United Kingdom - MA and HT v. Secretary OF State For The Home Department, Case No. CO/428/2021; CO/524/2021, England and Wales High Court, 19 January 2022

Facts:

The Claimants were subject to a Kent Intake Unit (“KIU”) age assessment when arriving into the UK [Para 5]. MA, who is a Kuwaiti Bidoon and claims to be a child of 16 years of age, had a long and difficult journey from France in the back of a lorry and entered the UK on 14 December 2020 as an unaccompanied asylum-seeker [Para 5]. He was interviewed by an immigration officer at 2.25am and was taken to KIU at 1.35am on 15 December 2020 [Para 26]. He was then subject to a short-form age assessment that lasted for 42 minutes, at the same day, conducted by two social workers employed by the Home Office [Para 5]. The social workers assessed the Claimant’s age and considered him to be an adult of 20 years of age [Para 5]. As a result, he was transferred to Yarl’s Wood Immigration Removal Centre for three days, before being realised to adult asylum support accommodation in Coventry [Para 5].

HT is an Iranian National who was rescued at sea following a long journey in a rubber dinghy across the English Channel, at around 10.30am on 10 January 2021 [Para 6]. He was subject to age assessment at 2.05pm at the same day that lasted for an hour and concluded that he was 21 years old [Para 6]. As such, he was transferred to Tinsley House Immigration Removal Centre for five days, before being put in adult asylum support accommodation in Coventry [Para 6].

Both Claimants challenged the lawfulness of: (1) the Kent Intake Unit Social Worker Guidance (“the Guidance”), based on which they were assessed to be adults; (2) the subsequent decisions by the Secretary of State for the Home Department (“SSHD”) based on KIU age assessment that treated them as adults; and (3) their detention pending the carrying out of the KIU age assessments and thereafter for 3 days at Yarl’s Wood (in the case of MA) and for 4 days at Tinsley House (in the Case of HT), following which they were dispersed to the Coventry City Council area [Para 1].

Decision & reasoning:

The Lawfulness of Detention and the Guidance

1.       Age assessment while in detention

Referring to the Supreme Court in BF (Eritrea), the Court asserted that it is necessary for the SSHD to decide, before the individual is transferred elsewhere (and, necessarily, while the individual remains in detention), whether they should at this initial stage be treated as an adult or a child [Para 94]. This requires some form of initial age assessment to be done [Para 94]. The Court further stated that detention for the purpose of a short formalised process, within the overall parameters of the duration of Schedule 2 § 16(1), would not be unlawful provided it complies with the Merton principles [Para 94]. In contrast, detention — beyond the period for which an individual would otherwise need to be detained pursuant to Schedule 2 § 16(1) — for the purpose of an age assessment that will or doesn’t comply with applicable legal standards would be unlawful [Para 94].

The Court stated that the difficulty in the present cases lies in the extent to which such a short formalised process can in fact lead to an initial age assessment that complies with the existing legal standards and policies [Para 95].

2.       Compliance with Merton case law

The Court perceives the problem to lie in the way in which the Guidance provides for short form age assessments to be done in cases where the individual is not so clearly over 18 as to constitute a clear or obvious case in the sense used in B v. Merton and subsequent case law [Para 99]. The Court asserted that the short form assessment is employed in circumstances where neither the KIU officer nor the social workers have concluded that the individual’s appearance and demeanour show that he/she is obviously significantly more than 18, or even simply obviously more than 18 [Para 104]. Thus a short form assessment will be done in cases which include those that are, at least at this stage, not ‘clear’ or ‘obvious’ cases in the sense referred to in B v. Merton, FZ v Croydon, K v. Milton Keynes or Assessing age [Para 104]. In substance, therefore, the process includes taking individuals who are not obviously over 18 based on physical appearance and demeanour, but seeking to assess whether they are clearly over 18 having regard to other factors such as family history, education, journeys to the UK and life narratives generally [Para 107]. The Court found that such an assessment is in essence the very same type of analysis that a local authority sets out to make by conducting a ‘full’ Merton-compliant assessment: for which a number of safeguards need to be present under the case law [Para 107].

In relation to the presence of appropriate adult to be present and for a ‘minded to’ safeguards, under the case law and the SSHD’s pre-existing policies, the Court found that they are necessary elements of a fair and appropriate process designed to assess a person’s age in the absence of documentary records and given the fragility of reliance on appearance and demeanour save in obvious cases [Para 109]. The Court emphasized that these features are necessary to make a reliable assessment of age at the initial stage of an individual whose appearance and demeanour do not already indicate that he/she is obviously an adult. [Para 109] This is all the more so in circumstance where the individual has only in the last 24 hours reached the end of a usually long and arduous journey, which impacts his/her ability to respond cogently to questioning about his family history, education, journey to the UK and life narrative without the assistance of an appropriate adult and a careful ‘minded to’ process [Para 109].

