MA (R on the application of) v COVENTRY CITY COUNCIL

By these claims MA and HT (“the Claimants”) challenge or challenged the lawfulness of:

the Kent Intake Unit Social Worker Guidance (“the Guidance”), pursuant to which they were each assessed by social workers on the basis of a ‘short’ age assessment (“the KIU age assessments”) to be adults, the assessments having been carried out in respect of each of MA and HT on the date on which he was apprehended, viz 15 December 2020 and 10 January 2021 respectively;

the subsequent decisions by the Second Defendant (“SSHD”), taken following and on the basis of the KIU age assessments, to treat each of the Claimants as an adult (“the Contested Decisions”), those decisions having been taken on the date of the assessment as indicated above; and

their detention both (a) pending the carrying out of the KIU age assessments and (b) 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 First Defendant’s area on 18 December 2020 and 14 January 2021 respectively.

As set out in their respective Detailed Statements of Facts and Grounds, the bases of the Claimants’ challenges are as follows.

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 [2003] 4 All E.R. 280, [2003] 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 is unlawful on the basis that it is incompatible with “Assessing age” and further on the basis that it fails to adequately take account of the Court of Appeal judgment in BF (Eritrea) v Secretary of State for the Home Department [2019] 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 is 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 is a high degree of likelihood of a lack of clarity as to who conducted the assessment, such that an individual assessed by Kent Intake Unit (“KIU”) is 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 are 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 are routinely conducted in a detained environment, in the absence of a Merton compliant assessment, the Claimant has been unlawfully detained.

The gist of the Claimants’ challenges is 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 procedure is said to be contrary to the SSHD’s policies, and to law, because:

the age assessment is carried out whilst the young person is detained under immigration powers, contrary to established Home Office policy which states that age disputed young people must not remain in detention pending a Merton compliant age assessment;

the assessment takes place within hours or a day of the young person’s arrival into the UK, often after a long and traumatic journey by small boat or in the back of the lorry;

the Guidance directs social workers to assume that young people who require age assessment at the KIU are “potentially clearly 18 and over” and to carry out only truncated age assessments which last no more than an hour, which (it is alleged) fails to afford the “benefit of the doubt” (i.e. to presume childhood to all age disputed children who require an age assessment because their physical appearance and demeanour does not very strongly suggest that they are significantly over 18, unless and until the assessment concludes otherwise and is Merton-compliant);

no independent appropriate adult is offered to the age disputed young person at the assessment with social workers in a position of authority, at a time when they have just arrived in the UK, without adult family members, unfamiliar with the processes and practices here, and unaware of their rights; and

the evidence shows that no or no proper opportunity is given to the young person to know the adverse matters taken against them in a minded-to process and to have a fair opportunity to provide corrections, clarification and further information before a final decision on age is reached.

Each of the two Claimants was subject to a KIU age assessment when they arrived into the UK through Kent after difficult journeys to the UK. The First Claimant, MA, is a Kuwaiti Bidoon, whose claimed date of birth is 15 June 2004, who arrived in Kent following a long and difficult journey from France in the back of a lorry; was picked up by Kent police at a petrol station just after midnight on 15 December 2020 after asking for “help”. His age assessment was carried out at around noon the same day, lasted for 42 minutes and concluded that he was 20 years old. MA’s evidence is that he was not offered the opportunity to have an independent appropriate adult present at the assessment, was not given any opportunity to know what adverse matters the social workers were minded to rely upon to conclude he was older than claimed; and was not given any opportunity to provide clarification, corrections or further information about his age. Shortly afterwards, he was transferred to Yarl’s Wood Immigration Removal Centre for three days, before being released to adult asylum support accommodation in Coventry.

The Second Claimant, HT, is an Iranian national, who claims to have been born on 6 May 2003, and to have been 17 on arrival in the UK. He was rescued at sea following a long journey in a rubber dinghy across the English Channel, at around 10.30am on 10 January 2021. His age assessment took place at 2.05pm the same day, lasted for an hour, and concluded that he was 21 years old. HT’s evidence is that he did not have the opportunity to have an independent appropriate adult, to know what adverse matters the social workers were minded to rely upon to dispute his age, or to provide clarification, correction or further information about his age. On the evening of the same day, HT was transferred to Tinsley House Immigration Removal Centre for five days, before being put in adult asylum support accommodation in Coventry. During his detention at Tinsley House, the SSHD made a decision that his case was suitable for inadmissibility action under Immigration Rule 345A, a provision that applies only to adults and not children, and a notice of intent was sent to that effect.

Permission to apply for judicial review was granted by Foxton J on 11 May 2021. The First Defendant, Coventry City Council, subsequently decided to accept HT’s claimed age, and to carry out a fresh age assessment in MA’s case. Coventry also confirmed that both Claimants would continue to receive statutory care and support under the Children Act 1989 from the local authority.

The SSHD served Detailed Grounds of Defence on 31 August 2021, which among other things indicated that the Contested Decisions had been withdrawn following the identification of procedural errors. The SSHD agreed to make fresh decisions as to the Claimants’ ages following and in the light of the age assessments to be carried out by Coventry.

Also on 31 August 2021, the SSHD sought to strike out the Claimants’ challenges to the Guidance, and transfer their unlawful detention claims to the general Queen’s Bench list, on the grounds that the above concessions rendered the public law claim academic. The Interested Party, Kent County Council (“Kent CC”), supported that application. Lang J dismissed the application (with costs) on 4 October 2021, stating inter alia:

In HT’s case, the SSHD on 13 October 2021 agreed to accept his claimed age, on the basis of inter alia expert evidence dated 15 July 2021 served on the SSHD on 6 October 2021 as part of the Claimants’ contested application to rely on further evidence (to which I revert later).

Following the hearing before me, the SSHD on 1 December 2021 provided post-hearing clarifications, including reference to information received by the SSHD that Coventry City Council has now carried out an age assessment of MA and concluded that he is at least 21 years of age. The assessment process comprised three assessment interviews carried out on 18, 19 and 26 October, two ‘minded to’ meetings on 27 and 28 October 2021, and an ‘outcome meeting’ on 11 November 2021 at which MA was informed of the result of the age assessment and provided with copies of the age assessment (information sharing) pro forma and the full age assessment. Copies of those documents were provided to me.

Before me, the SSHD took the position that:

apart from the claims for unlawful detention, the claims are academic and fall to be dismissed;

in light of the developments outlined above, the (free-standing) challenge to the Guidance has been rendered academic in these cases;

to the extent that the Claimants separately seek to ‘challenge’ the KIU age assessments, they are not in themselves public law decisions that can attract the supervisory jurisdiction of the court on a claim for judicial review;

the court should not readily determine issues which are academic as between the parties. The fact that the Guidance continues to be operated is not in itself a good reason for the court to determine the lawfulness of the Guidance;

in any event, the SSHD has a cogent defence of the Guidance;

the SSHD is, moreover and in any event, preparing to publish updated versions of the Guidance, her policy “Assessing age” and related materials. Any challenge to the Guidance may more appropriately be considered in a future a case against the Guidance as updated;

subject to those points, the focus in accordance with Lang J’s order of 4 October 2021 should be on the lawfulness of the Claimants’ detention, and it is only through that prism that the Claimants’ contentions about the lawfulness of the Guidance (to the extent they bear on the lawfulness of their detention) need to be addressed; and

as Lang J noted, the unlawful detention claims do not turn on issues of fact: which must be correct on the basis that the Claimants’ unlawful detention claim is not predicated on their claimed or accepted ages or the specific facts and circumstances of each of their cases. The SSHD understands the Claimants not to rely on any case-specific matters save by way of illustration of the general points they are levelling against the Guidance.

