Author
Screening of vulnerability
There is no specific mechanism to identify adult asylum seekers who need specific procedural guarantees. The inadequacy of the screening interview to identify such vulnerabilities is discussed in Registration and Accelerated Procedure. The standard questionnaire used asks only basic questions about health. As previously stated, reports on the DFT procedure agree that torture survivors were placed in the DFT, against policy, partly because there was no effective mechanism to identify them.[1] The concern remains regarding the use of detention, albeit not in an accelerated procedure, and the lack of safeguards. Of particular concern has been the definition used by the Adults at Risk policy, which is a more restricted definition of torture than was previously stated. This is explained more fully in a report by the charity Medical Justice.[2] This definition was ruled unlawful and amended. In light of this and ongoing discussions, the charity agreed not to proceed with its second challenge to the definition, although it had been given permission to proceed.[3] Policy was amended in May 2021 to bring victims of modern slavery into the remit of the adults at risk policy.
The guidance was further amended in November 2021[4] to include the new Competent Authority – the Immigration Enforcement Competent Authority. The creation of an additional second Competent Authority was criticised by a group of NGOs[5] and concerns raised by the Independent Anti-Slavery Commissioner.[6] In 2022 a report by NGOs highlighted that the government’s own statistics showed that referrals from this new body resulted in over 90% of those it referred to the NRM receiving a positive conclusive grounds decision, all of whom had been detained.[7]
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. In case of doubt, the person should be treated as though they are under 18 until there is sufficient evidence to the contrary.[8] 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. Research by the Refugee Council published in 2022 including its own statistics shows that many of these decisions made at the border are later overturned.[9].
In June 2016 the High Court ruled that the Home Office had acted unlawfully in detaining a young asylum applicant under this policy without establishing as a matter of fact whether his claim was true i.e. the decision to detain cannot be based on an officer’s ‘reasonable belief’ that the claimant was adult.[10] This decision was upheld in the Court of Appeal in February 2017.[11] The Home Office policy guidance on assessing age was amended on 26 February 2018 to reflect this judgment.
The guidance has been amended several times in recent years to reflect successful 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.[12] 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.[13] 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.[14]
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.[15] 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.[16]
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.[17]
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.[18] The quality of age assessments has been heavily criticised for several years.[19] 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.[20] Many such decisions are not reported and many do not have a bearing on other cases, as they are finding of fact cases.
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.[21]
The government in Wales has published its own age assessment guidance.[22] In Scotland, guidance is published by the Scottish government on behalf of a multi-agency collaboration.[23]
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, but the age found is not binding outside that context, and does not bind a local authority. Since the Supreme Court decision, the child is able to obtain a binding finding of fact from the court. 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. The Home Office has no power to support a child, and the local authority in that situation would not do so, yet the child had no power to obtain a resolution.[24] This judicial review power transferred to the Upper Tribunal.[25]
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. The initial decisions (including some from the previous year) from local authorities (1,693) were that 1,042 were children and 651 adults. 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 a e-appeal mechanism to replace the Judicial Review currently in the process.
[1] See e.g. Independent Chief Inspector of Borders and Immigration, Asylum: A Thematic Inspection of the Detained Fast Track, ICIBI, 2012; Tamsin Alger and Jerome Phelps, Fast Track to Despair, Detention Action, 2011.
[2] Medical Justice, Putting Adults at Risk, 2017, available at https://bit.ly/2NNBLVp.
[3] Medical Justice, Press release: ‘Home Office revises definition of torture after Medical Justice highlights problems’, 23 September 2019, available at: https://bit.ly/36aZDc9.
[4] Adults at Risk; the detention of potential or confirmed victims of modern slavery, Home Office 2021 https://bit.ly/33BbsNp.
[5] Statement from The Detention Taskforce https://bit.ly/3tGZuwr
[6] Correspondence to the Home Secretary from the Independent Anti-Slavery Commissioner https://bit.ly/3qMEaE0.
[7] Helen Bamber Foundation et al, Abuse by the System, 2022, available at: https://bit.ly/3UgJ47L.
[8] Home Office, Processing children’s asylum claims, 28th June 2022, available at: http://bit.ly/2iO8XKe.
[9] Refugee Council, Identity Crisis: How the age dispute process puts refugee children at risk, September 2022, available at: https://bit.ly/3tQa1UZ.
[10] High Court, R (AA) v Secretary of State for the Home Department [2016] EWHC 1453 (Admin), 20 June 2016, available at: http://bit.ly/29enIoB.
[11] Court of Appeal, Awed Ali v Secretary of State for the Home Department [2017] EWCA Civ 138, 9 March 2017, available at: http://bit.ly/2mScM67.
[12] MA and HT January 2022 https://bit.ly/3FFLwxf.
[13] 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.
[14] 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.
[15] ADCS, Age assessment guidance and information sharing guidance, available at: http://bit.ly/2kpC77s.
[16] Home Office and ADCS, Age assessment: Joint working guidance, June 2015, available at: http://bit.ly/2k7FIHt.
[17] ADCS, Age assessment guidance, October 2015, available at: http://bit.ly/1MUduDi.
[18] 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.
[19] Coram Children’s Legal Centre, Happy Birthday, 2013, available at: http://bzfd.it/2jcSct3 and UK section of Maria Antonia Di Maio, Review of current laws, policies and practices relating to age assessment in sixteen European Countries, Separated Children in Europe Programme, Thematic Group on Age Assessment, 2011, available at: http://bit.ly/1IohB7T; Refugee Council, Age disputed young people in the asylum system, June 2019, available at: https://bit.ly/2vqWfgh.
[20] Peter Yeung, ‘Wrongly Classifying Child Asylum-Seekers as Adults Has Cost UK Millions of Pounds’, 18 January 2017, available at: http://bzfd.it/2jcSct3.
[21] Age Assessments, GMAIU 2020, available at: https://bit.ly/36h1Wxb.
[22] Welsh government age assessment toolkit https://bit.ly/3txMsjg.
[23] Revised guidance published by Scottish government 2018 https://bit.ly/3fHJ9PL.
[24] Laura Brownlees and Zubier Yazdani, The Fact of Age, 2012, Children’s Commissioner.
[25] First Tier Tribunal and Upper Tribunal (Chambers) Order 2010, available at: http://bit.ly/1fm4pJI.