The Court also stated that the Guidance sanctions or approves a process which is not in accordance with the law, because it makes express reference to the report form, which by the use of yes/no tick boxes would seem to direct the social workers that both are optional features of the process [Para 113]. Further, the ‘short form’ nature of the process virtually precludes any effective ‘minded to’ process [Para 113]. Referring to HT’s case, the Court noted that the social worker told HT that “An appropriate adult is not present during this short age assessment interview. The interview is usually about an hour in length” [Para 113]. Also, the prolongation of the detention for the purpose of an assessment which is in practice not designed to comply with Merton principles is unlawful, even if such non-compliance is not positively mandated by the Guidance [Para 114].

Finally, the Court provided that both common law and section 55 of the Borders Citizenship and Immigration Act of 2009 require a fair and careful process involving appropriate safeguards, even when making an initial assessment, which the current arrangements under the Guidance does not provide for such a process [Para 117].

3.       Compliance with the SSHD’s existing policies

The Court stated that Age assessment, Detention Service Order 02/2019 (DSO), and the Enforcement and Instructions Guidance (EIG) have been carefully calibrated in order to strike a balance between the need for immigration control and the welfare of children [Paras 120-121]. The Guidance can be reconciled with these policies only on the footing that the short form assessment which it envisages can be equated to Merton-compliant local authority assessment [Para 122]. Moreover, the Court stated that even assuming that that the SSHD’ contracted social workers have particular expertise gained from working with children on a daily basis, the Guidance provides for short form assessment to be used in cases where the social workers have not concluded that it is “very clear from the claimant’s physical appearance and demeanour that they are over the age of 18” [Para 123]. Therefore, the Guidance is to that extent inconsistent with the pre-existing policies as currently framed; and it does not purport to override, or set out a reasoned basis for departure from those policies [Para 124].

The Court concluded that the Guidance, and the age assessment carried out in relation to the Claimants, were not lawful in the particular respects; and that if and insofar as the Claimants’ detention was lengthened for the purpose of carrying out those assessments, it was unlawful [Para 130].

Outcome:

Application granted.

Observations/comments:

 The argumentation of the applicants and the SSHD included the following points:

First, relying on R (B) v London Borough of Merton, the Claimants argued that SSHD’s action on the basis of of the KIU age assessment was unlawful because of not being Merton compliant, being in contradiction with the SSHD’s “Assessing age” guidance, and that SSHD failed to refer the Claimant to a local authority for a full Merton compliant age assessment. Second, they argued that the Guidance is incompatible with “Assessing age”, fails to adequately take into account the Court of Appeal’s judgement in BF (Eritrea) v Secretary of State for the Home Department, and therefore failed to specify that “clearly an adult” must be an equivalent threshold to “significantly over 18”. In addition, the Guidance is unlawful due to absence of provisions in the policy for there to be a requirement for a form IS97M which relies upon a KIU assessment to state that expressly. The Guidance is further unlawful, because it fails to properly discharge the SSHD’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to promote and safeguard the best interest of children. Third, MA argued that the SSHD unlawfully detained him at the KIU without being subject of a Merton compliant age assessment and therefore should not have been detained under immigration powers. HT argued that since the KIU age assessments are routinely conducted in a detained environment, in the absence of a Merton compliant assessment, he has been unlawfully detained.

The SHDD submitted that: (1) the Claimants do not seek to bring a claim for unlawful detention based on their ages, but they are seeking to challenge their detention pending the KIU age assessment and their detention thereafter; (2) Claimants were each detained at KIU for less than 1 day and in holding them at KIU the Secretary of State was exercising her power under Schedule 2  § 16(1) to the Immigration Act 1971and based on R (AN and FA) v Secretary of State for the Home Department; and (3) SSHD’s policies do not preclude a decision being made (in the course of the individual being processed at a short-term facility) that their claim to be a child should not be given the benefit of the doubt-because either (a) immigration officials consider that 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 the assessment has been accepted by immigration officials. Both are situation where the individual is not then given the benefit of the doubt and may properly be treated as an adult. The SSHD further argued that the Claimants’ contention that carrying out of such ‘short’ assessment is contrary to the SSHD’s policies, and that they are not (necessarily) Merton-compliant, are unsustainable, and:

“As such, the Claimant’s detention at KIU so as to permit 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 [2011] UKSC 12, per Lord Dyson, at paras 68, 69, and 88), ‘material to the decision to detain’ (ibid, per Baroness Hale, at para 207).”

The Claimants contented that there is an extant dispute as to (a) what constitutes a Merton-compliant age assessment for the purposes of the Guidance, and (b) whether, properly construed, that Guidance was applied lawfully in each Claimant’s case. The SSHD made the separate point that this issue was not “squarely” set out in the Claimant’s Grounds. However, the court asserted that the Grounds squarely challenge the Guidance.