Introduction

The case of BF (Eritrea) v. Secretary of State for the Home Department ([2019] EWCA Civ 872) deliberates on the legality of the UK Home Office's policy concerning the assessment of the age of asylum seekers. BF, a national of Eritrea, presented himself to UK authorities claiming to be a minor seeking asylum. Despite contradictory evidence, he faced prolonged detention, prompting legal challenges against the Home Office's age assessment criteria.

Summary of the Judgment

The Court of Appeal examined whether the Home Office's policy, specifically paragraph 55.9.3.1 of the Enforcement Instructions and Guidance (EIG), which allows immigration officers to assess age based on physical appearance and demeanour, was lawful. The Court concluded that the policy was unlawful as it failed to account for the significant margin of error inherent in such subjective assessments, thereby creating a real risk of unlawfully detaining children as adults.

Analysis

Precedents Cited

Several key precedents influenced the judgment:

• R (B) v London Borough of Merton [2003] EWHC 1689 (Admin): Established that age determination cannot rely solely on physical appearance and requires a holistic assessment.
• R (AA (Afghanistan)) v Secretary of State for the Home Department [2013] UKSC 49: Affirmed that detaining a child who was mistakenly assessed as an adult did not breach section 55 of the Borders, Citizenship and Immigration Act 2009.
• R (Ali) v Secretary of State for the Home Department [2017] EWCA Civ 138: Held that paragraph 18B (2) prohibits detention based on age assessments that later prove incorrect, emphasizing strict liability in such cases.
• Re an Application by Northern Ireland Human Rights Commission for Judicial Review [2018] UKSC 27: Emphasized the need for clear criteria to avoid arbitrary detention.

Legal Reasoning

The Court focused on whether the Home Office's criteria for age assessment were sufficiently precise to prevent arbitrary detention of minors. Central to the judgment was criterion C, which allowed detention if an individual's appearance and demeanour "very strongly suggests that they are significantly over 18." The Court found that terms like "significantly" were too vague, failing to communicate the inherent uncertainty and necessary margin of error in age assessments. The absence of specific guidelines on the margin of error (e.g., a five-year range) undermined the policy's compliance with legal standards, creating a substantial risk of misclassification.

Additionally, the Court considered the statistical evidence presented, indicating that approximately 23% of individuals initially assessed as adults were later identified as minors. This significant margin highlighted the policy's lack of reliability.

Impact

This judgment sets a critical precedent for the UK's asylum and immigration policies. It mandates that age assessment guidelines must explicitly account for the uncertainty in subjective evaluations to prevent unlawful detention of minors. Future policies must incorporate clear, quantifiable margins of error and robust safeguards to ensure that children are not wrongfully detained.

Moreover, the decision underscores the necessity for precise legal language in policy documents, ensuring that guidelines are not open to broad interpretation that could jeopardize individual rights.

Complex Concepts Simplified

Merton-Compliant Assessment

A Merton-compliant assessment refers to a structured approach for determining an individual's age, considering multiple factors beyond physical appearance, such as background, family circumstances, education, and personal history. Originating from the Merton case, this method aims to provide a comprehensive evaluation to minimize errors in age determination.

Paragraph 55.9.3.1 of the EIG

This paragraph provides the Home Office's guidelines for assessing the age of asylum seekers. It outlines criteria under which a person claiming to be a minor may be treated as an adult, primarily based on subjective assessments of physical appearance and demeanour.

Margin of Error

The margin of error refers to the acceptable range within which an age assessment can be considered reliable. Given the subjective nature of visual assessments, a margin (e.g., ±5 years) acknowledges the potential for significant inaccuracies, ensuring that policies do not unjustly classify minors as adults.

Conclusion

The Court of Appeal's decision in BF (Eritrea) v. Secretary of State for the Home Department reinforces the necessity for clarity and precision in policies governing age assessments of asylum seekers. By highlighting the unlawfulness of vague criteria that fail to consider the inherent uncertainties in subjective evaluations, the judgment safeguards the rights of minors against arbitrary detention. This case serves as a pivotal reference point for future legal challenges and policy formulations, emphasizing the importance of protecting vulnerable populations within the immigration system.