Screening of vulnerability
There is no specific mechanism to identify adult asylum seekers who need specific procedural guarantees. The screening interview process is inadequate in identifying such vulnerabilities due to a lack of training and guidance for staff.[1] The standard questions include only basic questions about health, such as whether the person has any medical conditions or medication that they are or should be taking.
The concern remains regarding the use of detention, albeit not in an accelerated procedure, and the lack of safeguards. The Adults at Risk policy was amended in May 2021 to bring victims of modern slavery into the remit of immigration detention policy.
The guidance was further amended in November 2021[2] to include the new Competent Authority – the Immigration Enforcement Competent Authority. The creation of a second Competent Authority was criticised by a group of NGOs[3] and concerns raised by the Independent Anti-Slavery Commissioner.[4] In the first nine months of 2023, only 32% of cases decided by the Immigration Enforcement Competent Authority were confirmed as victims of trafficking, as opposed to over 79% of cases considered by the Single Competent Authority.[5]
Age assessment of unaccompanied children
The procedure for identifying unaccompanied children is governed by guidance and case law. At the screening stage, where a person appears to an Immigration Officer or the Home Office caseworker to be under 18, policy guidance is that they are to be treated as a child. Details of this process are set out at Registration of the asylum application: Registration of unaccompanied children.
In case of doubt, the person should be treated as though they are under 18 until there is sufficient evidence to the contrary.[6] Where their appearance strongly suggests to the officer that they are significantly over 18, the asylum seeker is treated as an adult. In this case, an age assessment can be triggered by the young person or any third party referring to the local authority for an age assessment. However, the result of immediate treatment as an adult while this process is ongoing means that people who are in fact under 18 will be treated as adult in the asylum and support processes.
The guidance has been amended several times in recent years to reflect various judicial challenges, including to the practice of the social work age assessments at the Kent Intake Unit on the grounds that the procedural safeguards required of social work assessments applied equally to the Home Office employed social workers.[7] This followed a series of challenges to the interpretation of the ‘significantly over 18’ policy, ultimately in favour of the Home Office, retaining the right to make those decisions at the border. In addition to the criticism by the Refugee Council, a report from the Independent Chief Inspector of Borders and Immigration drew attention to the practice of making these initial decisions, including the lack of interpreters used.[8] Charities drew attention to the risks of this policy resulting in children being sent to Rwanda under the MEPD agreement, mistakenly judged to be adult.[9]
If the Home Office has referred to a local authority because they felt there was doubt about the claimed age, the social worker responsible for an assessment must assure the Home Office that they have considered the age and this would usually be communicated to a child through an agreed template.[10] A stand-alone assessment is not necessary but the Home Office must be satisfied that the areas listed on the template have been considered by the social worker. The Home Office must also be satisfied that any assessment complies with case law – often referred to as ‘Merton compliant’ as Merton was the first piece of case law dealing with the lawful procedure for age assessments. It would then be usual for the Home Office to adopt the age decided by the social worker but more detail is given in guidance.[11]
Social workers conducting age assessments must comply with all case law which includes the need to be registered social workers, trained in conducting age assessments, adhere to correct procedures including taking into account all relevant information. Assessments must be conducted in the presence of an ‘appropriate adult’ and a written record made. Guidance issued by the Association of Directors of Children’s Services (ADCS) in October 2015 gives more detail about lawful procedure and good practice.[12]
As of 10 January 2024, the use of scientific tests in the age assessment process has become law, this provides for the use of x-rays and magnetic resonance imaging.[13]
It remains the case that judicial review is the sole remedy to resolve a complaint that the age assessment was conducted unlawfully or failed to reach the correct conclusion.[14] The Nationality and Borders Act 2022 contains provisions for these decisions to be appealed instead, but this has not yet been brought into force.[15] The quality of age assessments has been heavily criticised for several years.[16] It is not easy to determine whether or not practice is improving although judicial reviews still take place and result in some social work decisions being overturned.[17] Many such decisions are not reported and many do not have a bearing on other cases, as they are finding of fact cases.
In Scotland an unaccompanied asylum seeking child will be appointed an independent guardian to support them through the asylum process.[18] A similar system is available in Northern Ireland where the child has or is suspected to have been trafficked and for migrant children and young people arriving in Northern Ireland who are separated from an adult who has parental responsibility for them.[19] This is not available in England and Wales.