Focussing on the relevance or otherwise of the lawfulness of the Guidance to the remaining disputes between the parties, the SSHD submits that:

The Claimants are 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 Claimants were each detained at KIU for less than 1 day:

in MA’s case, for a period of some 14 hours, between 1.35am and 3.19pm on 15 December 2020: with a welfare interview carried out between 2.25am and 2.50am and thereafter the KIU assessment carried out between 12.15pm and 12.57pm; and

In HT’s case, for a period of 8 hours, between 12pm and 8pm on 10 January 2020: with the KIU assessment carried out between 2.05pm and 3.05pm.

On the basis that the Claimants cannot sensibly challenge their detention for the purposes of carrying out routine examinations and processing (see further below), the relevant time period in issue for the purposes of their unlawful detention claim further reduces.

Thereafter, and on the basis of the Contested Decisions, MA and HT were detained at Yarls Wood and Tinsley House - for 3 days and 4 days respectively. As the SSHD has withdrawn the Contested Decisions, it is accepted that their detention at Yarls Wood and Tinsley House was without a lawful basis – regardless of the Merton-compliance (or otherwise) of the KIU age assessments on which the Contested Decisions were based, and regardless of whether they were an adult or a child at that time.

In these circumstances, the real (and narrow) focus on the Claimants’ claim for unlawful detention is in respect of that part of their detention at KIU where they were held for the purposes of their referral to the KIU social workers.

The relevant power, for the purpose of this aspect of the unlawful detention claims, is that under Schedule 2 § 16(1) to the Immigration Act 1971, under which a person who may be required to submit to examination under Schedule 2 § 2 “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”. Schedule 2 § 2 provides that:

In holding the Claimants at KIU for the short time they were there (less than 1 day), the Secretary of State was exercising her power under § 16(1). In R (AN and FA) v Secretary of State for the Home Department [2012] EWCA Civ 1636, it was common ground and was accepted by the court that it would be permissible to detain even unaccompanied children for a short period, subject to the constraints referred to in that judgment.

The SSHD’s policies quite properly state that age disputed individuals, (where their claim to be a child is given the benefit of the doubt) are not to be detained pending the carrying out of a (local authority) Merton compliant assessment. This makes patent sense given the length of time it can take for a Merton compliant age assessment to be carried out by the relevant local authority and the fact that those whose claim to be a child is in doubt should not be detained pending that assessment, which may take several weeks to organise and carry out.

However, the SSHD’s 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 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, are unsustainable, and:

The Claimants, on the other hand, contend 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. Further, they say this is a point of significant public importance as it is clear from the evidence that the Guidance has not only affected the Claimants but many other newly arrived unaccompanied children who have, as a result of the policy, been assessed to be adults, detained wrongly as adults, and denied statutory care and support (until such time as they were able to access legal advice and assistance); and that it continues to affect unaccompanied children who are newly arrived into Kent and detained at the KIU.

The SSHD’s submissions recorded at § 13(v), (ix) and (x) above 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. 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 (see, e.g., AN and FA v SSHD [2012] EWCA Civ 1636, VS v SSHD [2014] EWHC 2483 (QB) § 96, (affirmed at [2015] EWCA Civ 1142 § 39). 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.

As to the substance of the dispute, for the reasons set out below, I have concluded that the Guidance in its current form, and the age assessments carried out in relation to the Claimants, were not lawful in the particular respects I have identified; and that if and insofar as the Claimants’ detention was lengthened for the purpose of carrying out those assessments, it was unlawful.

The SSHD operates the National Asylum Intake Unit (NAIU) which is responsible for registering a large number of the asylum claims in the UK through a screening process. The NAIU has three sites, namely the Asylum Intake Unit in Croydon, the KIU in Dover and the Midlands Intake Unit. Whereas the other two asylum intake units are non-detained, the KIU is a short-term detention holding facility located within the Port of Dover. The Guidance notes that “[t]hose arriving at the unit [KIU] will already be detained” (p.14).

In response to increased pressures on Kent CC’s children’s services (which arose in the summer of 2020 due to the increase in the number of small boat arrivals), the SSHD introduced a number of measures to alleviate the situation. In the first place, officials from the Home Office worked closely with Kent CC to establish a team of Home Office funded social workers to support Kent CC in carrying out a backlog of outstanding age assessments in respect of those who had been referred to Kent CC under the process outlined in “Assessing age”.

However, in mid August 2020, Kent CC announced that it had “reached capacity for the care of unaccompanied children” (apart from British children), and would refuse to receive any newly arrived unaccompanied children into its care and to provide statutory care and support to them under the Children Act 1989. This included a refusal to take age disputed children into its care pending an age assessment.

The SSHD did not then seek to refer young persons to other local authorities in the South East or elsewhere in the UK under the National Transfer Scheme (though I should make clear that there was no evidence or argument before me as to whether or not that would have been feasible). Instead, the Home Office contracted another team of suitably qualified social workers to work alongside Home Office officials in the KIU to provide social worker support and advice in relation to unaccompanied children, and to those claiming to be unaccompanied children but whose claimed age is doubted. The social workers are professionals supervised by senior social workers in the Home Office Safeguarding Advice and Children’s Champion team. This arrangement was set out in the Guidance. The Guidance was devised to operate alongside and within the “Assessing age” guidance. The current (and material) version of the KIU Guidance is version 2 which was published on 3 December 2020.

The underlying rationale for the Guidance was the need to ensure, as far as possible, that individuals being referred to local authorities for age assessments (whether Kent CC or other local authorities) are children or likely to be children. Furthermore, it was considered that identifying adults as early as possible in the process would reduce the safeguarding risk of placing adults alongside children. In addition, where children are identified, the Guidance allows for social workers to support the KIU safeguarding processes.

The SSHD contends that the Guidance operates by providing immigration officers with the benefit of social worker input in appropriate cases to support and strengthen decision-making. In particular, it was considered that the introduction of a small group of social workers, based at KIU, would minimise the risk of transferring adults to local authorities, by identifying those individuals who might not meet the ‘25 years and over’ threshold for immigration officers (introduced following the judgment of the Court of Appeal in BF (Eritrea) and as set out in “Assessing age”) but were assessed to be ‘clearly an adult’ on the basis of a less prolonged social worker assessment.

I set out the detailed contents of the Guidance, so far as relevant, in more detail in section (D) below.

As to the facts of the Claimants’ particular cases, I have given a short outline in §§ 5 and 6 above. The brief factual summaries set out at the beginning of the Claimants’ respective Grounds are as follows:

MA’s evidence is that he had travelled in a lorry for two days before entering the UK late in the night on 14 December 2020. He was found by police in the early hours of 15 December 2020 and was taken to the KIU at 1.35am. He was interviewed by an immigration officer at 2.25am before being held at the KIU until the age assessment commenced at 12.15pm.

In relation to the age assessment interview, MA in his first witness statement states:

HT’s evidence is that he had entered the UK by boat, after a terrifying 7-8 hour journey, during which time he was wet and freezing. He entered the UK after being rescued at 10.30am, was taken to the KIU at 12 noon and the assessment commenced at 2.50pm.

In relation to the age assessment interview, HT in his first witness statement states:

When granting interim relief in each of these two cases, Lang J observed that:

in MA’s case, that “the Kent Intake Unit (“KIU”) assessment was a short form assessment. Arguably, it was not Merton compliant, nor did not purport to be. The assessment took place while the Claimant was detained at a screening facility; there was no appropriate adult present; and there was no ‘minded to’ procedure. Rarely, there are clear cases where a full Merton assessment is not required.” Given the claimed age of 16 and the assessed age of 20, Lang J considered that “the Claimant has a strong case for saying that the margin of error was too close to 18 to be safely relied upon without a full assessment”; and

in HT’s case, that “the KIU assessment was not, and did not purport to be, Merton compliant” and “arguably, this is not a clear and obvious case where a full Merton assessment is not required. The possible ages identified in the report are that he is 17 (based on his own account); or 19 (based on the assessment of his ‘life narrative’ in school and college); or 21 (the assessors’ conclusion, which is not expressly explained, but appears to be based on his physical appearance, demeanour and interaction with them)”.

