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Home Office age assessment policy in the spotlight after Court of Appeal rules guidance is unlawful

Date of Publication: 
30 May 2019

The Guardian says labelling of child asylum seekers as adults is leading to abuse

Home Office age assessment policy in the spotlight after Court of Appeal rules guidance is unlawful

30 May 2019

The Guardian reported yesterday that the Home Office's labelling of child asylum seekers as adults is leading to abuse, with children being physically attacked, neglected or abandoned when wrongly treated as adults.

It follows on from last week's Court of Appeal judgment in BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872 which found, by a majority, that the Home Office's policy on deciding the age of young people seeking asylum is unlawful and must be rewritten, as it fails to ensure that children are not mistakenly treated as adults.

The Refugee Council said the judgment was a very important step in protecting unaccompanied children seeking asylum from being identified as adults.

Helen Johnson, the Refugee Council's Head of Children's Services, said: "We got involved in this case because every day we see children who have been deemed adult under this Home Office policy, leaving them feeling unsafe, frightened and unsupported. We are very pleased that the Court of Appeal agreed with us that the current wording of the policy does not provide sufficient guidance to ensure that children are not wrongly treated as adults. This ruling means that the Home Office must be much more cautious before it makes this decision and we hope that revised guidance will put an end to these errors once and for all."

Matrix Chambers noted that the judgment found that the Home Office's Enforcement Instructions and Guidance was unlawful as the criterion for assessing age falls short of what is required. The Court found the guidance has no recognition of how unreliable the exercise of assessing age on the basis of appearance and demeanour is and, in consequence, how wide a margin of error is required.

The UK Human Rights Blog noted: "The court heard that estimates of age could frequently have an error as great as seven years. In a split judgement, Underhill LJ and Baker LJ allowed the appeal, holding that the guidance as formulated created an unacceptable risk that children would be detained."

In its article yesterday, the Guardian quoted a Home Office spokeswoman as saying: "We are disappointed by the judgment and are considering its implications carefully. The Home Office and our accommodation providers take complaints extremely seriously. We have implemented changes to provide assurance that customer vulnerabilities are captured and understood, set up a regular safeguarding working group with senior staff from each of our providers and are reviewing our procedures around safeguarding to ensure these are fully aligned and represent best practice."

The Guardian also spoke to Laura Gibbons of the Greater Manchester Immigration Aid Unit (GMIAU), who said that 93% of the age disputed cases GMIAU had dealt with since July 2017 had been successfully challenged, the majority using legal action. In one case, a 14-year-old child was wrongly assessed to be 22.

Gibbons said GMIAU's research had identified many disturbing cases and warned: "This is a safeguarding disaster in the making." She continued: "One young person dispersed into adult accommodation said adults there told him to stop crying at night because he is keeping them all awake."