Home Office social worker guidance unlawful, High Court rules

Home Office guidance for social workers assessing the age of young people arriving in Kent is unlawful, the High Court has ruled.

The guidance, for practitioners employed by the Home Office at the Kent intake unit (KIU), did not provide for age assessments to be carried out with adequate safeguards for the unaccompanied claimants concerned.

Mr Justice Henshaw also found that age assessments carried out by social workers on two claimants, ‘MA’ and ‘HT’, at the KIU, in under an hour, just after they entered the country, were unlawful, because of the lack of safeguards.

These included not having an appropriate adult present or having the opportunity to know why their claimed age was being disputed by the social workers and to explain any inconsistencies in their account.

Unlawful detention

The judge also ruled unlawful the lengthening of their detention at the site to conduct the assessments. Both were assessed as adults and subsequently held in immigration detention centres for a few days. HT was subsequently accepted to be a child at the time of his claim, while MA was judged to be an adult following a detailed age assessment by Coventry council social workers.

The Home Office is planning to appeal but withdrew the guidance just before this week’s judgment; it also confirmed that the social workers it employs at the unit were no longer carrying out age assessments there.

Social workers have conducted several hundred short-form assessments under the unlawful guidance since it was published. A prisons inspectorate report last month revealed that, in the three months to 8 October last year, Home Office social workers assessed 238 people at the KIU and Frontier House in Folkestone.

In 36 cases, practitioners judged the person to be under 18 or referred them to a local authority for a full age assessment because they could not decide their age.

Home Office guidance for social workers ‘unlawful’

The KIU guidance, issued in September 2020 and updated that December, provided for social workers to provide opinions on the age of young people claiming asylum where immigration staff felt:

• their physical appearance and demeanour very strongly suggested that they were 25 years of age or over; or
• there was reason to doubt the claimant’s age, but their physical appearance and demeanour did not very strongly suggest that they were 25 years of age or over.

The 25 or over criterion reflected case law at the time on the unreliability of assessing age based on physical appearance and the resultant need to provide a wide margin for error in the claimant’s favour. However, in a judgment last year, the Supreme Court accepted the Home Office’s previous approach that a person should appear to be “significantly over 18” to be assessed as an adult (see below).

Under the KIU guidance, social workers would carry out age assessments in cases where:

• they felt the immigration staff’s view that the claimant was aged over 25 was wrong but they believed the person was “potentially clearly an adult”; or
• they believed the person was “potentially clearly an adult” but immigration staff did not feel that their appearance very strongly suggested they were over 25.

The guidance referred to social workers undertaking “short Merton compliant age assessments” in either of these circumstances, in reference to the leading case on requirements for carrying out age assessments, B v London Borough of Merton [2003].

Required safeguards

In an analysis of the case law, Mr Justice Henshaw outlined that Merton and other key cases had set out a range of safeguards required for a legally compliant assessment. These are set out in the government’s overarching guidance on assessing age (which is separate to the KIU guidance) and include having the opportunity to have an appropriate adult present and being able to explain inconsistencies and other issues leading social workers to question their credibility.

The judge said it would be possible to reduce these requirements in cases where the person was obviously an adult. However, the KIU guidance allowed for them in cases which were not obvious: where either the assessing social worker or both the social worker and immigration staff felt the person was not clearly an adult.

Mr Justice Henshaw said it was “inconsistent with the principles set out in the case law” for the guidance to allow social workers to conduct such assessments in non-obvious cases where the person did not have the support of an appropriate adult and could not respond to the reasons why their age was being disputed.

‘Age assessments cannot be done quickly’

The Refugee Council, which helped MA and HT to make their claims, said the judgment was “welcome but not surprising”.

“We are relieved that the practice of hasty decisions is no longer allowed to continue,” said chief executive Enver Solomon.

“Distinguishing between adults and children is not something that can be done quickly; it takes time and expertise to make the right decision.”

Bridget Chapman, media lead at local asylum charity the Kent Refugee Action Network, said the ruling was “excellent news”.

“We have been deeply concerned by the reports that children are being assessed immediately after arrival while they are still exhausted and traumatised by the journey.

“The consequences of getting this wrong are extremely serious and we have now seen numerous cases of children being placed in adult accommodation where their safeguarding is at risk.

“This process seems to have been designed to be deliberately harsh and we are extremely pleased that it has now been ruled unlawful.”

Lowered threshold

The Home Office is applying for permission to appeal the decision.

A spokesperson for the department said: ‘’We are disappointed by the court’s decision. The government is committed to protecting children and the vulnerable but we cannot allow asylum seeking adults claim to be children – this presents a serious safeguarding risk.”

The Home Office said it withdrew its guidance for social workers at the KIU on 14 January, five days before the judgment was issued, because there was no longer a need for social workers at the KIU to undertake abbreviated age assessments.

This was because of the Home Office’s decision to lower the threshold that its immigration officials can apply to age disputed cases, and the fact that its officials were carrying out age assessments at the unit.

An update to its overarching age assessment guidance, also on 14 January, allows a claimant to be treated as an adult if two immigration officials independently assess them as so because their physical appearance and demeanour very strongly suggests they are “significantly over 18”.

The “significantly over 18” criterion was in place up to 2019 but was then judged to be unlawful by the Court of Appeal, in the BF (Eritrea) case, because it created a real risk of children being unlawfully detained due to the uncertainty of assessing age based on appearance. As a result, the Home Office changed the guidance to state that their appearance must suggest they are “25 years of age or over”.

However, the Supreme Court overturned the ruling on appeal last year, saying the Court of Appeal had set too high a standard by seeking to remove the risk that immigration officers might make a mistake when assessing age. This allowed the Home Office to reinstate “significantly over 18”.

Concern over Home Office changes to age assessments

However, Parliament’s joint committee on human rights (JCHR) warned in a report last week that the Home Office’s decision to lower the threshold for age assessments to 18 “increases the risk of wrongly identifying a child as an adult and unlawfully detaining a child in immigration detention”.

This would mean they would not be entitled to support and accommodation under the Children Act and may be “placed into unsafe accommodation with inadequate safeguarding”, the committee warned.

In its response to the ruling, the Home Office also pointed to its planned reforms to age assessments through the current Nationality and Borders Bill. This would “widen the evidence base for social workers to consider when making assessments and lead to better informed decisions”.

This includes the introduction of ‘scientific’ measures to assess an asylum-seeking person’s age if it is in dispute, such as “examining or measuring parts of a person’s body” and “analysis of saliva, cell or other samples”.

The JCHR said it was “not convinced there was any justification for the use of scientific methods” and that they “may not improve the accuracy of decision-making when compared to a holistic assessment undertaken by a social worker”.

“A holistic assessment would avoid the use of any physical (and potentially invasive) procedures which may not be appropriate and may even cause trauma depending on the nature of the procedure and the experience of the individual concerned,” it added.

For the Refugee Council, Solomon also criticised the plan, adding: “It is disturbing that this government seeks to portray this issue as one of adults abusing the system and is coming up with quick fixes, including scientific methods, already deemed inaccurate and invasive.”

Social workers ‘focused on safeguarding’

The Home Office said social workers at the KIU were now focused on safeguarding children. This follows criticism in last month’s prisons inspectorate report on the unit that the practitioners were focused on age disputes only.

“More effective use could have been made of their skills to enhance safeguarding for all children, and potentially vulnerable adults, held at the facilities,” the inspectorate said.