“Significantly over 18” – Court of Appeal judgment

Last week, the Court of Appeal made a very important judgement on the Home Office’s policy on deciding the age of young people seeking asylum – also known as “age assessments”.

This matters because people who are accepted as being under 18 will be treated differently from those over 18 – if you are a minor, you are very unlikely to be detained. You should be supported by Social Services (rather than the asylum support system). You will have a lawyer present at your asylum substantive interview. And if you are accepted as being younger than 17.5 years old, are unaccompanied, and there are not “adequate reception arrangements” in your home country, you should not be removed from the UK if you asylum case is refused and instead should be given a temporary form of leave to remain.

Home Office policy (on detention and temporary release) says that people who are seeking asylum, and who say they are under 18 will be given the benefit of the doubt unless, among other things:

Two Home Office members of staff have separately assessed that the individual is an adult because their physical appearance and demeanour very strongly suggests that they are significantly over 18 years of age and there is little or no supporting evidence for their claimed age.

It was the meaning of “significantly over 18” that came under scrutiny in this case.

The court found that the term “significantly over 18” wasn’t clear enough.

One of the judges commented:

just how unreliable the exercise of assessing age on the basis of appearance and demeanour is and, in consequence, how wide a margin of error is required. In truth, all the work is done by the single word “significantly”. But that is a word which can be interpreted in many different ways, and its imprecision is not corrected simply by printing it in bold or underlining it. Suppose an immigration officer believes that the appearance and demeanour of a young person whom he or she is assessing very strongly suggests that they are at least 20. It would be perfectly reasonable for them, in the absence of any guidance, to regard that as “significantly” over 18; yet the evidence shows that the margin of error is at least five years and maybe more – that is, an 18-year old young person may “look” as old as 23, or perhaps 25

The court found that the wording in the policy isn’t precise enough and that there is a real risk of children being (unlawfully) detained. This makes the policy unlawful.

The Home Office have issued updated guidance in response to the judgment, which you can read here.

They respond to the court ruling in the document:

Due to a recent Court of Appeal judgment and subject to any further consultation that the Home Office engages in, it is the Home Office’s interim policy position, that for a person to be assessed as an adult in these circumstances, their physical appearance and demeanour must very strongly suggest that they are 25 years of age or over.

It is worth noting that only two of the three judges in this case agreed with the decision. The Home Office have already applied to appeal the judgment at the Supreme Court.



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