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

A public authority’s policy is unlawful for what it says or omits about the law only when it positively authorises or approves unlawful conduct. It need not provide a comprehensive statement of every legal requirement or remove every risk of operational error. The court examines the policy itself and asks whether it can be operated lawfully. Guidance directing officials to comply with relevant legislation, case law and existing policies is not rendered unlawful because decision-makers may fail to follow those requirements. An administrative form recording what occurred does not, by tick boxes or omissions, make safeguards optional. Where a compliant age assessment cannot be carried out, the assessment should not proceed and the benefit of the doubt should apply.

The Secretary of State appealed against the judgment of Henshaw J in the Administrative Court, reported at [2022] EWHC 98 (Admin). The claimants, MA and HT, challenged guidance governing short-form age assessments of newly arrived, detained, unaccompanied asylum seekers at the Kent Intake Unit.

The High Court held that the guidance was unlawful in specified respects, including its treatment of an appropriate adult and a possible minded-to process, and held that detention was unlawful insofar as it was lengthened for the assessments. The individual age-assessment complaints had been resolved. The appeal concerned whether the guidance itself was unlawful under the principles in Gillick, R(A) v Secretary of State for the Home Department and BF(Eritrea), because of what it said or omitted about the law.

1. Appeal allowed. The declaration that the KIU Guidance was unlawful was set aside. The Court of Appeal did not decide whether the safeguards identified by the judge were essential ingredients of every Merton-compliant age assessment.
2. Under the Gillick principle, as explained by the Supreme Court in R(A) v Secretary of State for the Home Department [2021] UKSC 37 and BF(Eritrea) v Secretary of State for the Home Department [2021] UKSC 38, a policy is unlawful because of what it says or omits about the law only if it positively authorises or approves unlawful conduct. The relevant inquiry compares the underlying legal obligations with the direction actually given by the policy. It is not a comparison between a normative statement and a prediction of possible official error.
3. The KIU Guidance did not purport to give a complete account of the law. It repeatedly required assessments to be carried out in accordance with the relevant case law and policies, including the Merton principles. It did not contain a positive misstatement of law, mandate the absence of an appropriate adult or a minded-to process, or suggest that those matters were optional. If a Merton-compliant assessment could not be carried out at the KIU, the social worker should not proceed, and the claimant should receive the benefit of the doubt pending a local-authority assessment.
4. There was no general common-law duty to promulgate guidance eliminating every risk that officials might misapply the law. A policy capable of lawful operation is not itself unlawful merely because it was operated unlawfully in individual cases. The judge therefore conflated the terms of the guidance with its operation.
5. The assessment proforma was not part of the substantive guidance. It was an administrative record of the assessment and evidence of its lawfulness. Its tick boxes recorded what had occurred; they did not direct the social worker to omit an interpreter or appropriate adult. The absence of a specific box for a minded-to process did not direct that such an opportunity should not be given.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed. The declaration that the KIU Guidance was unlawful was set aside.
2. High Court of Justice, King’s Bench Division, Administrative Court: Henshaw J held that the KIU Guidance and the decisions concerning the claimants’ ages were unlawful, and that detention was unlawful insofar as it was extended for the age assessments: [2022] EWHC 98 (Admin).