was to ensure that the child was not alarmed by the process and he took the view that no harm had been done. He declared the taking of the fingerprints unlawful but declined to give any further relief, for example by prohibiting the subsequent use of the fingerprints. The submissions The appellants’ submissions

The submissions

[67]Counsel for the appellants would, I think, have liked the court to establish a comprehensive framework for the treatment of unaccompanied children such as AN and FA which would now be generally applicable. That is not necessary for the determination of this appeal nor would it be appropriate given that the circumstances which require to be considered are the circumstances as they were in 2009 and that the intervening three years have brought changes in this evolving area of the law. Counsel sensibly indicated in argument that they were content to focus upon these appellants and upon the position as it was at the time of their arrival and I will confine my examination of their rather wider ranging submissions accordingly.

[68]The appellants argue that it was unlawful a) for referral to social services not to have taken place as soon as it was established that they were unaccompanied children b) for them to have been interviewed in the absence of a responsible adult with a view to obtaining material that may be relevant to possible asylum claims c) for reliance to be placed on such material in determining their asylum claims and d) for them to have been detained once the booking in phase had been completed. Although the appellants’ skeleton argument contained complaint about the way in which the judge dealt with the fingerprinting issue at trial, that issue was not pursued in oral argument and it is difficult to see what it would really have added to either appellants’ case if it had been.

[69]Underpinning the appellants’ submissions in relation to the live matters is not only an emphasis upon the duty to treat the best interests of the child as a primary consideration (which they say dictated a prompt referral to social services, the prompt provision of a responsible adult, no interviewing in the absence of a responsible adult, and no reliance on material obtained in such an interview) but also a contention that unless there are robust disincentives, immigration officials will, in the name of immigration control, take all steps in relation to detention, search, examination, questioning and fingerprinting that are not expressly prohibited. An implied theme of their submissions is that immigration officials see it as in the interests of immigration control to obtain as much information as possible from the child directly, without the mediating influence of a responsible adult, because this will enable them to penetrate more effectively to the truth of the matter and to restrict entry to this country. It is no surprise that the respondent took issue with this and counsel for the appellants did accept in argument that the protection of a child’s interests has to be integrated with proper immigration control.

[70]The issues in this case are intertwined and it is not entirely easy to separate out the appellants’ submissions in relation to the four issues they raise. However, I will attempt to isolate the main strands of argument in relation to each of the issues before returning to their all-encompassing submissions.

[71]The appellants base the requirement to refer promptly to social services on the duty to make the best interests of the child a primary consideration, as recognised in the UK Border Agency Code of Practice for Keeping Children Safe from Harm (hereinafter simply “the Code”, the relevant provisions of which I have dealt with in paragraph 42 et seq above). The appellants were children who needed the provision of a responsible adult (as available through social services) and whose welfare needed to be assessed and provided for, including the provision of alternative accommodation which would free them from Border Agency detention.

[72]The appellants also rely on the provisions of paragraph 5.1 of the Code which requires the Border Agency to refer a child who appears to have no adult to care for him immediately. In addition, as a referral to social services was the way in which to achieve the safeguard of a responsible adult, they invite attention to Article 19.1 of the Reception Directive to which I refer above and also below.

[73]The appellants’ submissions concerning the unlawfulness of the initial interview without a responsible adult proceed in part by way of analogy with the domestic provisions concerning fingerprinting (section 141 of the Immigration and Asylum Act 1999, see above) and concerning the requirement for a responsible adult to be present at a substantive asylum interview (Immigration Rules paragraphs 352 and 352ZA, see above) but also draw upon the requirement to make the best interests of the child a primary consideration and upon the European Directives.

[74]Fingerprinting, they argue, is but one aspect of identifying and examining a person for immigration control purposes and there is no logical reason to differentiate other aspects of the process and to restrict the prompt provision of a responsible adult to fingerprinting. Why, they ask by way of example, should fingerprinting require the presence of a responsible adult but not a personal search? Furthermore, they say, children who are being detained, examined and interviewed are at least as much in need of an explanation of what is happening, and of advice, reassurance and assistance, as a child who is being fingerprinted. It follows, they submit, that a responsible adult had to be provided promptly to assist the appellants not just in relation to fingerprinting but also in relation to detention, search, examination under paragraph 2 of schedule 2 to the Immigration Act 1971, and interview. Equally, it is in the best interests of a child who has not yet indicated that he wishes to claim asylum to have a responsible adult present at an interview which may be relied upon in relation to his immigration status just as much as it is in the interests of a child who is being interviewed about an asylum claim that he has already made. The significance of the timing of making an asylum claim and the potential damage caused to such a claim by inconsistencies of account illustrate, they say, the importance of safeguards for the child in an interview that may produce material relevant to the issue of asylum. Furthermore, a child may need help from a responsible adult in order to claim asylum or to advance claims on other bases, for example a human rights claim, and may also have pressing physical, emotional and psychological problems which need to be assessed and for which provision needs to be made.

[75]Even though the European Directives are concerned with asylum seekers, the appellants turn to them for guidance as to how the duty to make the best interests of a child a primary consideration is carried into effect before the child has claimed asylum as they argue that there should not be any differentiation between the treatment of children who have claimed asylum and those who have not, given that, in terms of the best interests of children, there is no clear boundary between the two groups. They rely upon Article 19.1 of the Reception Directive which requires measures to be taken as soon as possible to ensure necessary representation of unaccompanied minors and which, although it is contained in a directive dealing with the reception of asylum seekers, is not limited in terms to unaccompanied minors who have made an application for asylum. They also rely on Article 17 of the 2005 Directive requiring that measures be taken to ensure that a representative represents and/or assists the unaccompanied minor with respect to the examination of his asylum application. These provisions point the way, they say, with regard to the protective features required for minors.

[76]Reliance is also placed on Article 12 of the UNCRC which requires the opportunity for a child to express his views freely in all matters affecting him and to be heard in any judicial and administrative proceedings affecting him either directly or through a representative or appropriate body.

[77]As to the issue of reliance on material obtained in the initial interviews in the absence of a responsible adult, the appellants submit that it is not sufficient safeguard if the use of material obtained in the initial interview is regulated by weight rather than by admissibility. The damage may not be reparable by this process, they say, and the only reliable safeguard is to prohibit any reliance on the material. They cite Regina (Refugee Law Centre) v Secretary of State for the Home Department

[2004] EWCA Civ 1481

where Sedley LJ, addressing a submission that the availability of an appeal would cure any error in the initial decision-making process in relation to claims for asylum, said (at §15) that “an applicant is entitled not only to a fair appeal but also to a fair initial hearing and a fair-minded decision” and that:

“the consequences of the risk….may very well not be susceptible of appeal. If the record of interview which goes before the adjudicator has been obtained in unacceptably stressful or distressing circumstances, so that it contains omissions and inconsistencies when compared with what the applicant later tells the adjudicator, the damage may not be curable.”

[78]Among the problems that they say would be caused by permitting the use of material obtained in an interview conducted without a responsible adult present, the appellants say that an inappropriate onus would be placed on the child to use a form of words that indicates an asylum claim and that the immigration service would have an incentive to interview the child as fully as possible without a responsible adult present.

[79]They take Mitting J to task for his rejection of the argument that it was contrary to AN’s best interests for reliance to be placed on answers obtained during his initial interview. Mitting J’s view was that it may not be in AN’s best interests to be granted asylum if in fact he left home through economic reasons or from boredom and, if I have understood his paragraph 49 correctly, he considered that the material obtained in the initial interview may assist in determining whether AN had, in truth, fled from Afghanistan in fear of persecution. The appellants argue that this reasoning is flawed and that procedural and substantive safeguards are the most effective means of obtaining the child’s full and reliable account of the reasons why he is in the UK and should not be removed.

[80]The main foundation for the appellants’ submissions about detention is paragraph 3.24 of the UK Border Agency Code of Practice for Keeping Children Safe from Harm which provides that unaccompanied children must only ever be detained in the most exceptional circumstances. Support, if it were needed, would be derived from the requirement (as set out in paragraph 1.6 of the Code) that the best interests of the child are to be a primary consideration in decisions about his future and from the two European directives of 2003 and 2005 which I have set out above.

[81]The appellants accept that an arriving child can be asked what language he speaks, how old he is, whether he is accompanied, and whether he has a document entitling him to enter such as a British passport or a visa, as well as whether he requires refreshments or needs a doctor. However they submit that once it is recognised that he is an unaccompanied child who needs leave to enter, social services must be informed and a responsible adult must be provided (which a referral to social services will facilitate) before there can be any further interviewing. If referral to social services is deferred so that an interview of the kind that took place here can be carried out without a responsible adult, then detention in the meanwhile is, in their submission, unlawful on two counts, first because it is not lawful to detain a child in order to carry out such interviews and secondly because it is not lawful to detain a child without even having referred their case to social services. Furthermore, if the child is interviewed without a responsible adult present, no reliance can be placed on the interview.