Greater Manchester Immigration Aid Unit assisted some young people affected by age assessments to issue guidance to social workers undertaking the process and young people affected.[20]
The government in Wales has published its own age assessment guidance.[21] In Scotland, guidance is published by the Scottish government on behalf of a multi-agency collaboration.[22]
A tribunal is also entitled to decide a person’s age as a question of fact in the context of an asylum claim, where age is relevant to the claim, for instance because it has a bearing on other findings such as the credibility of the asylum seeker. A Supreme Court decision held that a finding of fact from the court on age will also be binding on the local authority.[23] This is important because previously a young person could be in the position where the tribunal, and thus the Home Office, accepted that they were under 18, but the local authority did not. This judicial review power transferred to the Upper Tribunal.[24]
Statistics are available for age assessments ordered by the Home Office, which do not include age assessments ordered by local authorities. In 2022 there were 2,999 of these and in 2023 to the end of September there were 1,614.[25] In 2022 the initial decisions (including some from the previous year) from local authorities (1,693) were that 1,042 were children and 651 adults. In 2023 there were 1,672 decisions that the applicant was a child and 887 that they were an adult. Some of these decisions will be subject to challenge and no information is given on the final resolution of these.
The Nationality and Borders Act 2022 is to reform the system, in changes not yet fully implemented. The definition of an age disputed applicant is now in legislation and includes anyone that a public body such as the Home Office or local authority cannot be sure of their age. This definition is in force; the remainder of the changes under the NABA have yet to be enacted but will allow scientific methods to be used in an age assessment, introduces a National Age Assessment Board, part of the Home Office, to conduct age assessments that will be binding on local authorities, and an appeal mechanism to replace the Judicial Review currently in the process.
UASC leave
Unaccompanied children seeking asylum whose claims are refused are very rarely returned to their country of origin unless they are believed to be over 18. It is standard practice to grant periods of limited leave. This leave is referred to as ‘UASC leave’ – this is granted for 30 months or until the age of 17.5, whichever is shorter.[26] Leave can be renewed up to age 17.5, but if a further application is made at this stage, then there must be an active review in which their need for protection is considered again, and if this is turned down they may be faced with removal.
Discretionary leave
Where asylum claims fail, sometimes a family is given discretionary leave on the basis of Article 8 ECHR. The High Court has held that the practice of giving children this limited leave (3 years was the normal policy at the time of the case) conflicts with the duty in Section 55 of the Borders Citizenship and Immigration Act 2009 to have regard to the welfare of children.[27] This does not have a direct impact on the normal practice in the case of unaccompanied children, which is to grant leave until they are 17.5 years, but is an important statement of the impact on children of insecurity of status.
Two new forms of leave were introduced in 2018 relating solely to specific groups of unaccompanied children transferred to the UK from elsewhere in Europe. Those children transferred under section 67 (Dubs’ amendment)[28] who did not qualify for leave as a refugee or subsidiary protection were granted ‘section 67 leave’,[29] initially for five years. A change to the Immigration Rules was made in October 2019 so that these children were granted section 67 leave automatically although they are able to apply for asylum in the usual way.[30] The guidance associated with this change was updated in February 2020. It is described as non-protection based leave but envisaged that a beneficiary will be entitled to settlement after five years. All of the children the government agreed to transfer arrived in the UK by the end of 2020.
Children transferred to the UK from Calais to join family members under the Dublin III Regulation, if the transfer took place between 17 October 2016 and 13 July 2017, have similarly been provided with non-protection-based leave if they did not qualify for leave as a refugee or for subsidiary protection. Beneficiaries will be entitled to apply for settlement after ten years.[31] Most of the guidance relating to unaccompanied children’s claims was revised in December 2020 to reflect the change in relationship between the UK and EU as the transition period ended.[32] References to EU law, including processes relating to Eurodac and Dublin III were removed but no other material changes made.
Policy allows for children’s claims to be certified so it is possible that a child’s appeal is non-suspensive; however, the general policy applies regarding removal of children, so that a certified claim will only result in a non-suspensive appeal if adequate reception arrangements are in place in the child’s country of origin.[33]
[1] At e.g. paragraph 100, https://bit.ly/3I8JjOl.
[2] Home Office, Adults at Risk; the detention of potential or confirmed victims of modern slavery, 2021 https://bit.ly/33BbsNp.
[3] Statement from The Detention Taskforce: https://bit.ly/42QoH79.
[4] Correspondence to the Home Secretary from the Independent Anti-Slavery Commissioner https://bit.ly/3qMEaE0.
