Guidance issued by the Home Office to social workers at the Kent Intake Unit (KIU) and age assessments carried out by them in relation to two claimants were unlawful, a High Court judge has ruled.
In MA & Anor, R (On the Application Of) v Coventry City Council & Anor  EWHC 98 (Admin) (19 January 2022), Mr Justice Henshaw found that the decision not to implement a Merton compliant age assessment was unlawful. He also found that the detention of the two claimants at the intake unit was unlawful due to the flawed age assessments.
The first claimant said he was a child of 16 years of age. However, upon an age assessment carried out by social workers at the KIU, he was considered to be 20 years old.
The second claimant also had his age disputed. Social workers found him to be 21 years old, despite his assertion that he was 17.
At the High Court, the pair challenged the lawfulness of the age assessment guidance issued to social workers at the KIU at the time, the subsequent decisions to treat both claimants as adults, and their detention at the facility while they waited to be assessed.
The claimants advanced the following three grounds:
- Ground: 1: The SSHD acted unlawfully in disputing the Claimant's age for the purpose of his asylum claim on the basis of the KIU age assessment, which is not Merton compliant [i.e. in accordance with the principles set out in R (B) v London Borough of Merton  4 All ER 280,  EWHC 1689 (Admin) ("Merton") and subsequent cases] and is not conducted in accordance with the SSHD's own published guidance, "Assessing age". Contrary to that guidance, the SSHD acted unlawfully in failing to refer the claimant to a local authority for a full Merton compliant age assessment, on the basis that this was a case that under the policy required a full assessment to be conducted.
- Ground 2: The Guidance was unlawful on the basis that it was incompatible with "Assessing age" and further on the basis that it failed to adequately take account of the Court of Appeal judgment in BF (Eritrea) v Secretary of State for the Home Department  EWCA Civ 872 [since reversed by the Supreme Court as noted later]; and therefore failing to specify that "clearly an adult" must be an equivalent threshold to "significantly over 18". The guidance was further unlawful due to the absence of provision in the policy for there to be a requirement for a form IS97M which relies upon a KIU assessment to state that expressly: absent which there was a high degree of likelihood of a lack of clarity as to who conducted the assessment, such that an individual assessed by KIU was unable swiftly to challenge that assessment. The policy should make clear that the assessment was conducted by KIU social workers (who are employed by the Home Office) and not Kent Social Services. The guidance and the assessments in this case were further unlawful for failing properly to discharge the SSHD's duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to promote and safeguard the best interests of children.
- Ground 3: [MA] The SSHD unlawfully detained the claimant at the KIU in circumstances where he had not been the subject of a Merton compliant age assessment and therefore should not have been detained under immigration powers. [HT] In the light of the fact that KIU age assessments were routinely conducted in a detained environment, in the absence of a Merton compliant assessment, the claimant had been unlawfully detained.
Mr Justice Henshaw said the gist of the Claimants’ challenges was as follows: "Since September 2020, the SSHD has been detaining newly arrived unaccompanied young people at the KIU, a short-term detention holding facility at Dover port, and carrying out short assessments of their age using social workers whom she has employed. These assessments are conducted inter alia where the young person’s claimed age is in doubt but the SSHD’s officers do not consider that their physical appearance and demeanour very strongly suggest that they are significantly over the age of 18."
The SSHD argued that the claimants were not seeking to bring a claim for unlawful detention based on their claimed ages. "Rather, they are seeking to challenge (a) their detention pending the KIU age assessments and (b) their detention thereafter - on the basis that the SSHD acted contrary to her own polices and/or in reliance on a process which cannot produce Merton-compliant age assessments."
The SSHD emphasised the time the two spent in the KIU, which was less than 24 hours for both claimants, and claimed the Secretary of State was exercising her powers provided by the Immigration Act 1971 when detaining the claimants.
Under Schedule 2 of the Immigration Act 1971, a person who may be required to submit to examination "may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter".
Turning to the claimant's arguments around the decision not to undertake a Merton age assessment, the SSHD admitted that its policies state that age disputed individuals are not to be detained pending the carrying out of a Merton compliant assessment.
But it contended that its policies "do not preclude a decision being made (in the course of the individual being processed at a short-term holding facility) that their claim to be a child should not be given the benefit of the doubt - because either (a) immigration officials consider that they appear to be 25 years of age or over or because (b) trained social workers (located on site) consider - following a 'short' Merton-compliant age assessment - that they are "very clearly" over the age of 18, and that assessment has been accepted by immigration officials. Both are situations where the individual is not then given the benefit of the doubt and may properly be treated as an adult."