[82]The appellants concede that in some cases, there may be a need to take steps immediately in order to protect a child but they say that the questioning in this case was not carried out in those circumstances as can be seen from the fact that it was possible to give both appellants time to rest before they were interviewed. Where there is a possibility of the child having been trafficked, which did not appear to be the case here, they submit that far from that being a reason to press on with interviewing them, it will normally be a reason for the child first to have the protection of the attendance of a responsible adult who can assist them in these particularly difficult circumstances and it will not inevitably be necessary for the child to remain detained by the UKBA whilst the topic is pursued. Should more urgent questioning be necessary, then the answers should not be capable of being relied upon in making immigration decisions in respect of the child.

[83]They also concede that it is not unlawful to detain these appellants for a period for their safety and that their circumstances were exceptional, within the meaning of the Code, to this extent, but they say that the power to detain is only to be exercised whilst alternative arrangements are made and the appellants should have been placed with social services as soon as practicable which required an early referral to the local authority. They rely upon the failure of the immigration officials to contact the local authority as evidence that the purpose of the appellants’ detention was not, in fact, protection but in order to question them for immigration control purposes.

The respondent’s submissions

[84]Counsel for the Secretary of State takes issue in her skeleton argument with the widening of the scope of argument on appeal compared with before Mitting J. She argues that the issue before Mitting J was whether reliance could be placed on information volunteered by a minor on arrival which was inconsistent with their asylum claim. I cannot accept that the argument was so limited. Mitting J indicated at paragraph 41 of his judgment that the submissions were “extensive and wide-ranging”. The grounds of challenge that he there distilled from them go wider than the issue now identified by the Secretary of State and include whether it was lawful to conduct the initial interviews and whether the detention of the appellants was unlawful. In his consideration of the arguments, the judge dealt with the implications of the absence of a responsible adult from the interviews and, under the heading of detention, with the question of whether social services should have been notified immediately. It may well be that the arguments have been presented to us rather differently from the way in which they were presented to Mitting J, but the issues that we have been invited to consider were, I think, live ones at first instance as well. However, as I have already indicated, it would be inappropriate, as the appellants accept, to widen the focus beyond the facts of this case and the various requirements of law and guidance as they stood when these appellants arrived here.

[85]In relation to the requirement that a responsible adult should have been provided for the appellants for the processes that took place on the day of their arrival, the Secretary of State points out, accurately, that there is no express requirement of domestic law or guidance that a responsible adult should be provided within a particular time frame or at any specific stage of proceedings other than for the substantive asylum interview. It is further submitted that there is no basis for suggesting that Article 19 requires a responsible adult to be provided for all initial operational purposes. There is, it is said, a real and important difference between the substantive investigation of an asylum claim and these initial operational processes.

[86]As to the complaint that an earlier referral was not made to the local authority, the respondent disputes that it was necessary or feasible for that to be done and says that referral was made as soon as reasonably practicable in the circumstances prevailing in 2009. The Secretary of State invites attention to the practical difficulties that it is said attended a referral to the local authority, including delays in the local authority responding, the perceived unwillingness of the local authority to accept a referral without more information than is obtained in the booking in interview and without all medical issues having been dealt with (as to which, see the response from the UKBA at Dover to which I allude above), and limitations in relation to the provision of a responsible adult who it is said would not normally be provided on first arrival of an unaccompanied child. It is submitted that it cannot be presumed that social services would be willing for a responsible adult to attend and then to have to wait whilst the necessary processing was undertaken and an interview concluded. It is also said that an adult sent by social services will not necessarily be trained to provide advice in relation to an asylum claim and will certainly be no better informed about the system than the UKBA staff and no more able to assist the child than UKBA staff who are trained in interviewing children.

[87]The Secretary of State submits that it is inappropriate for the appellants to extrapolate as they do from the requirement of a responsible adult during fingerprinting; fingerprinting is treated in the way that it is, it is submitted, in order to achieve consistency with criminal law. It is also submitted that not only is a responsible adult not necessary for the processes that the appellants claim, it would be contrary to the best interests of a child to have to wait for one to arrive before even basic data gathering could take place.

[88]It is said that the initial interviews were needed to gather information (as the appellants accept up to a point) and that it adds little time to the process to allow a child to make their claim for asylum and to indicate their route to the UK. It is submitted that this is not obviously a less desirable way to proceed than bringing the child back to make the claim at a later stage and the alternative of dealing with the matter on arrival but only after awaiting the attendance of a responsible adult would be worse, they say, as it would string out the process. It is emphasised that the issue of trafficking particularly requires immediate action; there are domestic and international obligations to investigate trafficking issues and prompt action is needed in order to track the traffickers.

[89]The judge’s acceptance that there could be reliance on the material gathered in the initial interview, leaving it to the determination of the decision maker to regulate the weight it carried, is supported by the respondent who adds that if undue weight were to be given to the material, the appeal process could be used to cure the damage. Counsel takes issue with Sedley LJ’s comments in the Refugee Law Centre case as insufficiently trusting of the abilities of decision makers and immigration judges. She argues that the law could have provided that a responsible adult had to be there whenever questions that may be relevant to asylum came up but that is not what it provides; it only regulates the position once a claim for asylum has been intimated and there is no reason in principle why material obtained where that has not occurred should not be relied upon. She submits that the initial interview is part of the picture in relation to the genuineness of the child’s claim and in the interests of proper immigration control reliance on it must be allowed subject to the safeguard of its weight, if any, being determined according to the particular circumstances of the case. She went so far in submissions as to suggest that if the material was excluded completely, children in the position of these appellants would be exempted from immigration control without any statutory basis for that although she modified that, when it was probed, to a submission that they would be excluded from effective immigration control. This appeared to be partly because it was perceived that excluding the material would encourage false asylum claims.

[90]As to the detention of the appellants, the Secretary of State does not accept of course that earlier referral should have been made to social services so does not accept that failure to do this can render the detention unlawful. She points out that there was power to detain the appellants as illegal entrants and says that, as their circumstances were most exceptional and they needed to be kept safe, their detention was within the Code. She identifies the period of resting, in waiting for the initial interview, as the period which has generated the argument about unlawful detention because there is no dispute about the appellants being detained initially and basic information sought from them. Furthermore, it has not been shown, it is submitted, that had there been an earlier referral to social services anything would have been different.

Discussion

[91]It is important to recognise that the arrival of unaccompanied children in circumstances such as those in this case presents UKBA and social services with difficult problems. Immigration control and child protection/making the best interests of a child a primary consideration do not always pull in the same direction. There are bound also to be logistical challenges, shortages of resources such as readily available social workers and accommodation, and an almost infinite variety of adversities to which the arriving children have been and are still subject. This was realistically recognised by counsel for the appellants who freely conceded that there may be circumstances in which what they contend should have happened in this case would not be feasible.

[92]The immigration officers were entitled to establish whether there was a basis on which the appellants may enter the United Kingdom (see paragraph 2 of schedule 2 of the Immigration Act 1971) and there is no dispute that they could be asked what language they spoke, their age, and whether they were accompanied. They could be detained for that purpose and because they were apparently illegal entrants and there were reasonable grounds to suspect that removal directions may be given in respect of them (paragraph 16 ibid).

[93]The fact that they were children necessitated observance of the UK Border Agency Code of Practice for Keeping Children Safe from Harm. Although the Code said that it did not create a new or overriding duty which would interfere with the Border Agency’s primary function of upholding the integrity of the immigration control system (paragraph 1.12), it did contain principles to which the Agency had to have regard in the exercise of its functions (see section 21(2) UK Borders Act 2007). This meant that the best interests of the child were to be a primary consideration when making decisions about his or her future (see paragraph 1.6 and the following paragraphs which amplify it). One of the obligations of the Agency under paragraph 1.9 was to identify children who may be at risk of harm when they come into contact with the immigration system and to refer them to the appropriate agency and work effectively with that agency. It is clear that the appropriate agency in this case, as in most, was the local authority social services department which had a team whose duty it was to respond to the needs of unaccompanied children such as these. There is no dispute that the children needed to be referred to the local authority, only a dispute as to how soon that needed to happen.

[94]The section of the Code dealing with the requirement for the UKBA to “make timely referrals of children and work positively with others” plainly applies to these children because they appeared to have no adult to care for them and therefore had to be referred (paragraph 5.1). Paragraph 5.3 requires that the referral “must be made immediately by phone followed up by fax using an officially agreed form”. We were supplied after the hearing with a blank form entitled “Referral to Child Welfare Services” which I think may be thought to be that form. It appears to be identical to the form in Appendix A to the August 2010 guidance “Processing Asylum Applications from Children” to which I refer above. It includes a section on immigration status headed “Summary of Immigration Status & Issues” and there is a box to tick if it is suspected that the child is a victim of trafficking.

[95]Of course “immediately” (in paragraph 5.3 of the Code) must be interpreted according to the circumstances of the particular case but the choice of that word and the requirement that the initial contact should be by telephone both convey a sense of urgency about making the referral of a child in need to the local authority, the form being by way of a follow up. I can see no reason why in this case the requirement to make an immediate referral should have been interpreted as meaning that a referral should take place only once the children had undergone an initial interview.

