CCLC welcomes Court of Appeal ruling that Home Office young asylum seeker age dispute policy is unlawful

Published: Friday 24th May 2019

Coram Children’s Legal Centre (CCLC) has today welcomed the judgement from the Court of Appeal finding Home Office policy regarding young asylum seekers and age disputes to be unlawful.

Age disputes are a significant problem facing young migrants and Kamena Dorling of CCLC, as co-chair of the Refugee and Migrant Children’s Consortium, provided a witness statement , drawing on evidence from the Migrant Children’s Project, legal aid casework and partner organisations within the Consortium.

Many children seeking protection in the UK are unable to show how old they are as they may for example they lack the requisite identification documents. Judgments on age might be made by Home Office officials or social workers, but if detailed assessments are not carried out appropriately, children can find themselves housed with adults or even placed in immigration detention.

CCLC’s 2013 report, Happy Birthday? Disputing the age of children in the immigration system, highlighted that while there are some cases where there is genuine uncertainty over age, too many children have been unnecessarily age disputed, because of a default ‘culture of disbelief’ amongst some social care and immigration professionals.

CCLC has repeatedly highlighted its concerns to the Home Office regarding its policy allowing for a child to be treated as an adult if their ‘physical appearance / demeanour very strongly suggests that they are significantly over 18 years of age’ and detained, despite research, guidance and case law emphasising that physical appearance is not an accurate basis for the assessment of a person’s age. Within different ethnic and national groups there are wide variations in young people’s growth and ages of puberty, and young people may look and act older than they are because of their experiences in their country of origin, or difficult journey to the UK.

The UN Committee on the Rights of the Child has discussed age assessment in two of its General Comments, stressing that ‘if there is no proof of age, the child is entitled to a reliable medical and social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt’. It has outlined that age assessments ‘should not only take into account the physical appearance of the individual, but also his or her psychological maturity’.

The case involved a young Eritrean who arrived in the UK in March 2014 and said he was 16. Immigration officers believed that he was substantially over 18 and he was held in immigration detention until September 2014, and again from January to March 2015. In September 2015 an assessment carried out by two independent social workers found his date of birth to be as claimed by him on arrival.

The Court of Appeal highlighted the damaging effects of children being detained and that the detention of a child is ‘positively unlawful’. It found that the original policy at the time of detention, as well as the amended policy, regarding the assessment of the age of young asylum-seekers who claim to be under 18, as expressed in paragraph 55.9.3.1 of the Enforcement Instructions and Guidance and the relevant parts of Asylum Instruction Assessing Age “does not properly identify the margin of error inherent in the conduct of initial [age] assessments… [and] creates a significantly greater risk than would otherwise arise of children being unlawfully detained as adults.”

Kamena Dorling, who is also Coram Group Head of Policy and Public Affairs, said:  “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. The Home Office will now need to revisit its long-standing policy of assessing age based on visual assessment. CCLC looks forward to working further with the government to make sure all its policies regarding young asylum seekers safeguard children and promote their rights.”