I have already quoted in part the relevant provisions of Schedule 2 to the Immigration Act 1971, but for ease of reference aim to set out all the relevant provisions below.

The SSHD may only detain individuals if she has lawful authority to do so. So far as relevant here, that authority is conferred by Schedule 2 to the 1971 Act. Paragraph 2 of Schedule 2 provides:

Paragraph 16 of Schedule 2 provides that:

Paragraph 18 provides that where a person is detained under § 16, an immigration officer may take all such steps as may be reasonably necessary for photographing, measuring or otherwise identifying him, including taking fingerprints.

Paragraph 18B provides:

It should be noted, however, that §§ 16(2A) and 18B apply to detention pursuant to § 16(2), whereas the SSHD claims in the present context to be exercising only the § 16(1) power.

Section 55 of the Borders Citizenship and Immigration Act 2009 (“BCIA 2009”) imposes a duty on SSHD to make arrangements for ensuring that, in the exercise of any of her functions, they are discharged “having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom” and that any service provided achieves the same.

Starting with an overview, Thornton J in R (AB) v Kent County Council [2020] EWHC 109 (Admin), [2020] PTSR 746 at § 21 set out the following list of the age assessment guidelines as they currently stood, being an amalgamation of the requirements in Merton and subsequent caselaw, summarised in VS v The Home Office [2014] EWHC 2483 (QB), and the summary in “Assessing Age”:

However, it is helpful to focus more specifically on the parts of the case law of most direct relevance to the present case, including the topics of ‘obvious cases’, presence of an appropriate adult, and ‘preliminary decisions’ (adopting the terminology used by Thornton J in quoted § 18 above). I aim to do so in chronological order.

In Merton itself (where a local authority social worker had conducted an interview lasting somewhere between 25 and 45 minutes, concluding the claimant to be aged at least 18-20), Stanley Burnton J dealt with obvious cases as follows:

It is evident from § 27 that the judge regarded cases where the person concerned is only a few years over 18 as not being “very obvious” cases. There is no reason to believe he used the expressions “clear cases” and “obvious case” in §§ 37 and 38 in any different sense. It is a common theme in the age assessment case law that relatively modest differences of age cannot reliably be determined based only on appearance and demeanour, particularly in persons who have just endured difficult journeys or other experiences, and bearing in mind also differences in children’s typical lifestyles (e.g. physical labour) between different countries.

Stanley Burnton J in Merton addressed provisional decisions thus:

The same topics were taken up in R (FZ) v LB of Croydon [2011] EWCA Civ 59, [2011] PTSR 748, which was an appeal from a decision refusing permission to apply for judicial review, but where the Court of Appeal gave a reserved and detailed judgment. As to ‘obvious’ cases, the court stated:

As to provisional decisions, the court said:

FZ also considered the need for an appropriate adult to be present at the assessment:

It is true that the claimant in FZ not only claimed to be a child (and had been accepted as such by the SSHD) but also had mental health difficulties. However, it is notable that the reasoning set out in quoted § 23 above preceding the sentence starting “Additionally” is not dependent on the existence of such difficulties. Moreover, the last sentence of that paragraph appears to endorse Blake J’s statement at § 50(1) of R (NA) v London Borough of Croydon [2009] EWHC 2357 (Admin), where he said:

Coulson J in R. (on the application of J) v Secretary of State for the Home Department [2011] EWHC 3073 (Admin), after citing FZ, said:

The Supreme Court in R (AA) (Afghanistan) v Secretary of State for the Home Department [2013] UKSC 49 explained the relevance of the SSHD’s “Assessing age” guidance in ensuring compliance with her obligations under BCIA 2009 section 55 to safeguard and promote the welfare of children who are in the United Kingdom, in the immigration and enforcement context:

The Court of Appeal returned to the topic of appropriate adults in R (ZS) v Secretary of State for the Home Department [2015] EWCA Civ 1137, which concerned a claimant who had arrived in the UK and been age assessed in 2009, before the decision in FZ. The court rejected the claimant’s case that he had not been offered an appropriate adult and that the assessment was therefore unlawful, for these reasons:

The court’s statements in quoted § 52 above were strictly obiter, since the court rejected both the claimant’s factual case that no appropriate adult was offered and his legal case that one was required for an assessment in 2009. However, these statements indicate that the Court of Appeal viewed its own decision in FZ as holding such a requirement to exist. I respectfully agree.

In R (K) v Milton Keynes Council [2019] EWHC 1723 (Admin), Pepperall J referred to the category of ‘clear cases’ in similar terms to those quoted above from FZ § 2:

Finally, returning to AB, Thornton J held Kent CC to have acted unlawfully in assessing the claimant’s age using an ‘abbreviated assessment’ in circumstances where inter alia his assessed age of 20-25 years was, in all the circumstances, too close to 18 for Kent CC not to have given him the benefit of the doubt and conducted a Merton compliant assessment.

The claimant had arrived at the Port of Dover from Afghanistan after a journey of 9-12 months, and claimed asylum. After an immigration interview, he was sent to the 'Atrium', a designated area for unaccompanied asylum seeking children, and there delivered into the care of Mr Carter from the Refugee Council. Later the same morning, the claimant was interviewed in the Atrium for approximately 30 to 45 minutes by an experienced Kent CC social worker plus a colleague, and then for 10-20 minutes by a Chief Immigration Officer (Mr Nicholls) and a member of the Home Office asylum support team (Ms Mead). After discussion with the social workers, with Mr Carter (who disagreed with their conclusion) and among themselves, Mr Nicholls and Ms Mead concluded that the claimant was over 18 years of age and notified him of this. The following passage of Thornton J’s discussion are of relevance to the present case:

The SSHD has given guidance to immigration officers about how they should approach claims by asylum seekers that they are under 18, including the following:

Assessing age;

Enforcement Instructions and Guidance (“EIG”) Chapter 55 section 55.9.3.1, which deals with age disputes in the context of detention;

Detention Services Order 02/2019 “Care and management of Post-Detention Age claims” (“DSO 02/2019”); and

the Age Assessment Joint Working Guidance issued by the Home Office and the Association of Children’s Services Directors (“ACDS”).

This policy guidance sets out the SSHD’s approach to dealing with age dispute cases arising in respect of putative unaccompanied asylum seeking children (“UASC”). The current version is version 4.0, published on 31 December 2020. The previous version, in force as at the date of the Contested Decisions, was version 3, published on 23 May 2019. There are no material differences between version 3 and 4. Version 3 contained amendments to take into account the judgment of the Court of Appeal in BF (Eritrea), referred to below, which remain in place in version 4. As explained below, the Supreme Court has now overturned the decision of the Court of Appeal and the Secretary of State is in the process of updating Assessing age (and related documents) to take this into account.