[96]I am not persuaded that social services required anything more than the basic information about the child and his circumstances that the appellants concede should properly have been sought before their cases were referred and which was obtained in the booking in process. If immigration officials thought that social services did require more, they must have been mistaken. Not only would it not be consistent with Ms Goodman’s evidence, it would not be consistent with social services’ own duties. Social services have a duty to safeguard and promote the welfare of children in their area who are in need as these appellants were and this duty is not dependent on or affected by the child’s immigration status and whether or not he is claiming asylum. If the child requires medical treatment and he has no adult with him to secure it, then social services would be responsible for that; they would not be able to decline to take responsibility for the child until he had been taken for medical treatment by the Border Agency.

[97]I accept that it is conceivable that acutely urgent issues may sometimes arise that necessarily divert the Border Agency for a time from making a referral to social services but that was clearly not the case here. What followed the booking in process was not urgent attention to an emergency medical problem or questions about trafficking issues that required pursuing immediately, for example, but a period of rest for the child.

[98]Deferring the referral to social services is not easily reconcilable in this case with making the children’s best interests a primary consideration. As Ms Goodman points out, social services have particular expertise in assessing children and making provision for their welfare needs. They can also assist in enabling children to give their account of what has happened to them and why they have come to this country. Informed early about the arrival of the appellants, they could have begun to make arrangements for their collection and accommodation and, if resources permitted, attempted to get a social worker or other responsible adult to accompany and/or assist the appellants during at least some of the processes they had to go through with the Border Agency. To use words from the Code, a timely referral would have enabled immigration officials and social services to work positively together to ensure that the children were kept safe and their best interests made a primary consideration.

[99]All in all, I am of the view that the Border Agency were required on the facts of this case to make an immediate referral to the local authority following the completion of the booking in process, by which time they knew that these appellants were apparently unaccompanied children arriving in Dover from abroad who would need to be looked after by social services.

[100]However, the fact that a referral should have been made at that point does not, of itself, mean that all that followed was unlawful. It would not be in the interests of children, individually or generally, or of immigration control to hold that, as a matter of principle, no further questions can be put to an unaccompanied child after their booking in interview or that no further questions can be put in the absence of a responsible adult. This would not cater for issues which may arise in relation to health, trafficking etc. and may necessitate urgent questioning.

[101]It is therefore necessary to look more closely at the particular circumstances of this case in order to determine the status of what followed the booking in interviews of the appellants.

[102]The appellants’ initial interviews did not, in fact, address urgent issues. In so far as they were asked whether they were fit and well, this was clearly for the purposes of ascertaining whether they were fit to be interviewed; questioning with a view to alleviating any pressing health problems they had would have needed to take place much earlier in the process. The interviews were concerned with ascertaining why and how the appellants got here; they were directed towards the issue of asylum. Their content resembles, in some respects, the screening interview described by Ms Pearson.

[103]No convincing explanation has been advanced as to why interviews of this type needed to be undertaken that day. This does not appear to have been a case which gave rise to particular suspicions about trafficking. I am not persuaded by the argument that it was in the child’s interests to provide an opportunity to claim asylum there and then so as to avoid a separate visit later to the Border Agency for the purposes of intimating such a claim. There is more force, in my view, in the argument that a child’s interests are better served by ensuring that he is enabled to explain properly any matters that may be relevant to asylum. The period of rest that was afforded to the appellants is a recognition of the difficulty for them in addressing such issues immediately after the experiences of their journeys and it may be that for some children it is simply not feasible to carry out a constructive interview on the day of arrival at all. Social services, if on hand, would be able to assist in an assessment of this issue.

[104]The disadvantages of pressing ahead, on the day of arrival, with an interview that was not strictly necessary were magnified by the absence of a responsible adult. The presence of a responsible adult at an initial interview such as this is not expressly required by any rules or guidance, nor is it even required for a screening interview. However, the provision made by paragraphs 352 and 352ZA of the Immigration Rules for the substantive asylum interview to take place in the presence of a responsible adult and for the child to have a representative to assist him in the process underlines the importance of proper support for a child in his dealings with the Border Agency in relation to his asylum claim.

[105]The guidance in relation to screening interviews in “Processing Asylum Applications from Children” further underlines this in a number of ways. It makes clear that even a screening interview (which is a later stage than the initial interviews with which we are concerned here) is not the place to explore the claim for asylum (paragraph 6.2). Paragraph 6.2 recognises that the child may prefer a responsible adult or legal representative to be with him during the screening interview even though that is not a legal requirement. It imposes a ban on questions which explore the issue of asylum any further than simply establishing whether or not asylum is being claimed. It limits the use of details which are nevertheless volunteered in the absence of a responsible adult by providing that they should not be relied on unless they have been explored or raised with the applicant during the substantive interview in the presence of a responsible adult or legal representative and the applicant has been given an opportunity to explain any related issues or inconsistencies.

[106]I would not be prepared to say that an initial or screening interview can never take place in the absence of a responsible adult or legal representative or that the absence of such an adult/representative makes an interview unlawful. No domestic rule or policy imposes such a rigid restriction and paragraph 2 of Schedule 2 to the 1971 Act entitles an immigration officer to examine a person arriving in this country for the purpose of determining his immigration position. As for the European Directives, in my view the appellants can derive from them no more than a general indication of the sort of protection that is thought appropriate for children. Notwithstanding the way in which Article 19 of the Reception Direction is expressed, it seems to be clear that both Directives are firmly directed at those who have actually made an application for asylum. Neither FA nor AN was in that category at the start of his interview and only FA was covered by their terms by the end of it; the provisions do not apply to AN at all during the period with which we are concerned.

[107]Furthermore, there are good welfare reasons for being cautious about spelling out rigid restrictions for fear that that might constrain immigration officials who need to explore pressing issues with the child and may feel unable to do so in case it should subsequently be argued that their questions amounted to an unlawful interview.

[108]But if an interview is carried out without the independent support for the child that it is recognised he requires when his asylum claim is discussed (see, for example, paragraphs 352 and 352ZA of the Immigration Rules and the guidance in Processing Asylum Applications from Children), the child’s asylum position must surely be protected by alternative means and it seems to me that the proper way to do this is by regulating the reliance that can be placed on asylum related material which emerges. This was the approach Mitting J took and to that extent I agree with him.

[109]I have been troubled by whether the matter can be addressed, as Mitting J considered that it could, by adjusting the weight attributed to such material rather than by limiting its admissibility in the decision making process.

[110]The rules and guidance about the use of such material which we have considered in this case seem to me to be lacking in consistency.

[111]The Secretary of State conceded in front of Mitting J that reliance could not be placed on answers given to asylum-related questions asked of FA after he had intimated his claim for asylum and has not sought to reopen that on appeal; the discussion which follows proceeds upon that basis.

[112]The first point I would make is that the rules and guidance treat the question of the use of asylum related material differently depending on whether the child has claimed asylum at the time it emerges (I will refer to such a child hereafter as “the asylum seeking child”) or not. I cannot see any logical justification for differentiating on this basis. To my mind, it involves a misplaced concentration on the position of the child as it unfolds rather than looking at the matter from the other end of the process, once all the material that is relevant to the asylum claim has been gathered together. By that point, both children have claimed asylum. Why should asylum related answers given by the asylum seeking child in relation to questions put to him before the substantive asylum interview not be admissible but reliance be permissible on answers given by the other child in the same circumstances?

[113]It may be argued that there is a material difference between the two children because one made his asylum claim at the first possible moment and the other did not. The timing of the claim is, of course, recognised as one indicator of the credibility of the claimant and is something upon which the Secretary of State would wish to rely. Stated bluntly, the perceived justification for the differentiation between the children may therefore be that one may genuinely be seeking asylum (as exemplified by the fact that he has claimed asylum as soon as the question of why he came here was posed) and the other one may well not be.

[114]However it is difficult to treat this aspect of asylum claims by children in the same way as claims made by adults. The Code emphasises that it should not be assumed that a child will have a full understanding of the immigration process (paragraph 2.9) and Ms Goodman’s evidence sets out the difficulties under which children and young people arriving in Dover are often labouring (see for example paragraphs 51 et seq of her first statement). Accordingly, I find it hard to accept this as a justification for differentiating as a matter of principle between the asylum seeking child and the other child. I would be inclined to say that both children should be afforded similar protection in relation to what they said when they did not have the benefit of a responsible adult with them. I find support for this approach in the way in which our domestic criminal law approaches the interviewing of children (see below).