[5] Home Office statistics, available at: https://bit.ly/3SQtErX.
[6] Home Office, Processing children’s asylum claims, 31 December 2020, available at: http://bit.ly/2iO8XKe.
[7] MA & Anor, R (On the Application Of) v Coventry City Council & Anor [2022] EWHC 98 (Admin) (19 January 2022): https://bit.ly/3FFLwxf.
[8] ICIBI, An inspection of the initial processing of migrants arriving via small boats at Tug Haven and Western Jet Foil, December 2021 – January 2022, July 2022, available at: https://bit.ly/3goXVz7.
[9] Refugee and Migrant Children’s Consortium, Briefing on government plans to send people seeking asylum to Rwanda, June 2022, available at: https://bit.ly/3GFfmG5.
[10] ADCS, Age assessment guidance and information sharing guidance, available at: http://bit.ly/2kpC77s.
[11] Home Office and ADCS, Age assessment: Joint working guidance, June 2015, available at: http://bit.ly/2k7FIHt.
[12] ADCS, Age assessment guidance, October 2015, available at: http://bit.ly/1MUduDi.
[13] The Immigration (Age Assessment) Regulations 2024, available at: https://bit.ly/48umOxY.
[14] Supreme Court, R (on the application of A) v London Borough of Croydon and R (on the application of M) v London Borough of Lambeth [2009] UKSC 8, 26 November 2009, available at: https://bit.ly/3OV2wqx.
[15] Section 54 Nationality and Borders Act 2022, available at: https://bit.ly/3IeDCyg.
[16] Peter Young, Wrongly Classifying Child Asylum-Seekers As Adults Has Cost UK Millions Of Pounds, 18 January 2017, available at: http://bzfd.it/2jcSct3; Refugee Council, Forced Adulthood: the Home Office’s incorrect determination of age and how this puts child asylum seekers at risk, January 2024, available at: https://bit.ly/3uI9HLR.
[17] Peter Yeung, ‘Wrongly Classifying Child Asylum-Seekers as Adults Has Cost UK Millions of Pounds’, 18 January 2017, available at: http://bzfd.it/2jcSct3.
[18] Scottish government, ‘Refugees and asylum seekers’, accessed 24 March 2024, available at: https://bit.ly/4bMHVOT.
[19] Department of Health, IGS Guidance – Section 21 of Modern Trafficking and Exploitation Act 2015, 16 August 2023, available at: https://tinyurl.com/2d23f93f.
[20] Age Assessments, GMAIU 2020, available at: https://bit.ly/36h1Wxb.
[21] Welsh government, Age assessment toolkit, available at: https://bit.ly/3txMsjg.
[22] Scottish government, ‘Age assessment: practice guidance’, 22 March 2018, available at: https://bit.ly/3fHJ9PL.
[23] Supreme Court, R (on the application of A) v London Borough of Croydon and R (on the application of M) v London Borough of Lambeth [2009] UKSC 8, 26 November 2009, available at: https://bit.ly/3OV2wqx.
[24] First Tier Tribunal and Upper Tribunal (Chambers) Order 2010, section 11, available at: https://bit.ly/3T8BmPw.
[25] Home Office, Immigration system statistics data tables, Age disputes detailed datasets, year ending September 2023, table Asy_D05, 29 February 2024, available at: https://tinyurl.com/bdhnwfkr..
[26] Para 352ZE Immigration Rules.
[27] R (SM, TM JD and others) v Secretary of State for the Home Department [2013] EWHC 1144 (Admin), 8 May 2013, available at: http://bit.ly/2kQ6lgW.
[28] Section 67 of the Immigration Act 2016 introduced obligations on the Secretary of State for the Home Department to make arrangements to relocate a specified number of unaccompanied children to the UK from other European countries. Named after a peer, Lord Dubs, who first introduced the amendment to the then Immigration Bill.
[29] Home Office, Section 67 of the Immigration Act 2016 leave, July 2018, available at: https://bit.ly/2u3v5bL.
[30] Statement of change of Immigration Rules, September 2019, available at: https://bit.ly/2tkZNQL.
[31] Home Office, Calais Leave, November 2018, available at: https://bit.ly/2Ulczag.
[32] Children (asylum policy guidance), available at: https://bit.ly/3t4u00C.
[33] Home Office, Processing children’s asylum claims, December 2020, available at: http://bit.ly/2Bcs1Le.