The section of Assessing age on “Initial age assessment” notes the “very significant consequences” if immigration officers fail to adhere to the legal powers and policy on detaining children, and that Home Office policy “therefore is to apply the age assessment process in such a way as to guard against the detention of children generally, including accidental detention of someone who is believed to be an adult but subsequently found to be a child”. Further:

The policy goes on to explain that the initial age assessment stage for cases where the claimed age is not accepted is intended to lead to a decision on how an individual should be treated, and is divided into three possible outcomes with a number of reasons for arriving at them. Further guidance, on how a decision should be made as to which group an individual should fall, is provided later in this section. The three possible outcomes with reasons for arriving at them are as follows:

The subsequent section headed “Physical appearance and demeanour very strongly suggests that they are 25 years of age” includes, in the sub-section on “Assessing physical appearance”, explanations of the limitations of assessing physical appearance and demeanour of a young person, including that:

the claimant’s journey to the UK, which may have been long and traumatic with limited opportunities to manage their basic physical health and self-care needs, and could have had an aging effect on their appearance; and that with good care and some recovery time, the claimant’s physical appearance may appear younger within a short period of time;

children in some countries are more likely to have engaged in physical work from an early age than children in more industrialised nations – in these circumstances calloused hands are less likely to be evidence of maturity;

some young people take on responsibilities normally associated with adulthood at an earlier age, for example due to the culture in the country of origin or individual circumstances – in some instances this may result in a demeanour which appears older than their true chronological age;

the journey could also have left the claimant exhausted, emotional and malnourished;

observations of demeanour made over a short period of time, such as during asylum registration, will limit the weight that can be applied to them; and

although levels of maturity can be assessed, maturity is “not an accurate reflection of chronological age” and maturity itself can be variable. “You must also keep in mind that young people may deliberately attempt to present as younger or older than their age.”

For these reasons, the Assessing age policy:

The policy also contains a section on local authority age assessments, including a summary of basic requirements derived from Merton and further case law. This includes the following passages:

There is also a sub-section on “Reduced local authority age assessments”, including these passages:

EIG § 55.9.3 states that “as a general principle”, even where one of the statutory powers to detain is available in a particular case, unaccompanied children (that is, persons under the age of 18) “must not be detained other than in very exceptional circumstances” and “for the shortest possible time, with appropriate care.”

EIG § 55.9.3.1 states that the Home Office will accept an individual as under 18 “unless” one or more of four criteria (A, B, C, D) applies. For present purposes, A to C are materially the same as the criteria under “Outcome 1” in the Assessing age (and D is not relevant for present purposes).

DSO 02/2019 “Care and Management of Post Detention Age Claims” (August 2019) sets out further instructions and guidance for Home Office staff operating in immigration detention centres on the correct process for dealing with individuals claiming to be under 18.

The DSO defines

a “child” as someone who either has documentary evidence to demonstrate they are under 18, or has been subject to a Merton compliant age assessment by a local authority which concluded that they are under 18, and which the Home Office has accepted (§ 8);

an “adult” as a person who has:

an “age dispute case” as one where the individual claims to be a child, does not meet the criteria for being treated as an adult, but is unable to prove he/she is under 18 and “is awaiting a Merton compliant age assessment to confirm their age” (§ 11).

Paragraphs 4, 5 and 14 of the DSO state:

The Age Assessment Joint Working Guidance (“JWG”) is a document setting out agreed arrangements between the Home Office and local authorities in England where either of them disputes the age of a person claiming to be a child. It does not replace local authorities’ practice guidance or age assessment guidance issued by the Home Office (see para 1.1). It sets out the terms of joint working but does not purport to alter or amend the internal processes of either the Secretary of State or relevant local authorities.

The JWG provides for contact and referral points, information sharing, reviews of age in light of fresh evidence and actions to take when there are conflicting age assessments. It also provides at pp. 6-7 guidance for the location of local authority age assessments, providing that local authorities must attend places where people claiming to be children are held for their own safety, including ports. The JWG provides that where the local authority is called by the Home Office to conduct an age assessment, the local authority must take the claimed child into its care before conducting an age assessment. A glossary at pp. 14 - 15 of the JWG indicates that “age assessment” in this context refers to an age assessment carried out by a local authority.

The JWG includes the statements that “An individual who is defined as an age dispute case will not remain in detention pending a local authority age assessment (with the exception of individuals previously sentenced by the criminal courts as an adult).” (p.7) and:

The JWG also indicates that:

The approach to challenges to the lawfulness of policies has recently been considered by the Supreme Court in R (A) v Secretary of State for the Home Department [2021] UKSC 37; [2020] 1 WLR 3931 and in R (BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38; [2021] 1 WLR 3967.

In A, the claimant was a convicted child sex offender who brought a claim for judicial review of the Child Sex Offender Disclosure Scheme Guidance, which outlined a co-ordinated approach which police forces could adopt when members of the public requested information about whether persons who had contact with children had any convictions for sex offences involving children. The guidance had been made pursuant to common law powers, and had no statutory force. The claimant contended that the guidance did not go far enough in giving guidance about the circumstances in which a police force was obliged to seek such representations before disclosing information about him. Dismissing the claim, the court followed Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, which concerned guidance issued by the Department of Health and Social Security to health authorities on family planning services including a section on contraceptive advice and treatment for young people. As highlighted in A (§ 33), Lord Scarman in Gillick stated that:

Pertinently to the case before it, the Supreme Court went on to explain that:

In a judgment handed down the same day in BF (Eritrea), the same constitution of the Supreme Court applied the approach summarised in the passages quoted in § 72 above, when dismissing a challenge to criterion C of EIG § 55.9.3.1 and the corresponding passage in Assessing age. These provided that (in the context of initial assessment of age) the Home Office would not accept that an individual was under 18 if his physical appearance or demeanour very strongly suggested that he was ‘significantly’ over 18 years of age and no other credible evidence existed to the contrary. The Court of Appeal had held that passage to be unlawful because the word ‘significantly’ did not adequately reflect the width of the required margin of error, since it could be interpreted in different ways, creating a risk of misinterpretation: the guidance should instead attempt to quantify the extent of the required margin of error. Reversing that decision, the Supreme Court held the relevant passages not to be unlawful. The Supreme Court’s judgment included the following passages, which it is necessary to set out at some length:

The Supreme Court in R (Lumba) v SSHD [2011] UKSC 12, [2012] 1 AC 245 held that a detention may be rendered unlawful by a public law error which bears on and is relevant to the decision to detain; the decision must be one which was capable of affecting the outcome and did so; it is not a defence that a decision to detain free from error could and would have been made (see §§ 68, 69, 88 and 207).

On 18 September 2020 the SSHD published version 1.0 of the KIU Social Worker Guidance, to provide “guidance and information relevant to the delivery of social worker assistance by a team of social workers contracted to the Home Office who would support the delivery of KIU’s functions in respect of children and those claiming to be children.” On 3 December 2020, an updated version 2.0 was published. Both Claimants were subject to version 2.0 of the Guidance. For present purposes, the two versions are materially the same.

The Guidance at page 4 defines the key aims of the policy as inter alia (a) “strengthen the processes for ensuring children arriving in KIU are safeguarded […]”, (b) “to strengthen processes for assessing the ages of those whose claims to be children are doubted” and (c) “to reduce the pressure on local authority resources by decreasing the number of adults referred to them by the Home Office for age assessments […].”

The Guidance states that it is subject to the BCIA 2009 section 55 statutory duty “to safeguard and promote the welfare of children who are in the UK, including that the best interests of the child are a primary consideration at all times” (p4) and “must be read in conjunction with” Assessing age, the JWG and the ACDS Age Assessment Guidance, the latter of which consolidated case law principles on age assessments in non-statutory guidance. The Claimants highlight the fact that the ACDS guidance includes the statement that “[t]he appropriate adult plays an important role in supporting a child or young person through the age assessment process, and it is a legal requirement that a child or young person is offered this support” (section I).

The Guidance lists age assessments as “Primary objective 1” (p8), safeguarding children where there are immediate welfare concerns as “Primary objective 2” (p,9) and general safeguarding assistance as a “secondary objective” which is “subject to having spare capacity” at the KIU (p.10). Neither Primary objective 2 nor the secondary objective would apply to or benefit those young people who have been assessed as adults under “Primary objective 1”.