[115]Secondly, the rules and guidance treat asylum related material differently depending on the stage in the immigration process at which it emerges and the surrounding context and I cannot detect a sound basis for doing this either. With variations, this affects both the asylum seeking child and the other child. The substantive asylum interview is hedged about with protections for both children – they must have an adult/representative with them, no ifs or buts. There can be no doubt, I think, that reliance cannot be placed on a substantive interview conducted without such an adult/representative. In contrast, a child may not be so rigorously protected in relation to asylum-related information that he gives at a screening or initial interview where he has no adult/representative with him. The asylum seeking child will have the same protection in this context as he would in relation to the substantive interview, provided that the material emerges in answer to questions put to him by the interviewer about his asylum claim. This is what happened with FA and I agree with Mitting J’s view that in those circumstances, reliance cannot be placed on what the child says. But the net effect of the guidance and rules seems to be that what the lone asylum seeking child says about his claim in an initial or screening interview may be used if he volunteered the information, subject only to the opportunity being given to him to explain himself in the substantive interview with a responsible adult present. As for the other child, what he says in a screening or initial interview may be used whether it has been elicited by questioning or volunteered, again subject to having the opportunity to deal with it in the substantive interview.

[116]The illogicality of this is that the rules and guidance recognise that what a child says about his asylum claim influences its chances of success and that he therefore requires support and assistance in explaining his position, hence the express requirement for the substantive asylum interview to be conducted with a responsible adult/representative present and the guidance banning questions about the substance of the claim in a screening interview. But, whilst the substantive asylum interview may be the centrepiece of the investigation of the child’s asylum claim, it is not the only constituent part. He, or the Secretary of State, may wish to rely on material emerging at other stages. If it is important to provide the child with the support of a responsible adult or representative for the substantive interview, I cannot see why that is not equally important when the child has any other interview in which material which is relevant to the asylum claim may emerge, as it is recognised may happen in a screening interview and as experience in this case shows also happens in initial interviews.

[117]I am not attracted to the idea that the mischief can be corrected by giving the child an opportunity to explain himself on an occasion when he does have the assistance of an independent adult. I share misgivings of the type expressed by Sedley LJ in the Refugee Law Centre case. The damage done by what is said earlier in the process may not be curable in this way. Suppose, for example, that there has been an error in translation in the early interview – for instance, brother translated as cousin or father as uncle. The child may not know of the error and may therefore not be able to explain an apparent inconsistency in his later account. Or suppose that the child was in fact feeling extremely unwell, although this was not recognised by his interviewers, and has no real recollection of the interview. No doubt the decision maker would be presented in these circumstances with conflicting accounts from the interviewers and the child about whether he was compos mentis and would have to decide whether to accept the child’s account. There would be no responsible adult to offer a detached view of the matter and, if the case was like these ones, no tape recording of the interview and no signed record of it.

[118]It is argued that the Border Agency interviewer is specially trained to deal with children and, of course, well versed in immigration processes and therefore as able to safeguard the child’s interests in the interview as a responsible adult would be, in other words, that a responsible adult would add nothing. I would not accept that. The requirement of the Immigration Rules for another adult, independent of the Secretary of State, to be present at the substantive interview is an acknowledgment that even a specially trained and child-focussed interviewer may not be sufficient safeguard for the child. Apart from anything else, the interviewer is in a position of potential conflict because he has a particular role to carry out which, in the interests of immigration control, he has to carry out rigorously and the child may find even proper questioning uncomfortable.

[119]It is instructive to consider the approach taken by the criminal law to similar issues. Our attention was invited to certain provisions of the Police and Criminal Evidence Act 1984 (PACE) and of the attendant Code C and there are other provisions which are also illuminating.

[120]Under PACE, a juvenile must not be interviewed about a possible criminal offence in the absence of an appropriate adult unless the circumstances are urgent for one of the stipulated reasons (see paragraph 11 of Code C) and a senior officer is satisfied that the interview will not significantly harm the juvenile’s physical or mental state. The adult is said to be there to advise the person being interviewed, to observe whether the interview is being conducted properly and fairly, and to facilitate communication with the person being interviewed. The notes to paragraph 11 point out: “although juveniles …. are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or self- incriminating….Because of the risk of unreliable evidence it is also important to obtain corroboration of any facts admitted whenever possible.” (Note 11C)

[121]Sections 76 (confessions) and 78 (unfair evidence generally) regulate not just the weight but the admissibility of evidence obtained in a questionable way. Section 78 provides that the court may refuse to allow evidence to be adduced by the prosecution if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. An interview with a child in the absence of an appropriate adult could be excluded under these provisions.

[122]I think Mitting J was of the view (see his §49) that the best interests of the child would be served by the Secretary of State being allowed to rely upon all the material obtained in relation to AN because that would improve the chances of ascertaining the truth of his position. I am afraid that I do not share his view about this. Plainly he is correct in saying that it may not ultimately be in the best interests of the child for him to be given asylum if the reason for his arrival here was not in fact fear but something more pedestrian or opportunist. Where I differ is in my view as to how to get as near as possible to the truth about that issue. It seems to me the appellants are right to say that procedural and substantive safeguards are the most effective means of obtaining the child’s full and reliable account of the reasons why he is here and that those safeguards should include the presence of a responsible adult when asylum is being discussed. This is not a view based upon the premise that the child’s best interests are secured by obtaining asylum whether justified or not, nor is it to allow the interests of the child to override proper immigration control, because the objective is not to prevent the truth from being discovered but to enable it to be discovered so that his claim can be properly evaluated on its merits.

[123]I return finally, therefore, to the essential question, what use can be made of asylum related material obtained without what I consider would be the appropriate safeguards?

[124]Left to my own devices, without the constraints of existing rules and policy and without the benefit of having seen in advance the judgment of my Lord, Lord Justice Elias, I would have been inclined to say that asylum related answers given by any child in the absence of a responsible adult should not be relied upon at all in the evaluation of his asylum claim. However, I have accepted that it was not unlawful to interview the children in the circumstances in which they were interviewed and I accept also that there is nothing in statute or in the rules, guidance or European directives which prohibits reliance on material obtained as it was from AN. As I have made clear, I have doubts as to the logic of the approach taken in the UKBA’s policies in relation to the interviewing of children and I consider that a rigid application of them risks producing an outcome for the individual child which is not compatible with the requirement to have the interests of the child a primary consideration when making decisions about his future whilst, of course, also ensuring effective immigration control. After considerable reflection, I have concluded, however, that it would be going too far to say that my doubts should be translated into a complete acceptance of what Elias LJ has described as the appellants’ “root and branch attack” on the policies of the UKBA which would result in the Secretary of State and the tribunal on appeal being prevented in every case, as a matter of principle, from relying on answers given in the circumstances in which AN’s answers were given.

[125]My final conclusion is that Mitting J was right to say that the influence of such answers should be regulated by weight in the particular case rather than by any universal principle of admissibility. Not only does this properly reflect the limits to which I am prepared to push my doubts, it is also largely consistent (as Elias LJ points out) with the approach taken in section 78 of PACE which is to require a tailored decision as to admissibility in each case. However, I hope that any decision maker considering the issue of weight will have regard to what I perceive to be the shortcomings of the present policies, to the particular vulnerabilities of children in circumstances such as those of FA and AN, and to the real possibility that difficulties created by interviewing them without a responsible adult present cannot be cured by providing an opportunity for the child to explain his earlier answers either in the substantive interview or later in the process. As Mitting J said, it may be right in an individual case to attribute no weight at all to the material that emerged; in that event, the material should be treated as if it had been excluded from the start.

[126]Where there has been a clear breach of the principles set out in the various provisions governing questioning about asylum to which I have referred earlier in this judgment, it ought at the very least to be exceedingly difficult to persuade the court to admit material that has been thereby obtained; some breaches will inevitably rule out reliance on the material as was the case with FA’s answers following his indication that he was claiming asylum. But decision makers will have to be alert to the possible need to discard material even where matters have not gone that far.

[127]I would therefore dismiss the appeal in so far as it relates to Mitting J’s decision in relation to the interviews and the reliance that can in principle be placed upon them. Elias LJ and I agree upon this although our reasoning differs somewhat.

[128]That leaves the issue of unlawful detention. This was the issue which understandably concerned Mitting J and I have not found it easy either. The conclusion to which I have come differs, in degree, from that of Elias LJ.

[129]As I have said, I proceed upon the basis that it was not unlawful to question the appellants on the day of their arrival and in the absence of a responsible adult. However, it was not necessary to carry out these interviews with these appellants then and I cannot accept that it was in the appellants’ best interests for that to happen, particularly without the opportunity for any input from social services in assessing their condition and their fitness to be interviewed and given that it required a stay in the Border Agency’s premises to rest and recover in preparation.

[130]Mitting J said that had the detention been of any significant length, his reservations might have caused him to find that it may have been unlawful for a short period. He was influenced by his acceptance that the appellants were detained so as to recover before basic information was obtained about them and that this recovery period was of a reasonable length. He accepted that it was necessary for interviews to be conducted that day and I have differed from him about that. That is important, I think, because if it was not necessary to conduct the interviews that day, then there was no reason why, if social services had been contacted at the outset as they should have been, the appellants should not have left the UKBA’s premises as soon as social services were able to make the appropriate arrangements for them. In broad terms, the period of detention between the completion of the booking in process and the end of the initial interview would have been avoided. It was argued that the time between notifying social services and collection would have been shorter if the notification had taken place promptly as the normal team from social services would still have been on duty as opposed to the out of hours team. However I am not convinced that if it had indeed proved possible to contact the normal team (which is possibly doubtful), that would have reduced the period of detention significantly and I do not therefore propose to examine that issue further.

