Recent case law highlights the potentially harmful consequences of asylum applicants having their ages disputed.
A number of recent court cases have highlighted the risks that face young asylum seekers who, after arriving in the UK, are unable to show how old they are, because, for example, they lack the requisite identification documents. Judgments on age might be made by Home Office officials or social workers, but if appropriate detailed assessments are not carried out, children can find themselves housed with adults or even placed in immigration detention.
One case (S, R (on the application of) v London Borough of Croydon) involved a young Iraqi who arrived, unaccompanied, in the UK in September 2016 and claimed asylum. He stated that he was 15 years old, but the Home Office took the view that his physical appearance and demeanour “very strongly suggested that he was significantly over 18 years of age”. The Home Office then accommodated him in Brigstock House, a hostel in Croydon for adult asylum seekers.
With the help of the Refugee Council, the young person requested alternative accommodation and support from Croydon children’s services, which eventually accepted that it had a duty to carry out an assessment but did not take the young person into its care pending that assessment being carried out. The young person complained of being punched by another resident at Brigstock house, and was sharing a room with adults who could be angry and aggressive towards him, leaving him feeling scared and intimidated. The case looked at whether or not Croydon should have accommodated the young person while an age assessment was pending. It was argued that Croydon should have followed both the Department for Education’s Statutory Guidance “Care of unaccompanied and trafficked children” and the Age Assessment Guidance published in October 2015 by the Association of Directors of Children’s Services (ADCS). The latter states, inter alia: “You will need to plan for suitable accommodation before, during and after the assessment… Other than in exceptional circumstances, children and young people will be looked after under Section 20 of the Children Act 1989 whilst the age assessment process continues…”
Both pieces of guidance are clear: where a person’s age is in doubt, they must be treated as a child unless, and until, a full age assessment shows the person to be an adult. The ADCS guidance also supported the young person’s claim that Brigstock House is unsuitable for children, as it clearly states that children should not be placed with unknown adults. While the judge did not decide whether Croydon was obliged to follow the ADCS guidance unless it had cogent reason to depart from it, the judgment makes clear that it was “relevant to any consideration of whether the defendant had cogent reasons for departing from the statutory guidance”, in part because of “the expertise of its authors”.
Risk of detention
In another case, a teenager from Sudan, who arrived in the UK in the back of a lorry, was placed in immigration detention because the officer said he “reasonably believed” he was older than 18. Before being detained, he was assessed by Wolverhampton City Council social services. Shortly after he was placed in immigration detention, social workers completed a lawful age assessment and concluded that he was a child, but the Home Office continued to detain him on the basis of a visual assessment that he was an adult. Only when High Court proceedings were issued did the Home Office release him into the care of social services. The Court of Appeal upheld the High Court judgment of last year that someone’s age is a matter of “objective fact” and cannot be based on physical appearance or demeanour.
Coram Children’s Legal Centre has long highlighted the problems facing children who arrive alone in the UK and who are regularly disbelieved about how old they are. They can spend years without access to education or appropriate support, or end up at risk in unsupervised accommodation with adults or in adult immigration detention centres with many cases going unchallenged. It is hoped that this case will result in a change to the Home Office’s long-standing policy of assessing age based on visual assessment, and that fewer children are placed in potentially harmful situations.
Implications for practice
- Age assessment is a complex area and it is impossible to judge the age of a child through visual assessment alone.
- Social workers should refer to the Department for Education’s Statutory Guidance “Care of unaccompanied and trafficked children” and the Association of Directors of Children’s Services’ “Age Assessment Guidance” for detailed guidance on age assessments.
- If a local authority has decided to assess the age of a child, the child should be looked after under Section 20 of the Children Act 1989 during the age assessment process
For further information contact our Migrant Children’s Project
This article appeared in Children and Young People Now as part of its monthly Legal Update.
