Immigration detention of an eight-month-old British national not unlawful

The Home Office v 1) TR 2) JA [2019] EWHC 49 (QB)

This case involved the Home Office’s detention of a Nigerian mother and her eight-month-old British national son, pending removal to Nigeria. The child’s father was a British national, albeit that his details were not mentioned on the child’s birth certificate. The Home Office proceeded on the assumption that the child was a Nigerian national and detained him, along with his mother, pending removal to Nigeria. A claim for judicial review was issued and the detainees released. The child’s birth certificate was amended subsequent to his release from detention, to include his father’s details, thereby proving his British nationality in accordance with the British Nationality (Proof of Paternity) Regulations 2006.

Mother and son claimed false imprisonment. The Central London County Court upheld the claims holding that the claim was one of strict liability and that the Home Office had no lawful power to detain a British national.

In allowing the Home Office’s appeal, Mrs Justice Farbey DBE held that section 3(8) of the Immigration Act 1971 placed a burden on the son to prove his British nationality (R v Secretary of State for the Home Department, Ex parte Obi [1997] 1 WLR 1498 applied). It followed that whilst the Home Office accepted that the son could not be lawfully removed from the United Kingdom because at all times he was a British national, this did not prevent his lawful detention (pending proof of paternity).

The Home Office also succeeded on its further grounds of appeal relating to inadequacy of reasons concerning breach of the Hardial Singh principles and the award of £20,000 damages to the mother.

The matter was remitted for a fresh hearing before a new judge.

David Mitchell acted for the Home Office, instructed by the Government Legal Department.