UK: Court of Appeal finds age assessment policy of the Home Office unlawful

Thursday, May 23, 2019

On 23 May 2019, the Court of Appeal of the Upper Tribunal (Immigration and Asylum Chamber) released a split decision stating that the Home Office policy on age assessments is unlawful in the case of B.F. v. Secretary of State for the Home Department. 

The applicant, an Eritrean national, sought asylum in the UK in 2014 stating he was 16 years old. When seen to by immigration officers, they believed that he was substantially over 18 due to his physical appearance. He was then held in detention pending transfer to Italy under the Dublin III Regulation 604/2013. Two formal age assessments found the applicant to be an adult and a third assessment found the applicant to be a minor and the birth date he had submitted was formally accepted.

Lord Justice Underhill, with reference to recent case law, recognised that the detention of a person who was eventually determined by a court to be a child irrespective of whether it was reasonably believed at the time of detention they were an adult is prohibited under paragraph 18B of Schedule 2 to the Immigration Act 1971. Underhill LJ examined the relevant guidance documents issued by the Home Office on age assessments. The first document, the Enforcement Instructions and Guidance ("the EIG"), states in paragraph that the provided age of an asylum applicant should be accepted unless in situations of one of four given criteria. The relevant criterion in the instant case is Criterion C, which states "their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary”. The second guidance document examined was ‘Assessing Age

The Lord Justice considered whether the terms of the policy themselves create a risk which could be avoided if they were better formulated. He recognised the recent changes to policy documents but stated that the phrase “significantly over 18” is imprecise and allowed for a wide margin of error. He took note of the statistical evidence presented by the applicant to show the numerous cases where an initial assessment that a young person is an adult was subsequently found to be “wrong”. He held that anyone who claims to be a child must be given the benefit of the doubt.

Underhill LJ further found that the guidance given in criterion C under paragraph of the EIG, both as it appears there and as reproduced in 'Assessing Age', to be unlawful in the current and the previous versions of those documents. He stated that the documents did not recognise how unreliable assessing age on the basis of appearance and demeanour is, and how wide of a margin of error is required.

The dissenting judge, Simon LJ, agreed with Underhill LJ insofar as Criterion C created a risk of more than a minimal number of children being detained. However, he found the recently updated policy provided sufficient guidance on assessing age. The third judge, Baker LJ, agreed with Underhill LJ and held that the current policy could prove an infringement of rights under both ECHR and the EU Charter. He also referenced the CJEU judgment in Al Chodor (C-528/15) on the need for strict safeguards in the detention of applicants. 

The Home Office has applied for permission to appeal.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



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Individual assessment