The section of the Guidance on age assessment is, so far as material, as follows (with numbering interpolated for ease of reference):

The “Kent Intake Unit initial age assessment report” form referred to in the text quoted above states at the top that it is:

Assessing age requires the Assessing Officer to complete form BP7 (ASL.3596), which provides the following options in section 1:

Two officers (one of at least CIO/HEA grade) have separately determined that his/her physical appearance/demeanour very strongly suggest he/she is 25 years of age or over and no other credible evidence exists to the contrary.

There is credible and clear documentary evidence that he/she is 18 or over.

There is a “Merton-compliant” social services assessment available stating that he is 18 or over, which has been accepted by the Home Office.”

The Guidance envisages that the assessment will be conducted while the young person is detained under immigration powers (p.14), and does not contemplate other venues.

The SSHD made the point that a person who is assessed to be an adult following a short form Merton compliant age assessment can still approach their local authority’s Children’s Services department with a view to that authority undertaking their own assessment of age if they believe the Secretary of State’s decision as to their age to be incorrect (and, counsel told me, many do). Where doubt remains over whether the claimant is an adult or a child, they will be referred by KIU to a local authority for a (potentially second) Merton-compliant age assessment to be completed. They will be treated as a child until further assessment of their age has been conducted. If a short Merton age assessment was conducted, a copy of the age assessment proforma must be sent to the local authority.

The KIU Guidance explains that “the document will be kept under close review and will be amended as these arrangements are embedded.” Counsel for the SSHD explained that such a review is presently taking place (alongside a review of related aspects of the Assessing age). New versions of the updated Guidance and Assessing age will also take into account the judgment of the Supreme Court in BF (Eritrea).

In their written submissions, the Claimants began with the proposition that the power to detain derives from § 16(2) of Schedule 2 to the Immigration Act 1971; and that that power must be strictly and narrowly exercised, including in accordance with published policies: Lumba [2012] 1 AC 245, Kambadzi v SSHD [2011] 1 WLR 1299 at §§64, 69-72. In response to the SSHD’s point that the relevant power is § 16(1), the Claimants submit that the same principles must apply.

The Claimants submit that it was not lawful to detain them for the purposes of an age assessment. They highlight, in particular:

the statement in in DSO 02/2019 that a person “must not remain in detention pending a Merton compliant age assessment”. The DSO is itself referred to in Assessing Age (at p62, referring to the predecessor to DSO 02/2019 which made the same statement). The DSO statement is also referred to in the JWG (“an individual who is defined as an age dispute case will not remain in detention pending a local authority age assessment (with the exception of individuals previously sentenced by the criminal courts as an adult)” (p.7);

the direction in DSO 02/2019 that immigration officers promptly make arrangements for the local authority to collect the age disputed child from immigration detention;

the conclusion reached by the Court of Appeal in AN and FA v Secretary of State for the Home Department [2012] EWCA Civ 1636 that the point at which a local authority should be notified of the presence of an unaccompanied child for the purposes of taking them into local authority care is shortly after the initial welfare interview, albeit that was not an age assessment case (§§95-97);

the statements in EIG § 55.9.3.1 that the threshold that must be met for individuals to enter or remain in detention following a claim to be a child “is a high one” and “is only met if the benefit of doubt afforded to all individuals prior to any assessment of their age is made is then displaced” by reason of documentary evidence, a decision that they are “significantly over 18” or a lawful age assessment; and

the statement in Assessing age that the policy rationale is, cogently, “to guard against the detention of children generally, including accidental detention of someone who is believed to be an adult but subsequently found to be a child.” (p.10)

The Claimants point out that all of these policies form part of a system for arriving at a reliable assessment of a person’s age in the immigration and enforcement context. They have been carefully formulated, having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom as required under section 55 BCIA 2009, as stated in R (AA) (Afghanistan) at §§47-49.

The SSHD responds that Schedule 2 § 16(1) confers a power to detain a person “pending examination and pending a decision to give or refuse him leave to enter”, and the Court of Appeal in AN & FN recognised that:

Further, Schedule 2 § 18 provides that where a person is detained under § 16, an immigration officer may take all such steps as may be reasonably necessary for photographing, measuring or otherwise identifying him, including taking fingerprints.

The SSHD points out that, whilst she seeks to process new arrivals as quickly as possible, there is no express time limit to the amount of time for which she may detain an individual pursuant to Schedule 2 § 16(1) – whether 24 hours or otherwise. This applies even in the case of a UASC, subject to the limits identified by the Court of Appeal in AN & FA. Nevertheless, the Secretary of State uses 24 hours as an operational benchmark for the maximum amount of time that a UASC may ordinarily remain in detention. Even in cases such as the present where a person’s claim to be a child is disputed (i.e. he or she has not (yet) been accepted to be a UASC) and a referral is made to KIU social workers, the age assessment and subsequent decision as to age is still sought to be made within 24 hours of arrival at the facility.

The SSHD’s core submission on this point is, thus, that:

The SSHD adds that:

The policies consistently provide for decisions regarding age to be made without the need for referral to local authorities for a full Merton assessment. EIG Chapter 55 and the Assessing age have consistently provided for summary assessments of age to be made by immigration officers, based on appearance and demeanour. The margin of error provided for in those policies has varied with changes to the relevant case law (and specifically with the progress through the appellate stages of BF (Eritrea)).

There is a consistent pattern of assessments of this kind being found to be lawful; and they are routinely carried out when the subject is detained.

The Supreme Court in BF (Eritrea) – beyond commenting (at § 62) that the “25 years or over approach” which was put in place following the judgment of the Court of Appeal risks being unlawful in the Gillick sense – goes further and leaves open the question as to whether even the “very strongly suggests significantly over 18” approach is in fact required by BCIA section (judgment § 59).

Where short form assessments of age are not appropriate (whether summary assessment by immigration officers or short-form Merton assessments by KIU social workers) then the SSHD is obliged to refer the subject to a local authority for a full Merton-compliant assessment. It is these full Merton assessments that may not be carried out when the subject is detained.

In this respect, the SSHD’s policies quite properly state that age disputed individuals (i.e. where their claim to be a child is given the benefit of the doubt) are not to be detained pending the carrying out of a (local authority) Merton-compliant assessment and, further, that immigration removal centres and port detention facilities are not suitable environments for (such) age assessments. This makes patent sense where what is in contemplation is a Merton compliant age assessment to be carried out by the relevant local authority and the fact that those whose claim to be a child is in doubt should not be detained pending that assessment (which may take several weeks to organise and carry out).

However, the SSHD’s policies do not preclude a decision being made (in the course of the individual being processed at a short-term detention 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. In such cases, the individual is no longer an age dispute case.

The underlying rationale for the Guidance was the need to ensure, as far as possible, that individuals being referred to local authorities for age assessments (whether Kent CC or other local authorities) are children or likely to be children. Furthermore, it was considered that identifying adults as early as possible in the process would reduce the safeguarding risk of placing adults alongside children. The need for such a measure – given the increased caseload faced in particular by Kent CC, and therefore and in any event other local authorities, is confirmed by Kent CC’s explanation (going above and beyond the increase in the number of small boat arrivals) that the increase in the number of referrals to Kent CC “since the adoption of the version of the assessing age policy following BF (Eritrea) in the Court of Appeal” from 18% of arrivals (61 cases) in 2019 to 59% (178 cases) by the first half of 2021 (per Kent CC’s Position Statement of 28 September 2021 in these proceedings, § 6(a)).

The fact that the policies were otherwise drafted at a time when Merton-compliant assessments were routinely carried out only upon referral to and/or by local authority social workers cannot bear on the true meaning of those polices.

