Asylum children detention ruled illegal

Forced detention of the children of two failed asylum seeker mothers at Yarl's Wood immigration centre was ruled unlawful by the High Court today.

The decision, which opens the way for the affected families to claim damages, comes almost a month after the Government announced that it was ending detention of children at the centre in general.

The two single mothers said a lack of safeguards at Yarl's Wood in Bedfordshire, the UK's main removal centre for women and minors, led to their children suffering distress and trauma.

Reetha Suppiah, 37, a Malaysian nurse, and Sakinat Bello, 25, a Nigerian national, claimed the Government policy of detaining minors was so flawed that it could not be operated lawfully.

Mr Justice Wyn Williams, sitting at the High Court in London, ruled the policy itself was not unlawful, but had been applied in an unlawful way.

He ruled: "The claimants were detained unlawfully from the time they were taken into custody until their release."

The judge said they suffered human rights breaches and were entitled to claim damages.

There was "a significant body of evidence" which demonstrated that employers of the UK Border Agency (UKBA) "have failed to apply that policy with the rigour it deserves".

The judge said: "The cases of the two families involved in this litigation provide good examples of the failure by UKBA to apply important aspects of the policy both when the decisions were taken to detain each family and when decisions were taken to maintain detention after removal directions had been cancelled."

The mothers' application for judicial review was heard last October.

Between then and today's judgment, the Government stated that detention of the children of failed asylum seekers would end by May this year, and the family section at Yarl's Wood would be closed immediately.

The move, announced on December 16 by Deputy Prime Minister Nick Clegg, was part of the post-election coalition agreement.

A press release said parents awaiting forced deportation would still be held in secure houses, but their children would be assigned minders so they could move around freely.

The Home Office indicated today that no children under 18 are in detention.

Both mothers in today's case were failed asylum seekers arrested by UK Border Agency officers in dawn raids on their homes last February.

They were taken to Yarl's Wood for removal back to their country of origin on the basis that they had no right to remain in the UK.

Ms Suppiah and her two boys, aged one and 11, were detained for 17 days, whilst Ms Bello and her two-year-old daughter were held for 12 days before being released and allowed back into the community pending their legal challenges.

Rabinder Singh QC, representing the families, said the evidence before the court - largely uncontested - revealed the harmful impact of detention on both mothers and children.

Ms Suppiah's eldest child was particularly badly affected and now lived "in continuous fear of re-arrest".

Mr Singh said there was "strong and consistent evidence" to support the claim that "serious harm is routinely caused to detained children", and the immigration detention system was afflicted by "fundamental structural problems".

The welfare needs of the families were not properly taken into account or even assessed before the decision to detain.

Mr Singh said the coalition Government had unambiguously committed itself to ending the practice, but it was still continuing and the courts must declare the practice unlawful.

Lawyers for Home Secretary Theresa May argued that, although there were cases where its implementation and paper work was imperfect, the policy itself was "workable, clear and lawful".

Family detention was used "as a last resort" to remove failed asylum seekers from the UK, and children were only held in detention as long as was necessary to achieve that result, and regard was had to the need to promote the welfare of children.

Liberty, with Bail for Immigration Detainees, intervened in the case on the side of the immigrant families.

Phil Shiner of public Interest Lawyers (PIL), who acted for the mothers, said: "These women have courageously fought on behalf of all those who have suffered unnecessary and damaging detention due to the 'tick-box' manner in which UKBA has been allowed, until now, to lock families up.

"We hope the Home Office will learn difficult lessons from the inadequacies exposed in this case, and that the coalition will now just get on with it, and end child detention without further procrastination."

PIL said the judge's ruling made it clear that children could only be detained in "exceptional" circumstances.

UKBA officers had loaded Reetha, Sakinat and their children into vans with meshed windows and driven them to Yarl's Wood "in a state of confusion and distress".

Both families had been reporting regularly to the immigration authorities prior to their arrest.

PIL said in a statement: "Upon arrival at Yarl's Wood, all of the children became sick, suffering from diarrhoea and vomiting.

"It appears that the welfare needs of the families were not properly taken into account or even assessed prior to the decision to detain, and the detention experience has had a profound effect upon them.

"Reetha's eldest child was particularly badly affected and recalls seeing 'policemen everywhere' in Yarl's Wood. Since his release, he has lived in continuous fear of re-arrest.

"The judge considered that not only were the decisions to detain these families unlawful, but the failures to release them at an earlier stage also breached their human rights."

Emma Norton, Liberty's legal officer, said: "The UK Border Agency failed these families - prison is no place for a child.

"The court has acknowledged how detention damages children. Surely the Government can't run away from its promise to end this shameful practice."

Ms Suppiah said she sought asylum in the UK in January 2008 after her family in Malaysia turned on her because she had avoided an arranged marriage and married someone of her choice.

She said she and her husband had suffered beatings from her brothers. Her husband had gone into hiding and she had fled the country at his behest.

An immigration judge held that she was unreliable and had "fabricated" her account of ill treatment in Malaysia, although a consultant psychiatrist who produced an expert report for the High Court had described her as appearing "to be an honest woman who was clearly distressed", her QC, Rabinder Singh, told the High Court.

Her appeal to the Asylum and Immigration Tribunal in May 2009 was unsuccessful.

In January this year, two UKBA officers visited the family home to conduct what was called "a pastoral visit".

Ms Suppiah was not told that detention was imminent, and the officers did not mention matters such as the needs of the children, including schooling or health.

A full copy of a family welfare form - central to the family detention policy - was not disclosed until July. It was, in most material respects, not completed, said Mr Singh.

On February 7, her home was raided at 7am. She experienced terror as she and her family were removed approximately 30 minutes later and taken into detention, with their belongings piled into bags.

Detention had left Ms Suppiah "distressed and struggling emotionally", with regular thoughts of suicide, said Mr Singh.

Her son, Danahar, now 12, who suffered nightmares at Yarl's Wood, had found detention particularly distressing.

He had "constantly felt scared" and was unable to go to school for some months after his release.

His mother said he had become withdrawn and struggled to concentrate.

His GP had referred him to the child and adolescent mental health service which diagnosed "a severe negative reaction to traumatic experiences".

Mr Singh said Ms Bello was married to a Nigerian national and had an undergraduate degree in economics.

She had sought asylum on the basis that she feared her unborn daughter would be offered as a sacrifice by others, including her husband, according to "traditional sacrificial and ritual beliefs" in her homeland.

She arrived in the UK in August 2007, and her daughter, Mornike, known as Ewa, was born the following day.

Her application for asylum was refused and she was told she should have sought help from the police in her home country.

She and her daughter were taken into detention by UKBA officers who raided their home at 6am on February 10, forcing entry and damaging a bedroom door, stated Mr Singh.

"Mornike was made to stand with her arms held out to be physically searched."

At Yarl's Wood Mornike became very anxious and distressed and stopped eating.

She also developed an adverse reaction to anti-malarial medication given to her in preparation for her removal, said Mr Singh.

Soon after she was declared unfit to fly, but she and her mother were still not released for several days.