BF (Eritrea), R (on the application of) v Secretary of State for the Home Department [2021] UKSC 38 (30 July 2021)
Citation:BF (Eritrea), R (on the application of) v Secretary of State for the Home Department [2021] UKSC 38 (30 July 2021).
Subjects invoked: 76. 'Immigration'.11. 'Legal methods'.
Rule of thumb:When asylum seekers arrive in the UK without paperwork is a rough age assessment or a detailed one to be done with them? Yes, a rough age assessment is done, not a detailed one, and if they look like adults then they are sent to the adult detention centres.The Court in this case affirmed that when illegal immigrants arrive in Britain and claim to be under 18, the system of the immigration officials assessing their looks and demeanour and if they seem over 18 sending them to the adult detention centre whilst their asylum claim is being processed (akin to a prison), and if they seem younger than 18 sending them to the children’s detention centre (nicer conditions akin to a secure children’s home), is the proper interpretation of the Immigration Acts and compliant with human rights. This test system does not have to have its age upped to 23.
Background facts:
The facts of this case were BF, a national of the African country of Eritrea, arrived in the UK as an illegal immigrant who had no Visa to enter the UK. BF claimed to be a minor who was under 18 years. This led the Home Office to do their basic check of him called ‘Criterion C’, and this test was, ‘if his looks and demeanour make him seem older than 18, send him to the adult detention centre to await their asylum hearing’. The Home Office did this basic ‘criterion c’ check of BF’s age, which consisted of assessing his ‘looks and demeanour’, and an intuitive Judgment was then made by the assessor on BF’s age. The assessor decided that BF looked older than 18 and so BF was detained in tough conditions in an immigration centre for adults – fairly similar to prison conditions – until the asylum application was fully decided and heard. If it had been decided that BF looked younger than 18, he would have been held in much more favourable conditions more akin to an orphanage. BF however maintained that he was under 18. This led eventually after some time to a Merton assessment being carried out on him. There is no precise, scientific, medical method of determining someone’s age – it is always ultimately educated speculation/guesswork. However, Merton does a full and rigorous interview about family and social history, as well as a full educational test and medical assessment (blood pressure, teeth etc), and multiple people consult upon this. After this detailed ‘Merton’ assessment was carried out on BF, it was concluded that BF was indeed probably under 18 like he claimed and was not lying. This meant that he was then transferred from the prison-like conditions to the secure children’s home-like conditions. BF argued that the system of age-assessment which the Home Office used, and ultimately led in many instances to children effectively being jailed with other adults, was grossly unfair and sought to have it changed.
BF argued that the ‘criterion C’ assessment test should be changed. BF argued that the test should be, ‘if the person claim to be under 18, and their look and demeanour make them seem older than 23, send them to the adult detention centre to await their ‘Merton assessment’ and asylum hearing, but if they look 23 or younger, send them to the children detention centre to await their ‘Merton assessment’ and asylum hearing’. In other words, BF was arguing that it should be presumed immigrants are telling the truth about their age. BF argued that this protected the rights of children.
The Home Office argued that it was simply not viable based on their current budget, resources and staff level to put up every immigrant who claimed to be under 18 in the children’s detention centre – this required considerably more finances and resources than the adult centres. They argued that the current test and system to determine the age of asylum seekers should remain in place – whereby if they look and appear over 18 send them to the adult detention centre, and if not, send them to the juvenile one. They argued that this was the proper interpretation of the Immigration Acts set out by Parliament and was compliant with human rights.
Judgment:
The Court upheld the arguments of the Home Office. The Court affirmed that the age assessment system formulated by the policy guidance of looking at documents and doing basic assessments for illegal immigrants did work in the overwhelming majority of cases, albeit that it was not perfect and did lead to some minors being detained every so often in exceptional circumstances. It therefore held that the test and practice used by immigration officials with Criterion C did not have to change. The Court affirmed that an odd extreme example like the one at hand with BF was unfortunate, but did not create a system which was violating human rights – this type of mistake did not happen regularly and the Criterion C system worked in 99% of cases. The Court also affirmed that this age assessment system was human rights compliant.
The Court further stated that this case also raised a separation of powers issue. The Court affirmed that was a reasonable interpretation of the Act and the approach violated no human rights cases. The Court further affirmed that if Parliament wanted to have a highly effective and extremely rigorous system whereby in no circumstances would any foreign child ever end up being detained by immigration officials, then it was up to Parliament to create new immigration legislation and increase the budget provided to the Home Office, but the Court would overextend the scope of its powers and create this obligation in a Judgement.
Ratio-decidendi:
Lord Sales Ratio-Decidendi at 52-74 ‘52. Whenever a legal duty is imposed, there is always the possibility that it might be misunderstood or breached by the person subject to it. That is inherent in the nature of law, and the remedy is to have access to the courts to compel that person to act in accordance with their duty. An asylum seeker has the same right to apply to the courts as anyone else. Lord Sales Ratio-Decidendi at 52-7Save in specific contexts of a kind discussed below and in our judgment in the A case, there is no obligation for a Minister or anyone else to issue policy guidance in an attempt to eliminate uncertainty in relation to the application of a stipulated legal rule. Any such obligation would be extremely far-reaching and difficult (if not impossible in many cases) to comply with. It would also conflict with fundamental features of the separation of powers. It would require Ministers to take action to amplify and to some degree restate rules laid down in legislation, whereas it is for Parliament to choose the rules which it wishes to have applied. And it would inevitably involve the courts in assessing whether Ministers had done so sufficiently, thereby requiring courts to intervene to an unprecedented degree in the area of legislative choice and to an unprecedented degree in the area of executive decision-making in terms of control of the administrative apparatus through the promulgation of policy. ’74. … we would allow the appeal by the Secretary of State. At all material times, the relevant parts of the policy she maintained in place, and criterion C in particular, were lawful’.
“Criterion C: Their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary… Any such obligation (other than this) would be extremely far-reaching and difficult (impossible in many cases) to comply with. It would also conflict with fundamental features of the separation of powers… detention … Criterion C… lawful’, Lord Sales at 4 and 74
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.