Immigration officials are and should be entitled to rely on the outcome of a Merton-compliant assessment carried out by social workers under the KIU Guidance in the same way as they are able to rely on Merton compliant assessments carried out by social workers engaged by a local authority. There is no qualitative difference between a Merton-compliant age assessment carried out by social workers engaged by a local authority, and a Merton-compliant age assessment carried out by social workers engaged by the SSHD. Whilst they are contracted by the Home Office, they are required and expected to maintain independent professional judgment, in the same way as local authority social workers employed or contracted by local authorities are required and expected to act. Assessing age is not to be read as denoting a separate requirement (beyond the Merton compliance of the age assessment) that the assessment be carried out by a local authority.

The SSHD is presently updating the Assessing age (and Forms IS97M and BP7) in order to take into account the KIU Guidance and the possibility of reliance by immigration officers on Merton compliant age assessments (whether as carried out by local authority social workers or otherwise). This step will dispose of the Claimants’ contention that KIU social workers are not local authority social workers and therefore cannot fall under the relevant outcome specified in the Assessing age. It will further dispose of the criticism that a local authority on referral (Coventry City Council, in this case) incorrectly assumes – on the basis of the documentation - that another local authority has carried out the age assessment.

In principle, I consider the SSHD’s submission, as quoted in § 92 above (and including the important proviso of Merton compliance), to be correct. As recognised by, for example, the Supreme Court in BF (Eritrea) at §§ 54 and 56-57, 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. That requires some form of initial age assessment to be done. I see no objection in principle why the SSHD should not be entitled to enlist the assistance of social workers in that context. Further, I would be inclined to the view that detention for the purpose of a short formalised process, within the overall parameters of the duration of Schedule 2 § 16(1) detention referred to earlier, would not be unlawful provided (as the SSHD accepts) it complies with Merton principles. Conversely, 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 does not comply with applicable legal standards would in my view be unlawful.

The difficulty, as I perceive it, 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. This topic is the subject of sections (2) and (3) below.

The Claimants submit that the age assessments envisaged by the Guidance are inconsistent with Merton principles because:

they are carried out shortly after individuals arrive at the KIU, typically following a long and difficult journey (as in the cases of the Claimants), and the Guidance does not direct any consideration of the appropriateness of carrying out an age assessment in such circumstances: even though (as recognised in Assessing age) impressions about physical appearance and demeanour are even more fragile factors for determining age in relation to a newly arrived young person, and long and traumatic journeys can have an aging effect on a person’s appearance and demeanour.

The report form which the Guidance requires the social workers to use, referred to above, pre-empts any view that the social workers may take about the young person’s physical appearance and demeanour and how that is to be factored into the assessment as a whole, by directing social workers to proceed on the basis that it is already “very clear from the individuals’ physical appearance and demeanour that they are over 18 years of age, with no compelling evidence to the contrary.”

No appropriate adult is on offer to young people who are subject to KIU age assessments.

No fair and proper opportunity is given to young people to know the adverse points to their age case which may weight against them and to have an opportunity to provide clarification, corrections or further information to deal with them.

The SSHD responds that whether an assessment is compliant with Merton principles does not depend on compliance with a given set of requirements, whether described as ‘core safeguards’ or otherwise. Ultimately, what matters is whether the individual decision as to age is rational and fair. What is required may vary from case to case. It was recognised in B v Merton that the level of inquiry that is appropriate cannot be generalised (§ 50, quoted earlier), and similarly, Thornton J in AB v Kent accepted that the “margin of error” required for a short-assessment “may depend on the circumstances of the assessment” (§ 46). As to the specific points itemised above, the SSHD submits that:

The purpose of the Guidance is not to establish a procedure that is comparable to a full Merton compliant assessment – which is necessarily carried out some time after the person’s arrival in the UK. Rather it is to provide immigration officers with an additional, but robust (i.e. social worker supported), basis on which to make an initial assessment of age. Further and in any event, the Guidance requires social workers to carry out their functions in accordance with the Assessing age such that they will be well aware of the risks it outlines in this respect.

The Guidance does not direct social workers to assume that individuals referred to them are “potentially clearly an adult”. In fact, they are directed to carry out a short Merton assessment only where “they are of the view that the claimant is potentially clearly an adult”. Where that threshold is not met, the social worker is not entitled to carry out a short assessment at all.

For a short age assessment of the kind contemplated in the Guidance to be Merton-compliant, an appropriate adult will not always be required, and the SSHD does not accept that there is any binding authority to that effect. The cases of FZ and ZS referred to earlier concerned full Merton assessments, and to the extent that they indicate that an appropriate adult should at least be offered to the individual, they cannot be taken as imposing the same requirement where social workers consider (on the basis of the Guidance) that a short assessment is appropriate. Both the ‘threshold’ test (“potentially clearly an adult”) under the Guidance for the carrying out of a short assessment, and the conclusion (“very clearly an adult”) that is to be reached for the individual to be assessed as an adult, operate to ensure that where there is any doubt in either of these respects, the individual will not be assessed to be an adult on the basis of a short assessment and instead will be referred to the local authority.

The SSHD does not accept that there is any separate and independent requirement for a ‘minded-to process’ to be written into the Guidance. The underlying question will be whether the assessment was carried out in a way that was rational and fair. It is submitted that whether or not a failure to put adverse matters to the individual in any particular case was a material error is a matter for case-specific determination. Nothing in the Guidance precludes such a process being undertaken, and the prescribed form of report makes specific provision for the social workers to indicate whether or not such an opportunity was provided. (In the case of MA the authors ticked the box “Yes” and added “Through clarification within the assessment”. In HT’s case the authors simply ticked the “Yes” box, but HT’s evidence is that no such process was carried out and the report itself sets out no details of any such process.)

To dispose of one point at the outset, I do not accept the Claimants’ submission that the prescribed form of age assessment report pre-empts the outcome by asking the social workers to assume that it is “very clear from the individual’s physical appearance that they are over 18 years of age, with no compelling evidence to the contrary, and therefore a less prolonged Merton compliant age assessment is justified”. The form indicates that it is “for use in cases” where that is the situation, so it is expressed to as a pre-condition rather than an assumption.

The problem as I perceive it lies, rather, 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 and ensuing case law.

Looking at the criteria set out in the Guidance quoted in § 80 above, the first situation (which I have numbered “1” in the quotation) where the social workers may become involved is where the KIU are minded to make a decision that a claimant’s physical appearance and demeanour very strongly suggest that they are 25 years of age or over.

The second situation where the social workers may become involved is (“2”) where the KIU are minded to make a decision that “there is reason to doubt the claimant’s age, but their physical appearance and demeanour does not very strongly suggest that they are 25 years of age or over”.

The following paragraph of the Guidance then requires the social workers to review that (provisional) decision and tell the KIU in writing why they agree or disagree with it. Examples are provided, including where they agree with the KIU assessment or where “there is doubt over whether the person is an adult or a child, but their physical appearance and demeanour does not very strongly suggest that they are 25 years of age or over”. Most importantly, the Guidance goes on to require a “short Merton compliant age assessment” if either:

Focussing to begin with on situation (2)/(c)(ii), the upshot will be a short form assessment conducted in circumstances where:

the KIU officer was minded to consider that the individual’s physical appearance and demeanour does not very strongly suggest that they are 25 years of age or over, and

the social workers have taken the view that the individual is only “potentially” clearly an adult.

It follows that in these circumstances, the short form assessment is embarked upon 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. 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.

It is possible that (as the SSHD submitted) an experienced social worker might be able to conclude that a person is clearly significantly over 18 based on physical appearance and demeanour even in circumstances where an immigration officer might not reliably be able to do so: making the 25-year threshold more apt for the immigration officer than for a social worker with extensive experience of dealing with children. That might be seen as consistent with the point made in the last paragraph quoted in § 61 above, from the Assessing age section on reduced local authority age assessments, about the particular expertise which local authority social workers have of working with children on a daily basis. However, the circumstances in which the Guidance provides for short form assessments are not limited to cases where the social workers can say, based on appearance or demeanour, that the individual is obviously over 18 (whether significantly or at all). Further, the unreliability of appearance/demeanour as a means of making fine judgments as to age (well recognised in the case law) would make it questionable whether a person regarded, even by an experienced social worker, as appearing to be slightly over 18 could be regarded as an obvious or clear case: especially when newly arrived after a long journey.