[131]It is to the Code that we must turn in order to determine whether the detention of the boys in these circumstances was consistent with guidance. In my view it was not.

[132]Unaccompanied children must only ever be detained in “the most exceptional circumstances”, says paragraph 3.24 of the Code. This exceptional measure is said to be intended to deal with unexpected situations where it is necessary to detain unaccompanied children very briefly for their care and safety and for no other reason. Where they have no responsible family and friends, they should be placed in the care of the local authority as soon as practicable. I have no hesitation in viewing the circumstances of these children on arrival as “the most exceptional circumstances”, although I know that they are by no means the only children who have arrived in this way. The material questions are whether that continued to be the case later in the day, whether it was necessary to detain them for their care and safety, whether that was why they were detained, and whether they were placed in the care of the local authority as soon as practicable. I would answer all of these questions in the negative. The appellants were detained so that they could be interviewed and those interviews were not carried out for their “care and safety”. The rest period prior to the interview was only required because of the interview and cannot properly be described therefore as for their care and safety either. If the local authority had been contacted earlier as they should have been, the appellants would have been collected sooner so they were not placed in the care of the local authority “as soon as practicable”. It follows that for a short period, between the end of the booking in process and the time of the referral in each case to social services, each appellant was unlawfully detained.

[133]I would therefore allow the appeal to the extent that I would add to/expand the declarations already granted so as to declare that the detention of the appellants during the period I have identified was unlawful.

[134]Elias LJ would also allow the appeal in relation to the legality of the detention but for a lesser period, that is from the conclusion of the initial interview until social services arranged for the child to be collected. I think that the essential difference between us is that he is prepared to accept that it was necessary/appropriate for the appellants to be interviewed that evening and I am not. APPENDIX RE MS GOODMAN’S EVIDENCE In her skeleton argument, counsel for the Secretary of State said that, at first instance, the admissibility of Ms Goodman’s evidence had been challenged and/or it had been submitted that if reliance was placed upon it, an opportunity for cross-examination should be provided but, that in the event the grounds pursued before Mitting J did not rely on that evidence. A rather fuller picture of what occurred at first instance emerged during the appeal hearing. It seems that Mitting J made a direction on 17 March 2011 for the appellants to file and serve evidence upon which they wished to rely within 14 days, that is by 30 March 2011, and for the respondent to file any evidence upon which she wished to rely by 11 May 2011. Ms Goodman’s first statement, no doubt filed in compliance with that direction, is dated 28 March 2011 and deals with arrangements for asylum referrals. Ms Pearson’s evidence is dated 23 May 2011 but nothing was filed by way of rebuttal of what Ms Goodman had said. Counsel for the appellants told us that the debate at the hearing before Mitting J on 27 July 2011 was about the second statement made by Ms Goodman (which was dated 13 July 2011 and therefore did not comply with Mitting J’s March direction) but that no adjournment was sought to respond to it and no application was made to cross examine Ms Goodman. If the Secretary of State was indeed taken by surprise by aspects of Ms Goodman’s evidence, it might have been open to her to seek to address the material points arising from it by adducing further evidence at the appeal. By the time the appeal commenced, however, no further evidence had been produced by the Secretary of State. During the hearing before us, counsel for the respondent produced an email setting out responses from Dover UKBA in relation to a number of questions that she had put to them and including information as to the practicalities of referral to social services which was not in line with Ms Goodman’s evidence. The Secretary of State’s submissions proceeded upon the basis of the UKBA’s understanding of social services position rather than what Ms Goodman described, although reference was made to Ms Goodman’s evidence in making certain points. Consideration was given to the possibility of the appeal being adjourned in order to give the Secretary of State an opportunity to ensure that full material was before the court but it did not seem to us to be appropriate, in the light of the procedural history which I have just set out, to adjourn at that stage, nor was it necessary to do so to determine the matter fairly. In reaching my views on the appeal, I have made use of the entirety of the information that is now available, that is to say that emanating from Ms Goodman, that from the UKBA in Dover, and of course that from Ms Pearson.

[135]I gratefully adopt the exposition of the facts set out in the judgment of Black LJ. However, for reasons I will develop, I respectfully disagree with her conclusion that the appeal should succeed. I would uphold the judgment of Mitting J save that I find that there was a very short period of unlawful detention.

[136]I will not set out again in detail all the relevant legal provisions which have been fully analysed by Black LJ. I would simply emphasise the following features with respect to them:(1) There are two Council Directives relevant to the position of asylum seekers, Directive 2003/9/EC, the Reception Directive, which lays down minimum standard for the reception of asylum seekers in the UK; and Council Directive 2005/85/EC which lays down minimum standards for granting and refusing refugee status. Both apply only to applicants for asylum, defined in both Directives as persons “who have made an application for asylum in respect of which a final decision has not been taken.” That was FA’s status, but it was not AN’s position when he gave his initial interview.

(2) The Directives are reflected in paragraphs 352 and 352ZA of the Immigration Rules. These provisions confirm that a child must be represented at the hearing where his substantive claim to asylum is being considered and be interviewed by someone with specialist training in the interviewing of children. They do not impose this obligation at a screening stage.

(3) Moreover, the guidance which sets out the policy and procedures to follow when dealing with asylum applications by children, entitled “Processing an Asylum Application from a Child”, also distinguishes between the various stages of an asylum application. This is a very detailed document giving instructions and guidance with respect to all aspects of the subject. It is drafted with the legal rights of children firmly in mind. Indeed, it starts by setting out the obligations arising under the United Nations Convention on the Rights of the Child and it emphasises in particular Article 3 which requires that the rights of the child should be a primary consideration. It also draws attention to the statutory obligation under section 55 of the Borders, Citizenship and Immigration Act 2009 which requires UKBA officials to discharge their duties having regard to the need to safeguard and promote the welfare of children. With those considerations clearly in mind, the guidance draws a clear distinction between the screening process which occurs when someone registers an application for asylum and the asylum application itself. It identifies the purposes of the screening process in the following terms: The screening process for child applicants is designed to obtain details about: the child’s identity, country of origin and family, the history of how they arrived in the UK and their documentation, any previous claims for asylum; their health and any special needs; security-related information; and, the identity of anyone accompanying the child or acting as their Responsible Adult. Additionally, the applicant’s photograph and fingerprints are taken. …

(4) Paragraph 6.2 also explicitly deals with the question of representation at the screening interview and confirms that this is not generally required (in contrast to the position where the substantive asylum claim is being examined). It observes that the delays involved in finding a representative may be prejudicial to the interests of the child: It is a requirement of the immigration rules (paragraph 352) that a Responsible Adult be present where an unaccompanied child is interviewed about the substance of their claim i.e. when they are subject to a substantive asylum interview. There is no requirement for a Responsible Adult to be present when the child is being interviewed initially (for example at first contact) or at their screening interview and it is in the interest of the child that these interviews are not delayed unnecessarily e.g. while arrangements are made for the Responsible Adult to be present. However, the child may prefer to be screened in the presence of a legal representative. When this is the case, every opportunity should be taken to accommodate the child’s wishes though these need to be balanced against operational needs and the likely delay in re-booking the screening interview. These instructions were not in fact in place when the asylum applications of these appellants was under consideration, but the evidence before the court below from Ms Pearson, an officer of UKBA, was that they broadly reflect the earlier policies which were in force at that time but were not written down in as much detail. In any event, it is not suggested that the earlier policies would have treated the interests of the children more favourably.

(5) Quite independently of the provisions relating to asylum seekers, there is the Code of practice issued pursuant to section 21 of the UK Borders Act 2007 which is designed to ensure that in exercising its functions, the UKBA takes appropriate steps to ensure that children in the UK are safe from harm. Certain provisions of the Code are of particular significance. Paragraph 1.6 provides that the best interests of the child must be a primary consideration, although paragraph 1.12 stated that:

“The Code does not create any new or overriding duty which will interfere with the UK Border Agency’s primary function; namely to uphold the integrity of the immigration control system and in doing so, to apply the immigration legislation, the immigration rules and the relevant policies of the Secretary of State for the Home Department.”

This Code has now been replaced by a similarly framed code issued under section 55 of the Borders, Citizenship and Immigration Act 2009. Paragraph 1.12 has now been repealed but it was in force at the material time. To that extent it would suggest that the interests of the child would in this context of asylum have weighed less heavily at the time of the relevant interviews than they would now do. (The repeal reflected the fact that the United Kingdom government withdrew a reservation it had originally made to the Rights of the Child Convention with respect to children who were the subject of immigration control.) However, even under the new code it is well established that the interests of the child are a primary consideration but not the primary, and still less the paramount, consideration as Baroness Hale made clear in a well known passage in her judgment in ZH (Tanzania) v Secretary of State for the Home Department

[2011] UKSC 4

[2011] 2 WLR 148

[2011] 2 AC 166

para25. (6) Paragraph 3.24 of the Code deals with the circumstances when a child may be detained by the UKBA itself. The provision is set out fully at paragraph 45 above. The important features of the paragraph are that the circumstances in which a child can be detained should be exceptional and only for their care and safety; and if no-one is available to look after the child, he or she “should be placed in the care of the Local Authority as soon as practicable.” Part 5 of the Code also confirms the obligation to make “timely referrals” and paragraph 5.3 states that the referral should be made immediately by phone and followed up by fax.”

