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

An initial immigration age assessment may legitimately depend on appearance and demeanour where objective evidence and a full assessment are unavailable. However, detention guidance must accommodate the substantial unreliability of that exercise and give persons claiming to be children the benefit of the doubt.

Such guidance is unlawful where its formulation creates a real risk of more than a minimal number of children being unlawfully detained. The risk must arise from the guidance itself, rather than individual mistakes in applying a proper policy. Requiring an individual to appear significantly over 18 provides insufficient protection without explaining the width of the margin of error by reference to a range of ages. The appropriate range remains for the Secretary of State to determine. There is no obligation to eliminate every remote risk of an aberrant decision.

The appellant was an Eritrean asylum-seeker who claimed to be 16 when he arrived in the United Kingdom. Immigration officers assessed him as substantially over 18, and he was detained pending attempts to return him to Italy. Two local authority assessments subsequently identified him as an adult. A later assessment accepted his claimed date of birth.

The appellant challenged criterion C of the Home Office's Enforcement Instructions and Guidance. It permitted officials to treat a person claiming to be a child as an adult where appearance and demeanour very strongly suggested that the person was significantly over 18. The Equality and Human Rights Commission intervened in support of the challenge.

The Court of Appeal granted permission to pursue that policy challenge in [2016] EWCA Civ 1113. The Upper Tribunal dismissed it in the decision identified as [2017] JR/8610/2014. The present appeal concerned both the original and revised guidance, including the associated asylum instruction, Assessing Age. The central issue was whether their formulation adequately protected against unlawful child detention. The appellant's individual detention and any compensation claim were outside the appeal.

Appeal allowed by a majority of two to one. Underhill and Baker LJJ held that criterion C was unlawful in both its previous and current forms. Simon LJ dissented concerning the current guidance.

1. A full assessment complying with R (B) v London Borough of Merton could not ordinarily be obtained before an immediate detention decision. An initial assessment based on appearance and demeanour was therefore permissible in principle. It had to allow for the substantial margin of error and restrict adult treatment to cases where the claim to be a child was obviously false. Treating obvious adults as children also had real disadvantages, including pressure on local authority accommodation.

2. The governing inquiry was whether the guidance itself created a real risk of more than a minimal number of children being detained. Individual aberrant decisions under a properly formulated policy would not establish unlawfulness. The question was whether better formulation could avoid the risk inherent in the guidance.

3. The expression significantly over 18 failed to convey the unreliability of the assessment or the width of the necessary margin of error. An officer could reasonably regard an apparent age of 20 as significant, although the evidence indicated a margin of at least five years and possibly more. The guidance had to explain that margin by reference to a range of ages. The revised warnings and detailed guidance did not cure this omission. Underhill LJ considered the defect sufficient without statistical evidence; Baker LJ found substantial additional support in the statistics.

4. The restrictions in paragraph 18B of Schedule 2 to the Immigration Act 1971, as addressed in R (Ali) v Secretary of State for the Home Department, concerned actual child detention outside the permitted circumstances. They did not themselves determine whether the assessment policy was lawful or require elimination of every remote risk of error. The court left the precise age range and replacement wording to the Secretary of State. It also left open the position under the separate examination power in paragraph 16(1).

5. Baker LJ additionally considered the policy incompatible with protection against arbitrary detention and with EU requirements of clarity, predictability and accessibility, applying Policie ČR v Al Chodor. Those grounds did not command majority support. Simon LJ considered the revised guidance and its safeguards sufficient, despite the imprecision of the age threshold.

6. A declaration of unlawfulness was granted for both versions. A quashing order would add no substantial value. Suspension pending a proposed appeal was refused because it would prolong the risk of unlawful child detention and urgent interim guidance was practicable. Whether the court possessed jurisdiction to suspend the declaration was left undecided.

• Court of Appeal (Civil Division): In [2019] EWCA Civ 872 , allowed the appeal by a majority, reversing the Upper Tribunal's conclusion on the policy's lawfulness. Declared both versions of criterion C unlawful and refused suspension of the declaration.
• Court of Appeal (Civil Division): In [2016] EWCA Civ 1113 , granted permission to apply for judicial review on the single ground challenging criterion C.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Storey heard the permitted challenge on 24 May 2017 and dismissed it by a judgment promulgated on 1 August 2017, identified in the supplied text as [2017] JR/8610/2014. Permission to appeal was granted by Hickinbottom LJ on 6 August 2018.