Age disputes in detention
Last updated
Last updated
In 2010 the coalition government undertook to end the detention of children in the UK. Child detention has not ended, but – following the introduction of reforms in the Immigration Act 2014 - minor children accompanied by one or both parents are now detained only for periods up to seven days. However, if certain provisions of the Illegal Migration Act 2023 come into force, the Home Office will theoretically have the power to detain children who are deemed to have entered the UK unlawfully (unaccompanied or otherwise) indefinitely (see also ).
Each year a number of unaccompanied children enter the UK, usually to seek asylum. These children may have been separated from their parents during a journey from their country of origin, or may have travelled to the UK on their own. Unaccompanied children can be subjected to immigration detention if the Home Office believes - on the basis of their appearance or demeanour - that they are ‘significantly over 18 years old’ and the child or young person cannot prove otherwise. The Home Office is allowed to treat them as an adult unless challenged, and if they are challenged these are what are referred to as ‘age dispute cases’.
The Nationality and Borders Act 2022 (‘NABA 2022’) provided the Home Office with much greater power and oversight over age assessments than before. Prior to NABA 2022, local authorities completed ‘Merton compliant’ age assessments. Merton Compliance takes it name from an immigration case [1] in which the High Court stated that local authority “cannot simply adopt a decision made by the Home Office” and outlined a number of criteria for a lawful assessment. To be “Merton compliant”, an assessment should be holistic and not made based solely on appearance but take into account (amongst other factors) the child's history in their home country, education and cultural information.
NABA 2022 enabled the new “National Age Assessment Board”, which consists of social workers employed by the Home Office, to complete age assessments if the local authority chooses to transfer the age assessment to the Home Office or if the Home Office notifies the local authority in writing that it doubts a person’s age as a child. The National Age Assessment Board can also carry out age assessments directly for those not cared for by the local authority or at any point before the local authority has referred the case or provided its own age assessment to the Home Office.
Local authorities do not have to refer cases to the National Age Assessment Board but can choose to do so. They can also carry out the age assessment themselves or confirm to the Home Office that they are satisfied that the individual’s age is as claimed. Under NABA 2022, the Home Office can override the local authority’s age assessment and conduct its own. Furthermore, if the local authority decides not to carry out an age assessment or decides to conduct its own, it must provide required evidence for the Home Office to consider the decision. The National Age Assessment Board’s decision only binds the Home Office (including immigration officers) and not the local authority who can continue to treat the individual as a child. If this happens, young people deemed to be children by the local authority could be detained by the Home Office. Such a scenario would be massively concerning and arguably unlawful for other reasons.
Home Office guidance on age assessments requires all those who do not look significantly older than 18 and who say they are children to be treated as a child in the first instance - meaning that they must not be detained - until a careful assessment of their age has been completed. The Home Office may detain a young person who says they are a child if there is credible documentary evidence that the young person is over 18 years old and therefore an adult, or if at any point the young person has been determined to be an adult via a ‘Merton compliant’ age assessment. The Home Office may also detain an individual if two Home Office members of staff of a particular grade or over have independently concluded that their physical appearance and demeanour very strongly suggests they are significantly older than 18 and there is little or no supporting evidence for their claimed age. Home Office guidance therefore gives immigration officers significant leeway in determining the age of a child or young person, in what must be viewed as an entirely subjective decision. [2]
In the case of in R (BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38, the Supreme Court ruled that the Home Office’s initial age assessment policy of treating individuals as adults where their physical appearance and demeanour very strongly indicated that they were significantly over 18 years of age was lawful.
In a briefing note on the plans to remove people to Rwanda and age disputes, The Refugee and Migrants Consortium explain the repercussions and far-reaching implications for children impacted:
“There are no safeguards in place for children who say they are children but are still treated as adults by the Home Office, which is a rising area of concern… RMCC members regularly see children as young as 14 treated as adults by the Home Office and placed in immigration detention or alone in adult accommodation at significant risk.”
Determining age on the basis of appearance is subjective, and quasi-medical assessments have a wide margin of error and have been discredited. Despite this, NABA 2022 allows the Home Office to make regulations for “scientific” age assessment methods and for a decision-maker to make adverse credibility findings against those who refuse to undergo these methods “without good reason.” Further, section 58 of the Illegal Migration Act 2023 allows for an automatic assumption of adulthood if the person refuses to consent to a scientific method to determine their age. This will likely mean many children will wrongly be automatically declared as adults.
These failings are exacerbated due to the fact that separated children arriving in the UK may come from countries where precise age is not considered important, or lack any documentation, or have forged documentation to assist with their journey. Notwithstanding the impact of trauma and language barriers.
The consequences of being treated as an adult and held in immigration detention are unimaginable and unjustifiable. Children suffer the physical and emotional consequences of being detained as well as being unable to access education and support from local authority social services.
The Refugee Council Age Dispute Project works with separated children whose age is not accepted by the Home Office to help them get out of detention and receive legal advice and support [4].
R (B) v Merton [2003] EWHC 1689 (Admin)
Home Office, (2023), Assessing Age. v6.0. Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1140168/Assessing_age_March_2023.pdf
Refugee Council and Migrant’s Children Consortium, Briefing Note on Rwanda and Age Disputes. p.4. Available at https://www.refugeecouncil.org.uk/information/resources/rmcc-briefing-rwanda-age-disputes-june-2022. See also Judith Dennis, (2012), Not a minor offence: unaccompanied children locked up as part of the asylum system. Available at http://www.refugeecouncil.org.uk/assets/0002/5945/Not_a_minor_offence_2012.pdf