[137]Each of these children was subject to an interview before being referred to social services. In the case of AN, who did not initially claim asylum, it was an initial interview. In the case of FA, who did claim asylum, it was a screening interview.

[138]There are in essence three inter-related issues arising in this appeal. First, were the UKBA officials at the port entitled to conduct these interviews with AN and FA and to ask them the range of questions they did before referring the children to social services? Second, if they were not entitled to ask all those questions at the initial (AN) or screening (FA) interviews, were the answers to questions improperly posed in principle admissible in the subsequent interview when the substantive claim to asylum was considered, and could they be deployed by the Secretary of State in subsequent appeals? Third, was the detention of the two children unlawful on the grounds that there was a failure speedily to refer them to Kent Social Services in accordance with the terms of paragraph 3.24 of the code, and/or because there was a failure to treat their interests as a primary consideration?

[139]Mitting J set out in full the questions posed in the interviews with each of the two appellants. AN gave answers at his initial interview which were in a number of respects fundamentally inconsistent with the basis of his subsequent claim to asylum, which claim he did not make until six days after the interview.

[140]The judge concluded that the questioning was in principle appropriate save that once FA had intimated his intention to claim asylum, it was inconsistent with paragraphs 352 and 352AZ of the Immigration Rules for him to be questioned at all about the substance of the asylum claim. The judge held that with regard to the questions properly posed, the answers were in principle admissible in the substantive asylum interview and could be deployed in any subsequent appeals. There was, he concluded, no reason why lawfully obtained material should not be so considered, although the judge accepted that the decision maker could properly take account of the circumstances in which the interview took place when determining what weight, if any, to place on the answers.

[141]Mitting J accepted a concession from the Secretary of State that the questions going to the substance of FA’s asylum claim, which should not have been asked at all until FA had the benefit of representation at the substantive interview, could not be relied upon for any purpose in any subsequent interviews or appeals. Mitting J did not address the question whether the answers given to other questions would in principle have been admissible even if the interviews had been held in breach of UKBA’s legal obligations.

[142]As to the question of detention, Mitting J accepted that this had caused him some concern. He concluded that it was not unlawful for the children to be detained for two or three hours before being interviewed in order for them to recuperate and rest before the basic information was obtained from them at interview. Moreover, he accepted evidence from UKBA to the effect that Kent social services would not expect to be contacted until the relevant information had been obtained from the child. Kent Social Services were in fact contacted immediately after the interviews in each case, and the subsequent delay resulted from the arrangements which had to be made to transfer the children to the Social Services. In the circumstances the judge held that there had been no unlawful detention.

Were the interviews lawfully conducted?

[143]The central issue in this appeal, in my judgment, is whether the initial interview for AN, or the screening interview for FA, were lawfully conducted. The answer to that question bears upon whether the answers given in interview are admissible in evidence, and also whether keeping the children at the port until they were properly ready to be interviewed involved unlawful detention.

[144]It is accepted that some information can properly be obtained from the child before the child is transferred to social services. Schedule 2 to the Immigration Act 1971 confers a power on an immigration officer to examine someone whom he suspects may unlawfully have entered the country and to detain him pending that examination. The power to detain is, however, modified in the case of unaccompanied minors by the terms of the Code in the way I have described.

[145]The appellants rely in particular on the obligation in paragraph 3.24 to refer the child as soon as is practicable, linked with paragraph 5.3 requiring that contact will usually be “immediately by phone”; and they also contend that to conduct interviews of a child in the absence of a representative fails properly to treat the interests of the child as a primary consideration. It is submitted that the effect of these considerations is to allow only a perfunctory examination of the child on first contact for the purpose of obtaining the child’s name, nationality and immigration status before putting the child into the care of social services. Generally, no further information should be sought until an interview at a later date when the child can be represented. Exceptionally there may be a need urgently to ask further questions before referral, such as if trafficking is suspected. But that will be unusual and was not the case here. The interviews were improperly conducted and no account should subsequently have been taken of any of the information volunteered in interview by either of these appellants.

[146]This is a root and branch attack on the carefully framed policies which UKBA has adopted, no doubt after extensive discussion and consultation, with respect to questioning unaccompanied children. In her witness statement made in these proceedings, Laura Pearson, an officer in the UKBA who has responsibility for policy and processes relating to unaccompanied children, identified the purpose of the interview with respect to those unaccompanied children who have, and those who have not, sought asylum in the following terms:

“5. The purpose of the initial interview is to establish as soon as possible, the minor’s immigration status, the information needed to bring the minor into the care system to identify if they have been trafficked and to establish if they wish to claim asylum. A welfare interview will also be conducted to check if the child is fit to be interviewed and to see if they are tired, hungry, ill etc. 6. Where a minor wishes to claim asylum, a screening interview will take place (which does not examine the substance of the asylum claim) but seeks to register the asylum claim by gathering basic information about the child’s biographical data, travel history, method of entry into the UK and documentation. A child friendly screening form has been piloted in Dover since early August 2010 to ensure questions are asked in simple, straightforward language. After the screening interview, and subsequent to receipt of a claimant’s written claim in the self-completed SEF, a substantive interview will be arranged where the minor is over 12 years of age.”

[147]She then set out the provisions on policy set out in chapter 6 of a document entitled “Processing an Asylum Application of a Child”, including the passages to which I have referred at paragraph 2(4) above, and continued:

“8. As the guidance reflects, experience indicates that it is not in the best interests of a minor to delay obtaining the information needed to bring them into the care system by waiting for a Responsible Adult or legal representative to be available. Such a person will inevitably be a stranger to the child. Those conducting the initial interview are trained in dealing with minors and are aware that the purpose of the interview is simply to obtain bio-data information, check if there is evidence of trafficking and identify whether the minor wishes to claim asylum. There is no place for an adversarial approach in this context and it would not further the purpose of the interview. As the guidance indicates, a minor will be screened if they claim asylum but they will not be asked about the reason for their claim (unless a responsible adult is present).”

[148]The Secretary of State submits that this approach strikes a proper balancing of the interests of ensuring effective control over immigration whilst giving the necessary weight to the interests of the child as a primary consideration. If one looks at the interviews conducted with respect to each of these children (and they are set out in full in the judgment of Mitting J) they do not contradict these principles save that, in FA’s case, he was improperly asked questions about the substance of his asylum claim. AN’s interview lasted only eighteen minutes in all and was directed to certain basic issues such as bio-data information about himself and his family; the route and method of travel to the UK (potentially relevant to Dublin II and possibly trafficking considerations); his reasons for coming to the UK (relevant to the question whether he wished to obtain asylum); whether he had anyone to receive him in the UK; and who paid for his travel (again potentially relevant to trafficking).

[149]I do not understand it to be in issue that in principle this information could properly be obtained from AN at an initial interview; none of the questions was directed to an asylum claim which had not even been made at that time. Similarly, the screening interview of FA was properly conducted save for the questions about his substantive asylum claim. The only issue in each case is whether the UKBA should have sought to obtain that information, apart from the most basic information identifying the child, on a later occasion once the child was in the care of social services. That would have had the advantage of allowing the child to be represented.

[150]Black LJ has accepted the appellants’ submissions on this ground of appeal. She has concluded that the obligation to refer to the social services as soon as is practicable, coupled with a proper consideration of the interests of the child, was not compatible with either the initial interview (in the case of AN) or the screening interview (in the case of FA) taking place when they did. The disadvantages were magnified by the lack of a responsible adult. She also contends that there is no sensible basis for drawing a distinction between the substantive asylum claim and the initial or screening interview; since a representative is required to be present for the substantive hearing, the same principle should apply to any other interview.

[151]I respectfully disagree. In my judgment the UKBA was entitled to conduct the interviews of both AN and FA when they did and in the manner they did save, in the case of FA, with respect to the questions about the substance of the asylum claim. They were not obliged to restrict themselves to seeking only the most basic information before referring the children to social services. Moreover, the distinction between the substantive asylum interview and earlier interviews is reflected in the European Directives. There is in my view no intrinsic unfairness in requiring minors to give certain basic information about themselves without a representative being present. The analogy with PACE, and interviewing a child about a suspected criminal offence, relied on by Black LJ, is not in my view apposite precisely because the children are not at the preliminary interviews being questioned about any asylum claim.

