HBH, R (on the application of) v The Secretary of State for the Home Department & Anor

A methodology for assessing whether an asylum-seeker is under 18 is unlawful where it treats appearance and demeanour as determinative of age for prosecution purposes. The same safeguards are required whether age is assessed for detention or prosecution. Appearance and demeanour may support a provisional view in an obvious case, but they are an unsafe standalone basis where age is uncertain, particularly near 18 or where the decision-maker is unfamiliar with the person’s cultural and educational background. A lawful assessment requires consideration of relevant personal background and procedural fairness, including an opportunity to address adverse features and adequate reasons.

HBH claimed to have been 17 when he arrived in the United Kingdom and was prosecuted for an immigration offence after immigration officers assessed him as at least 18. He was convicted and sentenced, but was later assessed by a paediatrician and social workers to be 17. The Secretary of State conceded that the same age-assessment methodology was unlawful for detention purposes, but disputed its unlawfulness when used in deciding whether to prosecute. The central issue was whether appearance and demeanour could lawfully provide the determinative basis for that prosecution decision.

1. Declaration granted. The methodology used to assess an asylum-seeker’s age for deciding whether to prosecute for an immigration offence—whether appearance and demeanour strongly supported the claim to be under 18—was unlawful.
2. There was no rational distinction between assessing age for detention and assessing age for prosecution. An incorrect age assessment could affect the criminal process before the person’s true age was discovered, including before an admission or finding of guilt. The possibility of later correction did not remove the risk of inappropriate prosecution.
3. The court accorded substantial deference to the Secretary of State in formulating policy, but the policy remained subject to review for legality and rationality. The Secretary of State’s conceded methodology was flawed in both contexts because it failed to balance immigration control against protecting genuine children from inappropriate treatment.
4. The guidance in R (on the application of B) v Merton London Borough Council [2003] 4 All ER 280 was not directly binding in the immigration context, but its principles were not context-specific. Appearance and demeanour alone could justify only a provisional view, and only in an obvious case could they be sufficient. Relevant family, educational and personal background had to be considered against cultural and ethnic context. Procedural fairness also required that adverse features be put to the person and that adequate reasons be given.
5. Whether the declaration would ultimately lead to HBH’s conviction being set aside under section 142(2) of the Magistrates’ Courts Act 1980 was left to the district judge. The court proceeded on the footing that such relief could not be excluded. The Secretary of State was ordered, subject to any further representations, to pay HBH’s costs. Consideration of damages was premature.

First-instance judicial review. The judgment records that permission was granted and the time for bringing the claim was extended in [2008] EWHC 446 (Admin). The claim was then determined by the Administrative Court.