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

Policy guidance is unlawful under the Gillick principle only where its normative direction contradicts the legal duty of its addressees. The court compares the underlying rule with the guidance, not with a prediction that officials may make factual errors. Common law does not generally require a policymaker to eliminate the risk of misapplication or to amplify a clear statutory rule.

An initial age-assessment policy may therefore require officials to form their best judgment while giving claimants the benefit of the doubt and applying suitable safeguards. The possibility that a child may mistakenly be classified as an adult and detained does not itself invalidate the policy. Principles concerning access to courts and systemic procedural unfairness do not establish a broader test based on avoidable risk.

BF, an Eritrean national, claimed asylum as an unaccompanied 16-year-old. Immigration officers applied criterion C of the Secretary of State’s age-assessment policy and treated him as an adult because his appearance and demeanour very strongly suggested that he was significantly over 18. He was consequently detained. A later independent assessment concluded that he had been a child when he arrived.

The Upper Tribunal dismissed BF’s judicial review challenge to criterion C. The Court of Appeal allowed his appeal in [2019] EWCA Civ 872, holding that the policy created an avoidable real risk that more than a minimal number of children would be detained as adults. The Secretary of State appealed.

The central questions were whether that risk-based approach was legally correct and whether criterion C, read within the policy as a whole, was unlawful.

1. Appeal allowed unanimously. Lord Sales and Lord Burnett delivered the joint judgment, with which Lord Reed, Lord Lloyd-Jones and Lord Briggs agreed. Criterion C and the relevant policies were lawful at all material times.

2. The principal common-law obligation was the one explained in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. It requires a comparison between two normative statements: the addressee’s underlying legal duty and the direction contained in the policy. Guidance is unlawful where the latter contradicts the former. The obligation does not require a policy to eliminate the factual possibility that an official may misunderstand the law or make an erroneous assessment. Access to the courts supplies the ordinary remedy for breach of legal duty.

3. The statutory scheme required immigration officers to distinguish adults from unaccompanied children as best they could from the available evidence. Criterion C gave the claimant the benefit of the doubt by permitting adult treatment only where appearance and demeanour very strongly suggested that the person was significantly over 18. It also required independent agreement by two officers of specified seniority. The guidance reinforced rather than contradicted the statutory duties.

4. The policy had been formulated with regard to the need to safeguard and promote children’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009. The equivalent policy had already been held compliant with that provision in R (AA (Afghanistan)) v Secretary of State for the Home Department [2013] UKSC 49. The risk of an erroneous assessment could be minimised but never entirely eliminated. Neither section 55 nor the common law required the Secretary of State to substitute an artificial threshold of 23 or 25 years for Parliament’s threshold of 18.

5. There was no general common-law duty to issue a policy supplementing the clear rule in Schedule 2 to the Immigration Act 1971. Lumba v Secretary of State for the Home Department [2011] UKSC 12 concerned policies governing the exercise of a general statutory discretion and did not establish such a duty in relation to a non-discretionary statutory rule.

6. The Court of Appeal’s test was erroneous. R (UNISON) v Lord Chancellor [2017] UKSC 51 concerns unreasonable impediments to access to courts. It could not be combined with the distinct jurisprudence on inherent systemic unfairness to create a test asking whether better drafting could avoid a real risk of unlawful outcomes. Nor did the prospective Convention-compatibility test in In re Northern Ireland Human Rights Commission’s Application for Judicial Review [2018] UKSC 27 support that approach.

7. The Convention authorities supplied no alternative basis for invalidating the policy. The article 3 protective obligation was not engaged. Article 5 did not require an age-assessment policy eliminating the possibility of error, and detention following a genuine assessment under a clear and legitimate statutory distinction was not arbitrary.

1. United Kingdom Supreme Court: In [2021] UKSC 38, the court unanimously allowed the Secretary of State’s appeal and held that criterion C was lawful at all material times.

2. Court of Appeal: In [2019] EWCA Civ 872, the court allowed BF’s appeal. It unanimously held the first version of the policy unlawful and, by a majority, held the second version unlawful.

3. Upper Tribunal: On 31 July 2017, the tribunal dismissed BF’s challenge to criterion C.