Introduction

The case of BF (Eritrea) v. Secretary of State for the Home Department ([2021] UKSC 38) addresses the legality of policy guidance issued by the UK Home Department concerning the age assessment of asylum seekers. BF, an Eritrean national, entered the UK illegally as an unaccompanied minor claiming asylum. His age was initially assessed as that of an adult based on appearance and demeanour, leading to his detention. Subsequent more detailed assessments confirmed he was under 18. BF challenged the policy, specifically Criterion C, arguing it unlawfully allowed for the detention of minors.

Summary of the Judgment

The UK Supreme Court delivered a unanimous decision to allow the appeal by the Secretary of State, effectively upholding the policy guidance known as Criterion C. The Court found that Criterion C, which allows immigration officers to assess an asylum seeker as an adult based on physical appearance and demeanour when no other credible evidence of age exists, was lawful. The Court rejected BF's arguments that the policy posed a significant risk of unlawfully detaining minors and did not comply with statutory obligations.

Analysis

Precedents Cited

The judgment referred to several key precedents, including:

• R (A) v Secretary of State for the Home Department [2021] UKSC 37: Established principles governing judicial review of policy guidance.
• Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112: Addressed the scope of legal duties in policy formulation.
• R (Detention Action) v First-tier Tribunal [2015] EWCA Civ 840: Discussed systemic deficiencies in policy.
• R (UNISON) v Lord Chancellor [2017] UKSC 51: Concerned access to courts and unreasonable impediments.
• R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58: Related to obligations under the European Convention on Human Rights (ECHR).

However, the Supreme Court distinguished these cases, particularly noting that the principles from UNISON and Munjaz did not apply directly to the present case's context of age assessment and detention policies.

Legal Reasoning

The Court analyzed whether the Secretary of State’s Criterion C encouraged or permitted unlawful conduct by immigration officers. It concluded that Criterion C did not contravene the Ministers' duties under Gillick or the statutory framework established by the Immigration Act 1971 and subsequent amendments. The policy allowed immigration officers to assess age based on reasonable judgments of appearance and demeanour, with safeguards including the requirement of a second independent officer’s assessment to minimize errors.

The majority held that the policy did not create a real risk of unlawfully detaining minors beyond a minimal threshold. The Court emphasized the balance between effective immigration control and safeguarding the rights of vulnerable individuals, affirming that the existing policy framework appropriately managed this balance.

Impact

The judgment reinforces the legality of the UK Home Department's current approach to age assessment of asylum seekers. It validates the use of subjective assessments by trained officers, supplemented by procedural safeguards, in determining whether an individual should be treated as a child or an adult for immigration purposes. This decision sets a precedent for future cases, affirming that reasonable policy guidance in line with statutory obligations is permissible, even when involving complex human assessments like age determination.

Complex Concepts Simplified

Judicial Review of Policy Guidance

Judicial review is a process by which courts examine the legality of decisions or policies made by public bodies. In this case, BF challenged the Home Department's policy on age assessment, arguing it was unlawful.

Criterion C

Criterion C is a component of the Home Department's policy that allows immigration officers to assess an asylum seeker's age based on their physical appearance and demeanour when no other credible evidence is available. If a person appears significantly over 18, they may be treated as an adult, which affects their detention and the legal processes applied to them.

Merton Assessments

Merton assessments are detailed evaluations conducted by social workers to determine the age of asylum seekers. These assessments are more comprehensive than initial assessments and can override initial judgments if discrepancies are found.

Section 55 of the Borders, Citizenship and Immigration Act 2009

This section imposes duties on the Secretary of State to safeguard and promote the welfare of children in the UK, including those seeking asylum. It differentiates the treatment of minors from adults in immigration processes.

Conclusion

The Supreme Court's decision in BF v Secretary of State for the Home Department underscores the lawful framework within which the UK Home Department operates regarding the assessment of asylum seekers' ages. By upholding Criterion C, the Court affirmed that policies designed to balance effective immigration control with the protection of vulnerable populations are permissible when they adhere to statutory duties and include necessary safeguards against unlawful detention. This judgment reinforces the statutory distinction between minors and adults in the immigration context and provides clarity on the acceptable parameters for age assessments by immigration officers.