Directors give partial backing to proposed asylum reforms for unaccompanied children

The Association of Directors of Children’s Services (ADCS) has given partial backing to the government’s proposed reforms to the asylum system for unaccompanied children, amid substantial opposition from social work groups and charities.

When they were launched for consultation in March, the proposals were criticised as undermining social workers’ roles and increasing the chances of children being treated as adults and put at risk.

However, in its response to the consultation, which closed last week, the ADCS backed key elements of the proposals.

The association said it supported plans to introduce a National Age Assessment Board (NAAB), which would set out the criteria, process and requirements for age assessments, and may also carry out assessments itself in certain circumstances.

In its response, the ADCS said that, while it supported the NAAB, it would need to be “child-centred” rather than have an “immigration focus”, and that “social work expertise” would be essential to its effective running.

Proposal for ‘scientific assessments’

It also said that key questions needed resolving, including how it would be funded and under what circumstances it could compel local authorities to carry out age assessments or reverse decisions they had made.

ADCS also supported the introduction of codified age assessment criteria, as well as the government’s proposal to allow scientific methods to be used “subject to agreement and thorough research evidence as to their effectiveness”.

Currently, the UK does not use or commission dental checks or x-rays to determine age on the grounds that they can only estimate age. But, in its policy paper, the Home Office said these were widely used in other countries, a point echoed by ADCS in its response.

However, the use of scientific checks has been criticised by groups including Social Workers Without Borders and Coram Children’s Legal Centre, on the grounds they would cause confusion and error and raise ethical concerns.

‘A significantly greater risk’

The directors’ body said it also supported plans to change the law so that immigration officers carrying out initial age checks could deem someone an adult where their physical appearance and demeanour strongly suggested they were significantly over 18.

This was the criterion in place prior to a Court of Appeal ruling in 2019, in the case of BF (Eritrea) v Secretary of Stage for the Home Department. This found that the use of the term “significantly” made the criterion too vague, given the unreliability of judging age by appearance or demeanour and the principle of giving claimants the benefit of the doubt when they say they are a child.

In finding the then guidance unlawful, Lord Justice Underhill said: “In my view it follows that it creates a significantly greater risk than would otherwise arise of children being unlawfully detained as adults.”

On the back of the ruling, the Home Office changed the guidance to say that a claimant could be deemed an adult if their appearance or demeanour strongly suggested they were over 25.

The Home Office also appealed the decision, with the case heard by the Supreme Court in March and the judgment due shortly.

Reversing impact of legal case

However, in its immigration policy paper, the Home Office said it would legislate to enable immigration officials and other non-social workers to carry out “reasonable initial assessments of age”, including exploring changing the criterion back to “significantly over 18”.

In its response to the consultation, the ADCS said: “Secondary legislation should make clear that initial age assessments conducted by immigration officers should revert the pre-BF(Eritrea) judgement ie an individual shall be treated as an adult where their physical appearance and demeanour is such that they are significant over 18.

“This is probably more important than ever given that the UK no longer has access to EuroDac information for making enquiries of other European countries for them to share any documentary evidence they may have to support of an individual’s age assessments.”

ADCS stressed it was also important that immigration officials were “thoroughly trained” for this role, to “reduce the volume of legal challenge”.

‘Circumventing case law’

However, the Refugee Council said this would be the wrong approach.

Policy manager Judith Dennis said: “In May 2019 the Court of Appeal quite rightly ruled that the policy that allowed Immigration officers to decide someone is adult does not properly identify the margin of error inherent in the conduct of initial age assessments, therefore creating a significantly greater risk than would otherwise arise of children being unlawfully detained as adults. The government should not seek to circumvent this caselaw by legislating, simply because it doesn’t like what the court says.”

The government’s plans would also see those who had passed through safe countries on their way to the UK, have their claims for asylum deemed inadmissible. In such cases, the person would either be returned to the safe country they passed through or another safe country, or be given “temporary protection” status, with less generous entitlements, if they could not be returned.

ADCS said it opposed this in relation to unaccompanied children, on the grounds that they may be unaware of the safe countries they had passed through on their way to the UK.

ADCS added that temporary protection leave could have “a deleterious impact on children and young people” and would also make it “extremely challenging” for local authorities to plan care and support for them.

The government will set out how it proposes to take forward the reforms, on the back of the consultation, in due course.