R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38

The question was whether Home Office age-assessment guidance, as it stood during the period in issue, directed officers to act unlawfully. A mistake about someone’s age could lead to a child being detained under rules for adults. The Supreme Court distinguished that individual risk from a direction in the policy itself.

The facts and the policy

BF claimed asylum as a child and had no documents establishing age. Officers initially assessed BF as an adult. The proceedings before the Supreme Court concerned the general guidance they applied, rather than a final determination of BF’s age.

The guidance was set out in the Enforcement Instructions and Guidance and in an instruction called Assessing Age. A person claiming to be under 18 would be accepted as a child unless a stated exception applied. Criterion C applied where there was no other credible evidence of age. It required that physical appearance and demeanour very strongly suggested that the person was significantly over 18. A second officer, of at least chief immigration officer grade, had to make an independent assessment and agree. The guidance stressed the benefit of the doubt, the welfare duty in section 55 of the Borders, Citizenship and Immigration Act 2009, and the serious consequences of detaining a child. It was accepted that a full Merton assessment could not be obtained at the moment of first contact. Age assessment from appearance alone is uncertain; paediatric guidance referred to in the policy put the margin of error at as much as five years either side.

The decisions below

The Upper Tribunal dismissed BF’s claim that criterion C was unlawful. The Court of Appeal allowed his appeal in respect of both the guidance applied before the July 2014 changes to the detention legislation and the later version. Underhill LJ, with whom Baker LJ agreed, held that the policy had to remove the risk of a child being treated as an adult and detained. In substance, officers should have been directed to treat a claimant as 18 or over only if they thought he looked about 23, or possibly 25, or more. Simon LJ agreed about the earlier guidance but considered the fuller later version lawful. The Secretary of State amended criterion C so that it referred to appearance and demeanour very strongly suggesting that the person was 25 or over, without prejudice to her appeal.

Why the Supreme Court held the policy lawful

Lord Sales and Lord Burnett gave the judgment, with which Lord Reed, Lord Lloyd-Jones and Lord Briggs agreed. The lawfulness of policy guidance depends on the obligation owed by the person who issues it. The principal obligation, drawn from Gillick, is not to direct officials to act contrary to their legal duty. That requires a comparison between the legal rule and the direction in the policy. It is not a duty to write guidance that eliminates the risk of the law being misapplied in a particular case.

Different detention regimes applied to adults and to unaccompanied children. For many years Home Office policy had been not to detain unaccompanied children save in very limited circumstances. From 28 July 2014, Schedule 2 to the Immigration Act 1971 itself restricted the place and duration of detention of an unaccompanied child. Following the Court of Appeal’s decision in Ali, it was common ground that under those provisions age is a precedent fact, so detention of a person who is in fact a child under the wider adult powers is unlawful even if officers reasonably believed him to be an adult. Treating an adult as a child would equally defeat the purpose of effective immigration control and burden local authorities with services intended for children. Officers therefore had to distinguish the two categories as best they could on the evidence available when they first encountered the claimant.

Criterion C did not contradict that duty. It told officers to allow a wide benefit of the doubt and to treat someone as an adult only where appearance and demeanour very strongly suggested that he was significantly over 18, and only with the agreement of a second senior officer. The court accepted that the guidance complied with the Secretary of State’s duty under section 55. It was not suggested that section 55 required the higher age threshold adopted by the Court of Appeal. There was also no common-law duty to publish any supplementary policy. The Secretary of State could simply have directed attention to the statutory rule. It would be inconsistent to hold that, having chosen to give guidance which favoured the claimant, she then came under a duty to replace the age of 18 with 23 or 25 so as to remove every possibility of error. Such a direction would itself have risked undermining Parliament’s rule and would have produced many erroneous classifications of adults as children.

The test used by the Court of Appeal — whether the guidance created a real risk of more than a minimal number of children being detained, or a risk that better formulation could avoid — was therefore wrong. It turned a possible mistake of fact into an alleged direction to act unlawfully, and it drew on authorities about access to court and systemic unfairness which did not govern this case. Nothing in the policy prevented an asylum seeker from asking a court to determine his age and the lawfulness of any detention. Article 5 of the European Convention on Human Rights did not require the policy favoured by the Court of Appeal. The Supreme Court had already held that section 55 is compatible with article 5 and that detention in accordance with this guidance is likewise compatible.

Verdict: The Supreme Court unanimously allowed the Home Secretary’s appeal. The versions of criterion C before the Court were lawful. This did not resolve BF’s separate challenge concerning detention or establish the correctness of a particular age assessment.

Source: R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38