Age Assessments
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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.
Resource Tip
The Greater Manchester Immigration Aid Unit (GMIAU) has produced a guide for young people who are being age assessed: ‘A guide to the age assessment process’: https://gmiau.org/speakingout/children/age-assessments/
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.
[1] R (B) v Merton [2003] EWHC 1689 (Admin)
[2] Home Office, (2023), Assessing Age. v6.0. Available at
