The High Court has allowed a Home Office appeal arguing that it is not necessarily unlawful to put British citizens in immigration detention. The judgment in Home Office v TR & Anor  EWHC 49 (QB) concerned an eight-month-old baby detained with his mother for almost a fortnight despite lawyers for the family telling officials that the child was British.
It appears that the child JA’s British citizenship arose through his father, who was not on the birth certificate. But the Immigration Advisory Service had told immigration officials that JA was British, enclosing a letter from the father and an application for amendment of the birth cert to include the father. The mother, TR, also told officials that this process was underway. She and her baby were still detained. The Central London County Court awarded the mother £20,000 and the child £5,000, the latter on the basis that “as a British citizen, there had been no power to detain him”.
The Home Office argued on appeal that although “JA had been born a British citizen who could not lawfully be removed from the UK… the bar on the removal of a British citizen is not the same thing as a bar on detention”. It said that the baby’s British citizenship had not been established at the time and so the judge should have considered “whether there were reasonable grounds for detention in light of all the available information at the time”.
Mrs Justice Farbey agreed. Applying the case of R v Secretary of State for the Home Department, Ex parte Obi  1 WLR 1498, the judge said that “if a person’s citizenship is in question, the burden lies on him to prove that he is British in order to avoid the risk of loss of liberty”. She accepted that the County Court judge
failed to ask whether there were reasonable grounds for suspecting that JA could be removed. He ought to have done so. The question fell to be answered by reference to the evidence available to the Home Office at the material time, which did not include the requisite proof of paternity.
The High Court accepted two other grounds of appeal from the government as well. But it also allowed a cross-appeal. Amanda Weston QC, representing the family, had submitted that
if there was no power in law to remove JA as a British citizen and if TR was at all material times breastfeeding him, then there was at no point any reasonable prospect of removing TR. It followed that the whole of her detention was unlawful and not simply the period determined by the Judge.
The Home Office accepted that the County Court’s reasons for dismissing this argument were inadequate. The whole case will now return to the lower court for a fresh decision.