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Home Office put eight-month-old baby with British citizenship in immigration detention centre
Credit: Chayene Rafaela on Unsplash

Home Office put eight-month-old baby with British citizenship in immigration detention centre

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 [2019] 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 [1997] 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.

Is it really on you to prove you are British?

Section 3(8) of the Immigration Act 1971 says:

‘When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is’.

It may be surprising that a baby can be detained on the basis that he has failed to prove he is British (how could he, after all?) but that is how UK immigration law works. This makes sense when people are entering the UK: they need to prove they have a right to enter, for example with a British passport. If they cannot prove it, they might have to be detained until the immigration authorities can establish the truth.

What makes this case so shocking is that the mother and baby were not detained on an attempted entry to the UK but rather from within the UK for the purpose of removing them and the immigration authorities were aware the child was said to be British. There was no pressing need to do that and the family could easily have been given more time. While the law was found to be on the side of the Home Office here, the behaviour of officials can still be said to be extremely reckless.

 – Colin Yeo

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.

Conor James McKinney

CJ is Free Movement's deputy editor.

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