BF (Eritrea) v Secretary of State for the Home Department

The legality of an age-assessment policy turns on its framing, not merely on occasional mistakes. An immigration officer may make an initial assessment from physical appearance and demeanour where no objective evidence or Merton-compliant assessment is immediately available. But the guidance must reflect the substantial margin of error and ensure that only claims that are obviously false lead to adult treatment and detention. A requirement that appearance and demeanour suggest a person is significantly over 18, without explaining the margin by reference to a specific age range, creates a real risk of more than a minimal number of children being unlawfully detained. Detailed safeguards do not cure that defect. The guidance was unlawful.

The appellant, an Eritrean national, claimed to be under 18 when he arrived in the United Kingdom and was detained pending possible removal. The Secretary of State’s policy generally accepted claims to be children but permitted adult treatment under criterion C where physical appearance and demeanour very strongly suggested that the person was significantly over 18.

The Upper Tribunal dismissed the appellant’s judicial review challenge. The appeal concerned whether criterion C, in the Enforcement Instructions and Guidance and the related Assessing Age instruction, was lawful in both its earlier and current forms. The central issue was whether the wording created an unacceptable systemic risk that children would be detained as adults.

By a majority, the appeal was allowed. Underhill LJ gave the leading judgment and Baker LJ agreed. Simon LJ dissented and would have dismissed the appeal.

1. Applicable threshold. A policy or guidance governing initial age assessment is unlawful if its framing creates a real risk of more than a minimal number of children being detained. The relevant risk must arise from the terms of the policy and be avoidable by better formulation. Individual aberrant mistakes made while pursuing a lawful policy do not suffice.
2. Initial assessment. Where no objective evidence is available, and an immediate detention decision is required, it is not illegitimate to require an initial assessment based primarily on appearance and demeanour. A Merton-compliant assessment cannot be made a precondition to that immediate decision. However, the benefit-of-the-doubt principle requires that only claims which are obviously false should lead to adult treatment. Obvious cases may be resolved by appearance, but borderline cases require protection against the substantial uncertainty inherent in visual assessment.
3. Defect in criterion C. The phrase “significantly over 18” was imprecise and unexplained. The evidence indicated a margin of error of at least about five years, possibly more. The guidance did not explain that margin by reference to a specific age range. That omission created a real and avoidable risk that officers would place excessive confidence in their own assessments. The revisions to the Assessing Age instruction, including detailed warnings and a second-officer assessment, did not cure the central defect.
4. Statutory position and relief. The absolute prohibition on detention established in Ali was distinct from the question whether the policy was lawfully framed. The Court declared criterion C unlawful in both its previous and current forms. It declined to make a quashing order because a declaration was sufficient. It also refused to stay the declaration, since suspension would prolong the risk of unlawful detention; revised interim guidance could be issued promptly.

Simon LJ considered that the current guidance, read as a whole, supplied sufficient safeguards and that the appellant had not shown unlawfulness.

1. Court of Appeal (Civil Division): Allowed the appeal and declared criterion C unlawful in both its previous and current forms.
2. Upper Tribunal (Immigration and Asylum Chamber): Judge Storey dismissed the judicial review claim in a judgment promulgated on 1 August 2017.