The SSHD also argued that the claimants’ contentions that the carrying out of such ‘short’ assessments is contrary to the SSHD’s policies, and that they are (necessarily) not Merton-compliant, were unsustainable, and:
“As such, the Claimants’ detention at KIU so as to permit the KIU social workers to carry out a ‘short’ age assessment if considered appropriate, were not ‘tainted by public law error’ (R (Lumba) v Secretary of State for the Home Department  UKSC 12, per Lord Dyson, at paras 68, 69 and 88),‘material to the decision to detain’ (ibid, per Baroness Hale, at para 207).”
In response, the claimants argued that there is an extant dispute as to what constitutes a Merton-compliant age assessment for the purposes of the guidance and whether, properly construed, that guidance was applied lawfully in each claimant's case.
Mr Justice Henshaw said the SSHD's submissions "implicitly accept that the lawfulness of the Guidance has at least some bearing on the lawfulness of the Claimants' detention because they were, at least in part, detained for the purpose of KIU age assessments pursuant to the Guidance".
He added: "If and to the extent that detention is prolonged by reason of an interview or other process which is not itself necessary, then it will be unlawful.
"The same must in my view apply to a period of detention necessitated only by an assessment process which is inherently unlawful in the sense that it lacks essential safeguards without which it should not proceed at all. In the hearing before me, I understood the SSHD to accept there to be a surviving issue as to the legality of detention at the KIU for the purpose of short assessments pursuant to the guidance.
"The SSHD made the separate point that this issue was not "squarely" set out in the Claimants' Grounds. However, I am satisfied that the Grounds squarely challenge the guidance, link the legality to the legality of the guidance, and are sufficiently broad to encompass both the detention after the assessments and detention before and during the assessments in order for the assessments to take place."
He concluded that the Home Office guidance in its current form, and the age assessments carried out in relation to the two claimants, were not lawful in the particular respects he identified.
In addition, the judge found that if and insofar as the claimants' detention was lengthened for the purpose of carrying out those assessments, it was unlawful.
The Refugee Council welcomed the ruling, saying interviews conducted by social workers "gives these decisions the veneer of a fair process when this is plainly absent".
Enver Solomon, CEO of the Refugee Council, said: "This important judgment is very welcome but not surprising. In recent months our Age Dispute Project has helped numerous young people secure a lawful age assessment by social workers following a flawed decision made on arrival in Dover and we are relieved that the practice of hasty decisions is no longer allowed to continue. Distinguishing between adults and children is not something that can be done quickly; it takes time and expertise to make the right decision."
He added: "Children seeking safety arriving alone in the UK are bewildered and frightened. They have been subjected to processes with neither safeguards nor oversight, relying on little more than luck to ensure that someone identifies them as being wrongly deemed adult and helps them access the care they are entitled to. No child should have been faced with disbelief and such appalling practice.
"It is disturbing that this government seeks to portray this issue as one of adults abusing the system and is coming up with quick fixes, including scientific methods, already deemed inaccurate and invasive."
A Home Office spokesperson said: “We are disappointed by the court’s decision. The government is committed to protecting children and the vulnerable but we cannot allow asylum-seeking adults claim to be children – this presents a serious safeguarding risk.
"Our Nationality and Borders Bill seeks to improve the challenging age assessment process and will widen the evidence base for social workers to consider when making assessments and lead to better informed decisions.”
The guidance that the court found to be unlawful was withdrawn from use on 14 January. The Home Office said it was was withdrawn because there was no longer a need for social workers at the KIU to undertake abbreviated age assessments following the Home Office’s decision to change the threshold that its immigration officials can apply to age disputed cases.
That change means that where there is doubt over whether a person is a child or an adult, in the absence of documentary evidence, Home Office staff can treat a claimant as an adult, without further consideration of their age, if their physical appearance and demeanour very strongly suggest that they are ‘significantly over 18’ - and where two officers have reached this conclusion independently.
The Home Office has insisted that the age assessment arrangements at the KIU were only ever intended to be a temporary measure to deal with the "unprecedented circumstances" that arose in autumn 2020, when Kent County Council said it would stop supporting unaccompanied asylum-seeking children because of a surge in numbers.