MA (R on the application of) v COVENTRY CITY COUNCIL

An initial age assessment may be conducted while a newly arrived person remains detained for immigration processing. Detention for that purpose is lawful only if the assessment is conducted within the ordinary detention period and complies with applicable legal standards.

Where appearance and demeanour do not make adulthood obvious, a fair and careful assessment requires appropriate safeguards, including the opportunity for an appropriate adult and a proper opportunity to respond to adverse provisional conclusions. A policy is unlawful if it sanctions or approves a process that lacks those safeguards. Detention prolonged solely to conduct such an unlawful assessment is unlawful.

Two unaccompanied asylum seekers challenged the Kent Intake Unit Social Worker Guidance, the short age assessments carried out under it, and their detention while the assessments were undertaken. The Secretary of State later withdrew the decisions treating both claimants as adults and accepted that their subsequent detention lacked a lawful basis. The remaining issues concerned the lawfulness of the Guidance and whether detention at the Kent Intake Unit was unlawful insofar as it was prolonged to conduct the short assessments.

The central question was whether the Guidance lawfully permitted short age assessments, conducted shortly after arrival in detention, where the individual was not plainly an adult from appearance and demeanour.

1. Detention for initial assessment. Paragraph 16(1) of Schedule 2 to the Immigration Act 1971 permits detention pending examination and a decision on leave to enter. The Secretary of State may obtain social-worker assistance and conduct a short formalised initial assessment while the person remains detained. Detention for that purpose is lawful only within the period otherwise permitted by paragraph 16(1), and only where the assessment complies with the applicable legal standards. Detention beyond that period to conduct an assessment which does not comply with those standards is unlawful (paras [94]-[95]).
2. Required safeguards. The case law permits abbreviated inquiry in clear or obvious cases. It does not permit a short assessment of a person whose appearance and demeanour do not already indicate obvious adulthood to substitute for a full assessment while omitting safeguards necessary for fairness and reliability. In such a non-obvious case, particularly immediately after a long and arduous journey, the person must have the support or opportunity of an appropriate adult and a fair opportunity to respond to adverse provisional conclusions. The benefit of the doubt remains relevant (paras [104]-[117]).
3. Unlawfulness of the Guidance. The Guidance permitted short assessments where the social workers considered the person only potentially clearly adult, including cases where the immigration officer considered that appearance and demeanour did not very strongly suggest an age of 25 or over. Its structure and prescribed form treated an appropriate adult and a minded-to process as optional, and the short procedure effectively precluded a meaningful opportunity to respond. To that extent, the Guidance sanctioned or approved a process contrary to law and was inconsistent with the Secretary of State’s existing policies (paras [109]-[124]).
4. Disposition. The Guidance and the assessments of the claimants were unlawful in the identified respects. Their detention was unlawful insofar as it was lengthened for the purpose of carrying out those assessments. The court was to hear further submissions on the appropriate relief (para [130]).

This was a first-instance judicial review decision. The judgment records that permission was granted by Foxton J on 11 May 2021 and that Lang J dismissed an application to strike out or transfer parts of the claims on 4 October 2021.