[152]I reach this conclusion that these interviews were lawful and appropriate for a number of reasons. First, the obligation to have regard to the interests of the children as a primary consideration does not mean that it is a paramount consideration. The UKBA is entitled to have regard to its primary function of upholding the integrity of the immigration control system. Ms Pearson has given in my view a perfectly sensible explanation why the minor will be interviewed on these matters before being placed in the hands of the social services, and why experience has taught UKBA that it is not necessarily desirable to wait for the child to be represented before obtaining information on these largely fundamental matters of fact which are within the child’s own knowledge.

[153]In my judgment, it is reasonable for the UKBA to want answers to these basic questions before releasing the child. I do not accept that this approach fails to pay due regard to the interests of the child. Given that the interests of the child have been a focus of attention when forming policy in this area, it seems to me that in order for the court to conclude that the approach of the UKBA at the time of these interviews was unlawful (and I do not understand the policy to have changed in any material way since), the appellants have to say that in balancing its duty to enforce effective immigration control with its obligation to treat the best interests of the child as a principal consideration, UKBA has acted irrationally. I do not accept that it has struck an irrational or improper balance. In my opinion, the approach of the appellants unjustifiably seeks to give the interests of the child paramount consideration.

[154]Second, it is important to note that nowhere in domestic or EU law does it expressly state that the UKBA should ask only the most necessary basic information of a minor before referring him to the relevant social services. If this had been thought to be the only way in which the interests of the child as a principal consideration could be respected, I would have expected it to have been unambiguously spelt out. The appellants submit, in effect, that it is to be inferred or implied from paragraph 3.24 of the Code (read with 5.3) which requires the child to be referred to social services as soon as is practicable. That, it is submitted, is inconsistent with conducting interviews of the kind carried out here.

[155]I am not persuaded by that argument. It must necessarily have been envisaged that some information would have to be obtained from the child before placing him into the care of social services, and indeed the appellants themselves accept that certain basic information must be obtained. The debate is not about whether some interview is necessary but what information can properly be sought at that stage. In my view the information sought under the present policy is of a limited and in most cases a largely uncontroversial nature, and the authorities are justified in my opinion in taking the view that it can properly be sought at the initial stage and before the child is transferred to social services. It is also of relevance that the interviews are conducted by officers trained in dealing with minors.

[156]Third, in my view the court is not best suited to direct the UKBA how to fulfil its statutory obligations and should be extremely cautious before laying down rules which bear directly on UKBA’s operational sphere. The court can and must ensure that the powers conferred on the UKBA are not abused and are exercised fairly. In particular, it must ensure that proper recognition is given to the fact that the best interests of the child as a primary consideration. But I see no justification for concluding that the UKBA has failed to pay due regard to this matter in either formulating or implementing its policies.

[157]Finally, I would add that in my view the appellants’ approach would create real practical difficulties for the interviewers. The appellants accept that there may be circumstances when something more than the very basic bio-data may be sought, in particular where trafficking may be in issue. But it is difficult to know whether it is in issue until the child has been asked relevant questions. Chapter 7 of the instructions on Processing the Application of the Child identifies a range of answers which might indicate the possibility of trafficking, such as where the journey has been organised by someone other than a member of the family, or where the child’s story is similar to that given by other children.

[158]It will not be obvious before interview whether trafficking is likely to be in issue or not. Too rigorous a distinction between matters which can and which cannot lawfully be raised at the initial or screening interview would, in my view, pose considerable practical difficulties to UKBA and would lead to nice and detailed arguments as to whether the scope of the interview did or did not fall within the right side of the legal line.

[159]It follows that save for the unacceptable questions posed to FA relating to the substance of his asylum claim, I do not accept that the questioning of either AN or FA was inappropriate or unlawful. On that premise, there is in my judgment no principle which would dictate that the answers should not be admitted in evidence or deployed in argument in subsequent proceedings, be it the substantial asylum interview or any subsequent appeals. Of course, the fact that the answers were given in the circumstances in which they were may lead the subsequent decision maker to conclude that little weight, if any, should be given to the answers because, for example, they are contested, or the applicant claims to have been confused, or because no representative was present. But whilst such factors may persuade a decision maker in the context of a particular case that the answers should be treated with caution and possibly not be admitted in evidence at all, they ought not to render them inadmissible in all circumstances.

[160]Moreover, even if I am wrong in concluding that the UKBA was entitled to ask more than the basic necessary information, so that the initial interview and screening interview were improperly carried out, the answers to the questions posed in interview would in my view nonetheless be admissible in principle at the substantive asylum interview and subsequent appeals, and should be admitted unless it would be unfair to do so.

[161]It is not generally the position at common law that evidence obtained unlawfully or in breach of relevant procedural rules will automatically be inadmissible. The position in criminal law, for example, is now reflected in section 78 of the Police and Criminal Evidence Act, which broadly reflects the principles which had been developed by the common law:

“evidence will be excluded if, in all the circumstances, including the circumstances in which the evidence was obtained, its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

[162]This is consistent with Court of Appeal authority, specifically concerned with the position of unaccompanied children claiming asylum, which adopts the same principle with respect to information obtained from questioning in breach of relevant procedural rules.

[163]In AA (Afghanistan) v Secretary of State for the Home Department

[2007] EWCA Civ 12

there had been a failure to comply with established Government policy with respect to sending unaccompanied children back to Afghanistan. One of the complaints advanced by counsel for the appellant was that the adjudicator had erred because, in his assessment of the appellant’s general credibility, he had referred to answers given by the appellant in the substantive asylum interview which had not been properly conducted. The interview ought (as now) to have been conducted by specially trained officers and in the presence of a responsible adult. Neither of those conditions was met, as the Secretary of State conceded. In certain respects, therefore, the situation was akin to that facing FA in this appeal. Lord Justice Keene, with whose judgment Lord Justice Waller agreed, noted that it was accepted that the adjudicator had not been made aware that some of the evidence had been obtained in breach of the relevant rules and that accordingly it was:

“impossible to know what finding the adjudicator would have made on credibility, had he either ignored or treated with great caution the interview material.”

[164]That comment plainly envisages that in principle the evidence would be admissible, albeit that it would have to be treated with circumspection. That is confirmed later in his judgment where, after remitting the matter to the Secretary of State to reconsider whether discretionary leave to remain should be granted, Keene LJ made the following observation (para 40):

“…. The Secretary of State will need to take into account the apparent breach of his policy on interviewing minors when he decides what weight (if any) he can properly attach to the appellant’s answers in interview and to some of the adjudicator’s findings of fact.”

[165]Carnwath LJ made observations to like effect (para 51):

“I accept of course that the policy governing interviewing minors is of great importance. If the tribunal becomes aware that an interview has been carried out in breach of those guidelines, that fact should clearly be taken into account when considering its weight, possibly by excluding it altogether. That may not always be the right response, since in some circumstances the claimant may wish himself to rely on it, for example, to show consistency. Failure by the tribunal to take account of the breach may be an error of law justifying the setting aside of the decision but that depends upon the point being taken.”

[166]These judgments envisage that fairness may well require that the evidence is excluded, but not necessarily so. I would, however, accept that where there has been a blatant breach of the principle that the child should not be questioned on the substantive asylum claim without the presence of a representative, a court may not need much persuading to refuse to admit the evidence. But in my view they would still have a discretion and the exclusion would not be automatic. Insofar as Mitting J was saying otherwise, I would respectfully disagree with him. Where, as here, the gist of the alleged illegality is that the relevant questions were posed in an initial or screening interview conducted at the wrong time, different considerations would be likely to apply.

[167]I also agree with the observation of Mitting J below that it is in the child’s interest, and not just the wider public interest, that the asylum claim should be properly determined in a manner which best gets to the truth. It is not necessarily in the child’s best interests for asylum to be granted: asylum may be the child’s objective but where he or she is simply an economic migrant who might even have left his home country in the face of parental opposition or without the parents’ consent, it will generally be in the child’s own interests to be sent back to his family. The notion that it will necessarily be unfair to admit evidence obtained contrary to the rules seems to me to be based on the false premise that the child’s best interests are secured by obtaining asylum and that it would be unjust to have regard to evidence obtained unlawfully which might undermine his claim.

[168]There are likely to be some cases where the evidence, albeit obtained unlawfully, will be potentially highly relevant to the asylum claim. Even then, if it has been obtained in deliberate and cynical breach of procedures a tribunal could properly determine to refuse to admit it. But in other circumstances its automatic exclusion would in my view fail to strike the proper balance between ensuring legitimate immigration control and the child’s best interests – which, as I have said, will not necessarily be in conflict – to exclude it.

[169]Take this case. AN gave evidence initially that he had come to this country to get a job, a reason wholly inconsistent with his asylum claim. He also volunteered the information in interview that his father was alive and yet his evidence in his substantive asylum claim was that his father had died. It seems to me that it would be highly undesirable to deny the decision maker the opportunity of addressing that conflict. It is difficult enough for tribunals confidently to reach safe findings of fact in these asylum cases without excluding from their consideration what might be potentially highly material evidence, in circumstances where the answers are on the face of it unlikely to be explained by the child being confused. Even if there is an error stemming from a false translation, it is difficult to see how a representative would be able to perceive that. Of course, any alleged inconsistencies arising out of the original interview will in fairness have to be put to the asylum seeker so that the child has a proper opportunity to explain them, in the same way as happens where a minor asylum seeker voluntarily provides information in the screening interview which might be used against him. But I do not accept that it is necessarily unfair or unjust to the child for the evidence to be admitted.