Moreover, such a case is unlikely to transform itself into a ‘clear’ or ‘obvious’ case – in that sense – during the course of the assessment. In the circumstances with which we are currently concerned, both the KIU officer and the social worker must have formed the view prior to the assessment that the individual’s physical appearance and demeanour do not very strongly suggest that they are 25 or older. Their perceived appearance and demeanour are unlikely to change significantly as a result of the interview. Further, the “Decision on age” section of the report form itself does not ask the social worker to revisit the question of whether the individual’s physical appearance and demeanour indicate that he/she is very clearly significantly over 18, nor even that his/her physical appearance and demeanour indicate that he/she is clearly over 18. Instead, the question is whether he/she has been “[a]ssessed to be clearly an adult”.

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 the nature and credibility of their accounts of their family history, education, journeys to the UK and life narratives generally. That is, indeed, the nature of the assessment purportedly made in relation to the present Claimants. However, such an assessment is in essence the very same type of analysis as a local authority sets out to make by conducting a ‘full’ Merton-compliant assessment: in relation to which the case law considered earlier has held it necessary for a number of safeguards to exist.

Against that, it may be said that the same types and levels of safeguards may not be required for an initial assessment of the kind with which we are presently concerned. I bear in mind also that the SSHD is seeking to address very difficult circumstances, with increasing numbers of arrivals, and the tension referred to in the case law between observing the welfare principle regarding children and the need to maintain effective immigration controls.

However – even leaving aside the point that the SSHD claims the short form assessment to be Merton-compliant and to have no qualitative difference from a local authority assessment – I am unable to accept the SSHD’s arguments in full. In particular, the requirements set out in the case law (and the SSHD’s pre-existing policies) for an appropriate adult to be present, and for a ‘minded to’ (or ‘provisional decision’) opportunity, exist because they are necessary elements of a fair and appropriate process (containing appropriate safeguards) 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. In my view, those features are equally necessary in order to make a reliable assessment of age at the initial stage (and even applying a ‘clearly an adult’ standard) of an individual whose appearance and demeanour do not already indicate that he/she is obviously an adult. That is all the more so in circumstances where the individual in question has only in the last 24 hours reached the end of a usually long and arduous journey, which is bound to impact on his/her ability to respond cogently to questioning about details of his family history, education, journey to the UK and life narrative, at least without the assistance of an appropriate adult and a careful ‘minded to’ process. The risk of adverse inferences wrongly being drawn from incorrect or incomplete answers given due to fatigue and/or misunderstanding in such circumstances is obvious.

I also do not consider that the SSHD is assisted in this context by the statement at AB § 35 that there may come a point when an experienced social worker considers they have conducted sufficient inquiries to be confident that the person in front of them is either an adult or a child. Other than in clear or obvious appearance/demeanour cases, such a point can only properly be reached where the social workers’ view (viz that sufficient enquiries have been made) has itself been based on a reliable process in the assessment interview so far. I do not consider that that can occur where the process has, from the outset, lacked features which are necessary in order to ensure the reliability of the views formed.

I do not rule out the possibility of conducting a lawful initial age assessment, in a non-obvious case – i.e. where individual’s physical appearance and demeanour do not indicate that he/she is obviously over 18 – directly after the individual arrives in the UK. However, in my view it is inconsistent with the principles set out in the case law, including the need to conduct a fair and careful assessment, to seek to assess age in a non-obvious case (in the sense I have just indicated) in circumstances where an individual who has just arrived at the UK and been detained (i) does not have the support of an appropriate adult and (ii) is not given a ‘minded to’ opportunity.

The position in situation (2)/(c)(i) is in my view similar, even if arguably slightly less clear. Here, the KIU officer is minded to form the view that the claimant’s physical appearance and demeanour very strongly suggests that they are 25 years of age or over, but the social workers (whilst considering the claimant still to be ‘potentially’ clearly an adult) disagree. That disagreement in my view has the result that the case can no longer necessarily be regarded as a clear one in the sense referred to in B v Merton, FZ v Croydon, K v Milton Keynes or Assessing age. As a result, the considerations set out in §§ 104-111 again apply, or (at least) they apply save in the subset of cases where the social worker does consider the individual to be obviously an adult even if not obviously over 25.

The SSHD makes the point that the Guidance does not mandate the absence of an appropriate adult, nor the lack of a ‘minded to’ process, even if both were absent in the present cases. Moreover, the Guidance requires the social workers to comply with the applicable age assessment case law and policy guidance. However, the Guidance also 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. Further, the ‘short form’ nature of the process virtually precludes any effective ‘minded to’ process. (By way of illustration, HT was told by the social workers that “An appropriate adult is not present during this short age assessment interview. The interview is usually about an hour in length”.) On that basis, and to that extent, the Guidance in my view sanctions or approves a process which is not in accordance with the law.

Further, I consider that any prolongation of detention for the purpose of an assessment which is in practice not designed to comply with Merton principles (i.e. if the SSHD’s general practice is not to provide for an appropriate adult or to direct social workers to provide a ‘minded to’ opportunity) is unlawful, even if such non-compliance is not positively mandated by the Guidance. I use the word ‘if’ in the preceding sentence because (for the reasons indicated in section (E) below) I concluded that it was unfair for the Claimants at a late stage to advance evidence purporting to show a consistent practice in this regard, and it therefore seems to me that any conclusion I reach on this aspect of the matter can only be contingent.

For completeness, I should mention that the SSHD in oral submissions drew attention to the statements in BF (Eritrea) §§ 63 and 65 that:

It is questionable, though, to what extent those statements would assist the SSHD in the present context. First, there is a policy in existence in the form of the Guidance, and the Gillick test must be applied in order to determine whether or not it is unlawful. Secondly, the Guidance purports to provide for a Merton-compliant assessment process, and it is necessary to decide whether or not that really is the case. Thirdly, even if there were no policy as to the correct approach to be taken at the SSHD’s initial age assessment stage, it would not necessarily follow that the ‘benefit of the doubt’ approach would disappear in relation to that stage (so that, for example, an immigration officer could simply proceed based on his/her view that the individual in question looked 18 or older, taking the risk of a damages claim were his/her view later to be shown to be incorrect). In the context of local authority age assessments, the Merton criteria are based on “minimum standards of inquiry and of fairness” (Merton § 36) and “natural justice and fairness” (ZS § 37). (See also Lang J’s reference in AAM v Secretary of State for the Home Department [2012] EWHC 2567 (QB) to “the minimum standards of fair procedure for carrying out of age assessments by local authorities, which have evolved out of child social work good practice and common law principles of fairness” (§93)). I would be inclined to the view that those same broad principles must equally apply to an initial assessment, even if their content may differ in the light of the context. Further, the Supreme Court in AA (Afghanistan) held that relevant duties, including in relation to initial assessments, derived from section 55:

On that basis, both common law principles and section 55 require a fair and careful process involving appropriate safeguards (even if limited to giving the benefit of the doubt in non-obvious cases) even when making an initial assessment. The Supreme Court in AA (Afghanistan) held the instructions in Assessing age to provide for such a process. The decision in BF (Eritrea) held that it was not necessary to go further and require a specific age threshold in order to give effect to the ‘benefit of the doubt’ principle. However, that conclusion does not in my view entail the proposition that the SSHD can simply dispense with the need for a fair and careful process involving appropriate safeguards and/or to the benefit of the doubt. I mention these points for completeness, because I do not understand the SSHD to argue in the present case that she is entitled to dispense with the need for a fair and careful process involving appropriate safeguards. Rather, her case is that the Guidance provides for such a process. To the extent I have indicated above, I do not consider that the current arrangements do so.

