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Age of the asylum seeker

15 July 19

Immigration briefing: the Court of Appeal has declared the Home Office’s policy on assessing the age of unaccompanied asylum-seeking children unlawful

by Darren Cox

In BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872, the Court of Appeal held, by majority, that the Home Office’s age assessment guidance, as contained in the instruction documen Assessing Age and the Enforcement Instructions and Guidance, is unlawful. 

The court specifically considered the guidance insofar as it relates to “initial age assessments” by Home Office immigration officers and the circumstances in which those claiming to be minors may be detained. Lord Justice Underhill, delivering the leading judgment, was at pains to point out the importance of allowing a wide margin of error in age assessment cases, given the “wholly different treatment” which unaccompanied asylum-seeking children (UASCs) will receive compared with adult asylum seekers.

In BF, the appellant had been detained on the basis of an initial age assessment, before being assessed as the age he claimed on arrival by Newport County Council.

Merton compliance

By way of background, initial age assessments are carried out by immigration officers when an asylum seeker who claims to be a minor arrives in the United Kingdom. This enables the Home Office to determine how a case will be dealt with and, importantly, whether immigration detention is possible for that individual. 

If those officers believe the asylum seeker to be “significantly over 18”, paperwork will be issued to this effect. If not, the asylum seeker will be referred to the relevant local authority who will assume care on the basis that the asylum seeker is a minor. Only when the local authority has significant doubt regarding status as a minor, will a full age assessment be conducted.

When the authority undertakes to conduct a full age assessment, this must be done in a Merton-compliant manner (i.e. not conducted on the basis of physical appearance/demeanour alone).  

The Home Office policy states: “You must treat the claimant as an adult if their physical appearance and demeanour very strongly suggests that they are significantly over 18 years of age. You must give careful consideration when assessing whether a claimant falls into this category. Where they do, they will be considered under the adult processes and could, therefore, become liable for detention.”

Underhill LJ accepted that an initial age assessment conducted by an immigration officer was very unlikely to meet the Merton guidelines, given that such an assessment could only be conducted on the basis of “physical appearance/demeanour”. This was not the point in issue. However, he further noted that this had the effect of rendering initial age assessments more unreliable than those conducted by a local authority. Hence, a wide margin of error ought to be applied and the UASC given the “benefit of the doubt”.

The court accepted that the words “significantly over”, contained in the Home Office policy documents, gave some effect to the “benefit of the doubt” principle. However, it further noted that the word “significantly” was open to interpretation, and its meaning in the present context could not be clarified solely on the basis of “printing it in bold or underlining it”. This imprecision could be clarified by explicitly stating within the policy document what the potential margin of error was; the court had heard evidence indicating that it could be as much as five to seven years.

Continuing risk

The policy documents’ “failure to convey just how doubtful an assessment based on physical appearance and demeanour alone is, and the width of the margin of error that is consequently required”, was what rendered both unlawful. Underhill LJ also declared the updated versions of the guidance (revised post-tribunal decision but pre-Court of Appeal hearing) to be unlawful. While accepting that the updating had made commendable changes, the deficiency which Underhill LJ found in the previous versions still existed and the risk of children being unlawfully detained as adults was significantly greater than it otherwise would be. Simon LJ, dissenting, considered that the updated versions reduced the risk of widespread wrongful decision-making.

While Underhill LJ explicitly stated it not to be the court’s role to outline the age which should be taken as the outer limit for the margin of error, some guidance can be taken from the judgment. He indicated that cases where age is disputed ought to be “obvious”, the age the claimed minor provides being “obviously false”. He also drew equivalence with a “challenge 25 policy” as applied to young people when attempting to buy alcohol. What can be expected from this judgment, if the Secretary of State does not seek to appeal, is further revised Home Office policy in this area. 

Darren Cox, trainee solicitor, Latta & Co

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