[170]I do not, with respect, accept the analysis of Black LJ that the truth is best served by requiring the decision maker to ignore unlawfully obtained information altogether. In any event, it seems to me that UKBA is entitled to take a different view. The logic of Black LJ’s position, as she recognises, is that the courts should refuse to allow in evidence any answers given in interview where there is no responsible adult present, although she accepts that this goes further than the current law would permit. She does, however, suggest that a tribunal in its discretion should only admit the evidence in very exceptional circumstances. I consider that this is too restrictive and that the discretion should not be trammelled in this way. In my view, tribunals should be trusted to ensure that answers given in interviews conducted without representatives present will be carefully considered to ensure that no evidence adverse to the child asylum applicant is unfairly taken into consideration.

[171]Nor do I accept the appellants’ submission, accepted by Black LJ, that the observations of Sedley LJ in R (Refugee Law Centre) v Secretary of State forthe Home Department

[2004] EWCA Civ 1481

para 15 have any material relevance here. In that case the issue was whether the fast track asylum procedures, whereby an asylum claim was dealt with in three days, were necessarily unfair. It was in that context that Sedley LJ commented that it was no answer to an unsatisfactory initial decision that it could be corrected on appeal. That is, in my view, far removed from the issue here, which is simply whether in principle evidence is admissible before the decision maker.

[172]No decision is reached at either the initial interview or the screening interview. The only issue is whether answers volunteered by the child can be later used in evidence. Tribunals often have to deal with difficult questions about the weight to be given to evidence subject to conflicting or contradictory accounts. I see no reason why they should not do that here and I do not accept that Sedley LJ’s comments have any bearing on that question.

[173]In my judgment, therefore, the information given in the interviews is in principle admissible even if, contrary to my view, the interviews ought not to have been conducted when they were. The only exception relates to the answers to the questions relating to the substance of the asylum claim which it is conceded ought not to be admissible because they were obtained in breach of the express obligation not to conduct substantive asylum interviews without the child being represented.

Was the detention unlawful?

[174]As Mitting J noted below, this was very much a subsidiary submission below but it is still in play. Like Mitting J, I have been exercised by the question whether the detention was unlawful notwithstanding my conclusion that the interviews were (save for some of the questioning of FA) lawfully conducted. I do not accept that it was inappropriate for the authorities to allow the appellants a few hours to recuperate and relax before subjecting them to the initial and screening interviews respectively. The immigration officers perceived that to be in the child’s best interests and I see no basis for questioning that judgment. If they were entitled to conduct the interview, they were also justified in waiting a few hours to make sure that the minor would be fit to be interviewed.

[175]However, there is no doubt that with respect to each of these appellants, Kent social services could have been advised what the UKBA was proposing with respect to him shortly after he was first brought to the port offices and his status as a minor was established. Had that occurred, social services would have been in a position to take responsibility for the child immediately after the interview had taken place, and it is possible that they would have sent someone to the port for that purpose. It is of course possible that rather than tying up a member of staff, they would have asked UKBA to call them again once the interviews were completed, in which case any error by UKBA would have had no practical consequences at all.

[176]However, in my view it would have been desirable for social services to have been contacted earlier than they were and I have, not without some doubt, concluded that the detention was unlawful from the conclusion of the interview until Kent social services arranged for the child to be collected. In principle detention contrary to published policies is capable of constituting an abuse of power sufficient to render a detention unlawful: see R (Kambidzi) v Secretary of State for the Home Department

[2011] UKSC 23

;

[2011] 1 WLR 1299

. Whether it would have made any practical difference to the time when the children were finally released by UKBA is not clear. Even if it would, we are talking about a very short period of time when UKBA failed to transfer the child from one agency of the state to another. It was not a case where the child was entitled to walk free. It was a relatively trivial infringement of their rights which would in my view attract only nominal damages. But technically there was a failure to comply with the Code and this in my view renders the detention unlawful.

[177]It may also be the case that the officers did misguidedly believe that there was no point in contacting the social services until the interviews were completed. but even if that was the case, any such misconception would not render an otherwise unlawful detention lawful. It seems to me that the terms of the Code were infringed and that UKBA retained these children longer than they ought legally to have done.

[178]I would, therefore, uphold the appeal on this narrow ground in relation to the question of unlawful detention, but otherwise I would dismiss the appeals.

[179]It must be apparent that all three members of the Court have found some of the issues raised on these appeals to be difficult. The differences between Black LJ and Elias LJ may seem narrow but they are important. I gratefully adopt the formulation of the issues propounded by Elias LJ, viz: i) Were the UKBA officials at the port entitled to conduct the disputed interviews with AN and AF and to ask the range of questions they did before referrals to Kent Social Services (KSS)? ii) If they were not so entitled, were the answers and comments of AN and AF admissible in subsequent interviews and later appeals? iii) Was the detention of AN or FA unlawful by reason of delay in the referrals to KSS?

[180]I agree that the issues are interrelated. (1). Was it permissible to ask the questions?

[181]It is common ground that a modicum of questioning is permissible from the outset. There can be no objection to questioning which is designed to elicit information which is essential for any meaningful booking-in procedure. This includes (uncontroversially) name, date and country of birth, date and time of arrival, gender and apparent physical and mental condition. Such matters are reasonably required for the records of UKBA and may be considered the minimum necessary for facilitating a referral to social services. It seems to me that there can be no objection in principle to questions designed to assist an assessment of whether a particular child may be a victim of trafficking where there are reasonable grounds for suspecting that he might be. There is a need for urgency in such a case in order to enable rapid investigation of suspected traffickers who may be nearby. In the present cases, however, there does not seem to have been such a suspicion.

[182]The evidence submitted on behalf of the UKBA refers to the twin need “to identify if they have been trafficked and to establish if they wish to claim asylum”. It seems to me that that is not a necessary equiparation. The need for urgency which arises in relation to suspected trafficking does not arise in the same way in relation to asylum. The former is driven by an immediate need for criminal investigation. The latter cannot be said to necessitate the same urgency. I am not convinced that, in relation to an unaccompanied minor whose position attracts enhanced protection, the possibility of an asylum application is something that necessitates immediate ascertainment. There will be a legitimate concern for early information which will inform Dublin II considerations but the reasons for insistence upon its immediacy are not obvious and, in any event, that aspect cannot be completed without fingerprinting which, in turn, requires the attendance of an independent adult.

[183]All this leads me to the conclusion that a modicum of questioning of a fit and well minor at the outset and before referral is permissible but that it should be limited to the subjects to which I have referred. Although I would exclude questions about asylum, it may be that the answers to some permissible questions (for example, in relation to suspected trafficking) could have relevance to a later asylum claim. (2). Admissibility / weight

[184]I agree that answers given at the outset do not attract a blanket prohibition on subsequent admissibility and that the issue is one of weight, which will require scrupulous assessment. As the preceding judgments reveal, once an application for asylum has been intimated – as it may be spontaneously – the applicant has the protection of paragraph 6.2 of Processing Asylum Applications from Children. This acknowledgement of the risk of the potential unreliability of answers given at that stage by an asylum seeking minor in the absence of a responsible adult or legal representative is a matter which ought properly to be taken into account when considering what weight, if any, should be accorded to the answers of a minor who has not yet claimed asylum. (3). Unlawful detention

[185]There is a significant difference between the views of Black and Elias LJ on this issue. Whilst they both conclude that there was unlawful detention in these cases, Black LJ identifies its commencement at an earlier stage, namely the completion of the booking-in process, whereas Elias LJ puts it at the conclusion of the subsequent interviews. I respectfully agree with the analysis of Black LJ. When one combines(1) the provisions of the Code of Practice for Keeping Children Safe from Harm; and

(2) the limited permissible scope of an initial interview (as I have held it to be), it is, in my judgment, unlawful to detain a minor for several hours with a view to conducting an initial interview (the permissible parts of which could have eventuated at booking-in) and only embarking upon a referral to social services at or towards the end of the postponed interview. One is bound to ask the question: what would be lost if the referral occurred soon after the completion of booking-in? The answer seems to be: the loss of an unnecessary interview in the course of which the minor may say or omit to say something which might help to undermine the credibility of his asylum claim. Given the forensic shortcomings of such an interview, that seems to me to be a small price to pay in a context where vulnerability and welfare are of specific concern.

Conclusion:

[186]It follows from what I have said that I would allow these appeals to the extent articulated by Black LJ. To the extent that this permits claims for damages for unlawful detention, whilst the periods are longer than those found by Elias LJ, such damages would still be modest and ought not to require judicial assessment.

Cited in 10 later judgments

and 1 more case

CM (EM country guidance; disclosure) Zimbabwe CG 2013