Affirmation of Policy Compliance under Gillick: Lawfulness of KIU Guidance in Age Assessments

Introduction

The case of MA & Anor v Secretary of State for the Home Department ([2022] EWCA Civ 1663) addresses the legality of the Home Department's guidance ("KIU Guidance") concerning the age assessment of unaccompanied asylum seekers detained at the Kent Intake Unit (KIU) in Dover. This appeal was initiated by MA, a Kuwaiti Bidoon, and HT, an Iranian national, who challenged the lawfulness of the KIU Guidance and the subsequent age assessments that led to their detention.

The central issues revolve around whether the KIU Guidance complies with established legal principles, particularly the Gillick principle, and whether the age assessments conducted were in line with the Merton standards. The initial judgment by Henshaw J deemed the guidance unlawful, prompting an appeal that ultimately overturned this decision.

Summary of the Judgment

The Court of Appeal reviewed the lawfulness of the KIU Guidance issued by the Secretary of State for the Home Department (SSHD) regarding age assessments of unaccompanied asylum seekers. The initial judgment had found the guidance unlawful, particularly criticizing the absence of an "appropriate adult" and a "minded to" process in age assessments.

Upon appeal, the Court of Appeal considered whether the KIU Guidance authorized unlawful conduct under the framework established 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. The appellate court concluded that the KIU Guidance did not mandate unlawful actions and that any procedural shortcomings were operational failures rather than indicative of the guidance's unlawfulness. Consequently, the declaration of unlawfulness was set aside.

Analysis

Precedents Cited

The judgment extensively references several key precedents:

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112: Established principles regarding the lawful exercise of discretion by public authorities.
R(A) v Secretary of State for the Home Department [2021] UKSC 37: Clarified the application of the Gillick principle, emphasizing that policies can only be deemed unlawful if they actively sanction or authorize unlawful conduct.
BF(Eritrea) v Secretary of State for the Home Department [2021] UKSC 38: Addressed the lawfulness of specific guidance criteria, ultimately reversing a previous Court of Appeal decision by reaffirming that policies must not authorize unlawful actions.
Merton Cases:
- R(B) v London Borough of Merton [2003] EWHC 1689 (Admin): Provided guidance on fair age assessments, emphasizing that decisions should not rely solely on physical appearance or demeanor.
- R(FZ) v London Borough of Croydon [2011] EWCA Civ 59 and R(ZS) v Secretary of State for the Home Department [2015] EWCA Civ 1137: Further developed the principles from Merton, establishing "Merton compliant assessments" as a standard for age assessments.

These precedents collectively informed the Court of Appeal’s assessment of whether the KIU Guidance effectively authorized unlawful conduct or merely contained operational shortcomings.

Legal Reasoning

The Court of Appeal focused on interpreting the KIU Guidance within the framework provided by the aforementioned precedents. Central to this was the application of the Gillick principle, which dictates that policies should not authorize unlawful conduct.

The appellate court examined whether the KIU Guidance explicitly or implicitly required social workers and immigration officers to conduct age assessments in a manner that conflicted with legal standards. It concluded that the guidance did not mandate the absence of an appropriate adult or the use of a "minded to" process. Instead, it emphasized adherence to existing case law and policies, allowing social workers discretion to ensure assessments were fair and compliant.

The Court also addressed the judge’s original reliance on the assessment proforma, clarifying that the form served merely as a record-keeping tool and did not constitute a directive that could render the guidance unlawful. By distinguishing between administrative records and policy directives, the court underscored that operational failures do not inherently indicate policy unlawfulness.

Impact

This judgment reinforces the principle that policy guidance must be assessed based on whether it authorizes unlawful conduct, not merely on operational shortcomings in its application. By upholding the lawfulness of the KIU Guidance, the Court of Appeal sets a precedent that public authorities have the discretion to create policies that guide but do not prescribe every operational detail, provided they uphold legal standards.

Future cases involving the lawfulness of policy guidance will likely refer to this judgment to determine whether guidance documents cross the threshold into authorizing unlawful actions. Additionally, the affirmation of the KIU Guidance's lawfulness may influence how similar age assessments are conducted, ensuring that they remain compliant with legal principles while allowing for practical operational flexibility.

Complex Concepts Simplified

To better understand the judgment, it is essential to clarify some complex legal concepts:

Gillick Principle: Originating from the case Gillick v West Norfolk and Wisbech Area Health Authority, this principle dictates that public authorities must not issue policies that encourage or permit unlawful conduct. Policies should be reasonable and within the bounds of legal discretion.
Merton Compliant Assessments: Derived from the R(B) v London Borough of Merton case, these assessments ensure that age determinations of asylum seekers are fair, not solely based on appearance or demeanor, and incorporate safeguards such as the presence of an appropriate adult.
Kent Intake Unit (KIU): A short-term detention facility in Dover responsible for processing newly arrived asylum seekers, including confirming their identities and registering asylum claims.
Secretary of State for the Home Department (SSHD): The UK government minister responsible for the Home Office, overseeing immigration, security, and law and order.

Conclusion

The Court of Appeal's decision in MA & Anor v Secretary of State for the Home Department serves as a pivotal affirmation of the boundaries within which public authorities must operate when issuing policy guidance. By upholding the lawfulness of the KIU Guidance, the court emphasized that as long as policies do not actively authorize unlawful conduct, they fall within the discretionary powers of public authorities.

This judgment underscores the necessity for policies to align with established legal principles without necessitating exhaustive procedural directives. It also highlights the importance of operational adherence to guidance to prevent unlawful practices, thereby ensuring that individual rights are safeguarded within the framework of immigration control.

Ultimately, the decision reinforces the judiciary's role in delineating the scope of lawful policy-making, ensuring that public authority guidelines support rather than undermine legal standards.