I have already addressed in section (1) above the Claimants’ contention that it was unlawful per se to seek to conduct age assessments while they remained in detention.

Aside from that point, the issues arising under this heading largely reflect those considered under section (2) above, since the SSHD’s pre-existing policies broadly reflect the position reached in the case law.

Age assessment, DSO 02/2019 and EIG § 55.9.3.1 provide, broadly speaking, for the SSHD to treat individuals as adults where:

there is credible and clear documentary evidence to that effect;

the SSHD accepts a Merton compliant local authority age assessment;

two officers of specified seniority separately assess the individual as an adult because their physical appearance and demeanour very strongly suggest that they are at least 25; or

the individual has previously claimed to be an adult and other specified circumstances exist.

As noted earlier, these policies have been carefully calibrated in order to strike a balance between the need for immigration control and the welfare of children.

The Guidance can be reconciled with these policies only on the footing that the short form assessment which it envisages can be equated to a Merton-compliant local authority assessment. I would be inclined to accept the SSHD’s point that there is no magic about the assessment being carried out by a local authority, if it otherwise had no qualitative difference from a local authority assessment. I also have seen no evidence on which to doubt the independence of the social workers whom the SSHD employs or may employ to conduct short form assessments. However, the features I have identified in §§ 104107-111 above mean that, in my view, the current form of short form assessment cannot be qualitatively equated to a Merton-compliant local authority assessment.

Further, I do not consider that the SSHD obtains assistance in this context from the section in Age assessment on reduced form local authority assessments, quoted in § 61 above. That section suggests that for local authority social workers with experience of working with children on a daily basis, a reduced assessment (i.e., as the quotation indicates, a statement that a full Merton assessment is not required) can be justified where the local authority assesses “that it is very clear from the claimant’s physical appearance and demeanour that they are over the age of 18”. Even leaving aside any issue as to whether that stated threshold is consistent with the case law discussed earlier (as to which it is not necessary to express a view), and even assuming for present purposes that the SSHD’s contracted social workers do have particular expertise gained from working with children on a daily basis, there remains the problem that the Guidance provides for short form assessments 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”: see §§ 100-107 above.

It follows that the Guidance is to that extent inconsistent with the pre-existing polices as currently framed; and it does not purport to override, or set out a reasoned basis for departure from, those policies (which, as noted earlier, reflect the carefully calibrated approach approved in R (AA) Afghanistan) as complying with the SSHD’s duties under BCIA 2009 section 55).

The Claimants applied, by notice dated 6 October 2021, for permission to rely on additional evidence, namely:

a report of Dr Mohammad Kahkhi on HT's identity documents, dated 23 June 2021;

a witness statement of Martin Bridger, dated 6 October 2021;

a witness statement of Edward Taylor, dated 6 October 2021;

a second witness statement of HT, dated 6 October 2021;

a second witness statement of MA, dated 6 October 2021; and

a witness statement of Judith Dennis, dated 6 October 2021.

The orders of Mr Justice Foxton dated 11 May 2021 (granting permission to apply) directed the Defendants and Interested Party to file and serve their detailed grounds of defence within 35 days, i.e. by 15 June 2021. The order provided for any application from the Claimants to rely upon evidence in reply to be made within 21 days of the filing of the Defendants’ detailed grounds.

The Defendants' detailed grounds were not filed in compliance with that direction, and the SSHD made four applications for extensions of time: on 14 June 2021, requesting an extension to 6 July 2021; on 6 July 2021 requesting an extension to 20 July 2021; on 20 July 2021 requesting an extension to 2 August 2021; and on 17 August 2021 requesting an extension until 31 August 2021. The SSHD’s detailed grounds were filed and served on 31 August 2021, out of hours, along with an application to dismiss the claims. That was the application which Lang J dismissed on 4 October 2021. Neither the First Defendant nor the Interested Party filed detailed grounds.

The Claimants submit that:

until the receipt of the SSHD’s detailed grounds, the Claimants did not have a clear position from the SSHD on these claims, which hampered any ability to prepare for the substantive hearing;

the Claimants were unable to provide a reply until they received and considered the SSHD’s detailed grounds of defence;

the draft order accompanying the SSHD’s application of 17 August 2021 reflected the agreement between the parties on case management, which would require the Interested Party to file its detailed grounds and then for the Claimants to follow with their reply evidence. However, the Interested Party never did file detailed grounds though in due course it filed a Position Note;

the Defendants and Interested Party have been on notice of the Claimants' intention to seek to file reply evidence, most recently from the Claimants' Reply dated 28 September 2021, to the position statement of the Interested Party;

the statements from the Claimant's solicitor, Martin Bridger, and Edward Taylor of Osbornes Law, provide detailed information regarding their experiences of age assessments conducted at the KIU, in terms of whether the assessments are conducted lawfully and fairly and the impact on a significant number of putative children that both witnesses have represented. The evidence demonstrates that the experiences of MA and HT are far from anomalous but part of a pattern of putative children being unlawfully assessed and detained;

the second statements from both Claimants are central to the court's assessment of the conduct of the KIU assessments and the detention of the Claimants. Mr. Bridger had previously already put forward evidence to this effect before the Court when the claims were issued; this updates the court as to the general picture on the ground. The Claimants’ further statements address their experience of detention, including at the Kent Intake Unit, as the SSHD has not accepted liability for their detention at the KIU;

the witness statement of Ms. Dennis speaks from the position of the Refugee Council, which has a presence at the Kent Intake Unit and is an organisation that was instrumental in policy formulation in respect of the Home Office’s age dispute policies, including Assessing age, DSO 02/2019 (and its predecessor DSO 14/2012), and the JWG; and

the report of Dr Mohammad Kahkhi confirms that the identify documents produced by HT in support of his age are genuine. The documents have been considered by the First Defendant in the course of their decision to accept HT's age and maintain Children Act 1989 services. The report also goes to the question of whether SSHD’s KIU assessment came to a reliable decision on HT's age: and this is relevant because the Second Defendant has continued to maintain the KIU age assessment.

I have concluded that it would not be appropriate to grant permission for this evidence to be filed, apart from the second witness statements of each of the Claimants. Insofar as the evidence expands on the Claimants’ account of their experiences of detention and the age assessment process, it is in substance not reply evidence but evidence which in principle could have formed part of their initial evidence. However, I accept the Claimants’ points that their cases needed to be issued on an urgent basis, and also that relevant documents (including detention records and the report of HT’s age assessment) were not disclosed until later in the process: it appears that the latter document was not disclosed until the permission stage, and the detention records only in response to a subject access request. As to the other evidence, in part it makes submissions and exhibits the relevant policies, but is not strictly necessary for either purpose. Otherwise, the additional evidence from Mr Bridger, Mr Taylor and Ms Dennis addresses the wider impact of the Guidance and its effect on numerous other persons in similar positions to the Claimants. That is in evidence which, insofar as it might be relevant, would have needed to be put forward at the outset or, at least, at an earlier stage in the proceedings. Its service on or about 6 October, about three weeks before the substantial judicial review hearing, did not give the SSHD an adequate or fair opportunity to respond to it. In these circumstances it would not be just to admit this evidence.

For the reasons set out above, I have concluded that the Guidance, and the age assessments carried out in relation to the Claimants, were not lawful in the particular respects I have identified; and that if and insofar as the Claimants’ detention was lengthened for the purpose of carrying out those assessments, it was unlawful. I shall hear further from counsel as to the appropriate form of relief.

I am very grateful to both parties’ counsel for their helpful written and oral submissions.