Legal action
Is Home Office guidance on assessing the age of children seeking asylum unlawful?
Published: 30 July 2021
Last updated: 30 July 2021
What countries does this apply to?
Case details
| Protected Characteristic | Age |
|---|---|
| Types of equality claim | Indirect discrimination |
| Court or tribunal | Supreme Court |
| Decision has to be followed in | England, Scotland, Wales |
| Law applies in | England, Scotland, Wales |
| Case state | Concluded |
| Our involvement | Intervention (section 30 of the Equality Act 2006) |
| Outcome | Judgment |
| Areas of life | Asylum seekers and refugees |
| Human Rights law | Article 5: Right to liberty and security |
| International framework | Convention on the Rights of the Child (CRC) |
Case name: R(on the application of BF (Eritrea))(Respondent) v Secretary of State for the Home Department (Appellant)
Since 2014, subject to some very limited exceptions, it has been unlawful to detain unaccompanied asylum-seeking children. The Secretary of State issued guidance for immigration officers setting out how they should approach cases where there is doubt whether an asylum seeker is a child.
The guidance said that if officials think that an asylum seeker’s ‘physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no credible evidence exists to the contrary’ the person is to be treated as an adult and their application processed under adult procedures.
This can lead to them being detained in an adult immigration removal centre.
When BF arrived in the UK in 2014 wanting to claim asylum, he said he was 16. Immigration officers assessed him and decided that he was over 18, so initially he was held in immigration detention. A detailed age assessment by social workers later concluded he was a child.
BF brought a claim for judicial review challenging the guidance. The Upper Tribunal dismissed his claim but the Court of Appeal ruled that the policy was unlawful because it did not make officials aware of the wide margin of error - as much as 5 years either way according to evidence from the Royal College of Paediatrics and Child Health - in age assessment of young people. Nor did it advise officials on how they should take account of the margin of error in their decision-making.
Following the Court of Appeal judgement, the Secretary of State amended the guidance so that officials should accept a young asylum seeker’s claim to be a child unless ‘their physical appearance and demeanour very strongly suggests they are 25 years of age or over’. The Secretary of State made clear that the amended guidance was interim, pending the outcome of this appeal to the Supreme Court.
Legal issue
The Supreme Court was asked to decide whether this guidance is lawful. Specifically: did it create a real risk of a more than minimal number of children being held in immigration detention, when they should not be, and could that risk be avoided if the policy were better formulated?
Why we were involved
We are concerned that the practice of visually assessing the age of young people seeking asylum can lead to children being unlawfully detained with adults, unless there is clear guidance to take account of the margin of error inherent in visual assessments.
In our report to the UN Committee on the Rights of the Child (20 November 2020), we recommended that the UK Government should amend the guidance to introduce a presumption that, where the age of a young person is uncertain, they must be treated as a child, including not being detained alongside adults, until their age has been assessed objectively by an independent expert.
What we did
We used our power to intervene in this case, which is when we provide specialist advice or evidence to the court. We previously intervened in the lower courts and intervened again in the Supreme Court. We made submissions about how UK and international human rights law apply to the issues in the case.
What happened
The Supreme Court upheld the Secretary of State’s appeal and ruled that the original guidance on age assessment is lawful.
The Court found that the guidance sets out ‘the relatively generous degree to which the benefit of the doubt should be allowed to an immigrant who claims to be a child’.
The Court also held that except in specific circumstances there is no obligation on ministers to issue guidance that eliminates uncertainty about how legal rules should be applied in practice. Any such obligation would conflict with the separation of powers by requiring ministers to ‘re-state’ rules set out in primary legislation.
Who will benefit
Although this case was unsuccessful, it raised important issues. We continue to have concerns about the impact of the use of visual age assessment on unaccompanied migrant children.
Date of hearing
Date concluded
Page updates
Published:
30 July 2021
Last updated:
30 July 2021
