UK Court of Appeal finds Home Office guidelines on determining whether an asylum seeker is a minor unlawful

The UK Court of Appeal has ruled that the Home Office guidelines on determining whether an asylum seeker is a minor are unlawful.

The appellant, referred to as BF, an Eritrean national, arrived in the UK in March 2014 and presented himself to police as a minor seeking asylum. He gave his date of birth as 15 February 1998, which indicated he was 16 at the time. He was observed by an assistant immigration officer and a chief immigration officer, both of whom believed that he was substantially over 18. The chief immigration officer described his physical appearance as being that of "an adult in his mid-twenties".

BF was held in an immigration detention centre until 11 September 2014, and again from 7 January to 31 March 2015. Formal age assessments were conducted by Newport City Council in February and March 2015. In both assessments he was found to be an adult, however, a further assessment in September 2015, carried out by two independent social workers found his date of birth to be as claimed by him on arrival. That date of birth and his corresponding age were then accepted by the Council.

The determination of whether a solo asylum seeker is a child or an adult is of particular significance, given amendments to Schedule 2 to of the Immigration Act 1971, which makes the detention of minor asylum seekers unlawful. In addition, children may be owed obligations under the Children Act 1989 and protected from return to other nations where they have previously claimed asylum under the Dublin III Regulation.

The Secretary of State published guidelines for immigration officers on how to deal with asylum seekers who claim to be minors.  These guidelines outline that an asylum seeker’s claim to be aged under 18 should be accepted unless the case satisfied one of four specified criteria. The decision to detain BF was based on criterion C which states that, "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 appellant, BF, submitted that this criterion was unlawful because any assessment of age based solely on physical appearance was fundamentally unreliable. In the judgement, Lord Justices Underhill, Simon and Baker outlined that “the evidence shows that age assessment is an inexact science and that the margin of error can sometimes be as much as five years either side”.

Underhill LJ and Baker LJ allowed the appeal and found the guidelines unlawful, holding that the word ‘significantly’ was so vague as to give rise to a real risk that a young person under 18 may be wrongly identified as an adult.

In advance of the appeal, the Home Office revised its guidance, which now requires that two members of staff “have separately assessed that the individual is an adult” on the basis of their physical appearance and demeanour. However, Underhill LJ ruled that these amendments ‘do not address the specific deficiency’ in the earlier guidance which was the large margin of error which such decisions will necessarily involve.

Click here for the decision in BF (Eritrea) v Secretary of State for the Home Department.



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