Unlawful detention and family separation

• The Queen on the application of AJS v Secretary Of State For The Home Department, CO/88/2018

This case involved an Indian father, AJS, who was separated from his three-year-old daughter while he was unlawfully detained by the Home Office under immigration powers. The child had been placed in local authority care and the Family Court had ordered that it was in her best interests to be reunited with her father, but if he was not released within a certain limited timeframe she would have to be placed for adoption.

Despite the Family Court order, the Home Office maintained a decision to detain AJS under immigration powers, transferring him to a detention centre so far away that any contact with his daughter was impossible and refusing his applications for release on bail. When AJS was finally released after three months, the Home Office then provided a bail address which was many miles away from his daughter and imposed a daily curfew which rendered the Court-ordered reunification plans impossible.

Following judicial review proceedings, in an order approved by the High Court, the Home Office accepted that AJS had been unlawfully detained, breaching, among other things, existing policy on the detention of sole carers where the consequence is that the child will be taken into care, and the need to take the best interests of the child into account. It agreed to pay the claimants £50,000 in damages.

Previous case law has clarified that "neither the existence of a care order, nor the existence of a residence order, nor even the fact that a child is a ward of court, can limit or confine the exercise by the Secretary of State of his powers in relation to a child who is subject to immigration control. (R (Anton) v SSHD [2004] EWHC 2730) but that does not mean that family orders are not relevant to immigration proceedings because such orders and/or a further evidence about a child's care and relationship with their parent(s) will be important in an assessment of the best interests of the child. This case highlighted the clear need for the Home Office to adequately consider the impact of immigration decisions on those children affected, and its safeguarding duties under section 55 of the Borders, Citizenship and Immigration Act 2009.

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The Migrant Children's Project provides legal advice and information on all issues facing children subject to immigration control. Please visit www.childrenslegalcentre.com