Guarantees for vulnerable groups
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. 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. 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.
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. Where their appearance strongly suggests to the officer that they are significantly over 18, a second opinion must be sought from a senior officer. If they agree that the person is 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 are at risk of being detained.
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. This decision was upheld in the Court of Appeal in February 2017. The Home Office policy guidance on assessing age was amended on 26 February 2018 to reflect this judgment.
The revised guidance also contains changes that NGOs have called for in recent years; unless the claimant is being treated as adult under the ‘significantly over 18’ policy outlined above (now amended, see below), the authorities are required to record the stated age given by the child until a final assessment has concluded differently; also clearer guidance on how a decision on age affects credibility in an asylum claim.
Similarly, in 2019, the Home Office issued interim guidance on age assessment of unaccompanied asylum-seeking children, following a successful challenge of its policy in the case of BF (Eritrea) before the Court of Appeal. In its ruling of 23 May 2019, the Court of Appeal held that the Home Office policy on age assessment, which gave Immigration Officers the power to decide an applicant is adult if their appearance and demeanour very strongly suggest the person is “significantly over 18”, was not sufficiently precise as to avoid huge differences in how it was applied, giving rise to the risk that children would be wrongly deemed adults and treated as such in the asylum system.
According to the new guidance, published on 29 May 2019, “for a person to be assessed as an adult in these circumstances, their physical appearance and demeanour must very strongly suggest that they are 25 years of age or over“.
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 a child through an agreed template. 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.
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.
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. The quality of age assessments has been heavily criticised for several years. 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. Many such decisions are not reported and many do not have a bearing on other cases, as they are finding of fact cases.
Concerns were raised about the practice of local authorities following the judgment in BF (Eritrea) as the resultant increase in referrals to local authorities (due to the new guidance binding on Immigration Officers) led to some local authorities making very brief decisions apparently based on appearance rather than professional assessments.
In January 2020 a judge ruled that although the local authority was not legally bound by the ‘over 25’ threshold as the Home Office was due to BF (Eritrea) nevertheless the abbreviated assessment in this case was judged to be unlawful as it failed to adequately acknowledge the potential margin for error.
The Strategic Migration Partnership in Wales issued its own guidance in 2015. In Scotland, the Scottish Refugee Council and Glasgow City Council have collaborated to produce a good practice guide as an aid to achieving consistency of practice. Both of these pieces of guidance are still in use.
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. This judicial review power transferred to the Upper Tribunal.
Statistics are available for age assessments ordered by the Home Office, which do not include age assessments ordered by local authorities. In 2019 there were 782 of these. No information is published relating to the resolution of these disputes.
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.
Medical Justice, Putting Adults at Risk, 2017, available at https://bit.ly/2NNBLVp.
Medical Justice, Press release: ‘Home Office revises definition of torture after Medical Justice highlights problems’, 23 September 2019, available at: https://bit.ly/36aZDc9.
EWCA Civ 872, Case No: C2/2017/2550, 23 May 2019, available at: https://bit.ly/38vOxQw.
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  UKSC 8, 26 November 2009.
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.
AB v Kent County Council EWHC  109 (Admin), available at: https://bit.ly/3cvpfoa.
Karen Dyball, Graham McPhie, Clare Tudor, Age Assessment Practice Guidance: An Age Assessment Pathway for Social Workers in Scotland Scottish Refugee Council and Glasgow City Council 2012.
Laura Brownlees and Zubier Yazdani, The Fact of Age, 2012, Children’s Commissioner.