Home Office acted unlawfully in detaining unaccompanied young people for age assessments at port in Kent

Since September 2020, hundreds of unaccompanied young people arriving in Kent have been detained by the Home Secretary for the purposes of carrying out a truncated age assessment on them. This was a result of Kent County Council refusing to provide newly arrived unaccompanied young people statutory care as required under the Children Act 1989. The Home Secretary hastily published the Kent Intake Unit (“KIU”) Social Worker Guidance for the detention and processing newly arrived young people through an age assessment process where the Home Secretary cannot be sure that the young person is not a child but an adult. This guidance was issued without consultation with stakeholders. Hundreds of children were subject to this guidance and age disputed under a truncated process that operated without observing basic fairness or providing young people with an appropriate adult.

Today, 19 January 2022, the High Court handed down judgment in R (MA and HT) v Secretary of State for the Home Department [2022] EHWC 98 (Admin), finding (at [17]) that “the Guidance in its current form, and the age assessments carried out in relation to the Claimants, were not lawful in the particular respects I have identified; and that if and insofar as the Claimants’ detention was lengthened for the purposes of carrying out those assessments, it was unlawful.”

MA and HT challenged the KIU Social Worker Guidance on grounds that it was unlawful and in breach of section 55 of the Borders Citizenship and Immigration Act 2009 for requiring age assessments to be conducted in immigration detention shortly after the young person arrives in the UK, and for directing social workers only to carry out truncated age assessments (lasting no more than an hour) in a process that derogates from well-established procedural safeguards, described in short-hand as a Merton principles which the Claimants argued were required. The KIU Social Worker Guidance, formulated and operated in this way, was incompatible with the Home Secretary’s own carefully calibrated policies on handling age disputes which bans the detention of young people who require an age assessment.

The claimants argued that subjecting them to an age assessment in detention under an unlawful policy was itself unlawful. Further, the outcome that they were adults, in reliance on an unlawful policy, was unlawful and their detention for the purposes of subjecting them to an age assessment was unlawful.

The Home Secretary conceded that there were procedural irregularities in the way the Guidance was applied to MA and HT but denied that it was unlawful to detain them pending an age assessment or to operate guidance at the KIU which conflicted with the Home Secretary’s established age assessment policies. In particular, the Home Secretary denied that the truncated detained age assessment process was unlawful for not failing to provide the young person with an appropriate adult or give him a fair opportunity to know the matters taken against him in respect of his age.

In a careful and considered judgment, Mr. Justice Henshaw reviewed 20 years of jurisprudence on the principles of a lawful age assessment and held that

  • where the Home Secretary decides that an age assessment is required to resolve a young person’s age, that assessment must adhere to established procedural safeguards, in particular the provision of an appropriate adult and affording the young person a fair opportunity to know the reasons for the age dispute and provide clarification before a final decision is made.

  • the truncated nature of the age assessment “virtually precludes” any fair procedure. An initial assessment, conducted directly after a young person arrives in the UK, is inconsistent with established principles of age assessments if the child is not afforded the benefit of the doubt pending assessment, is denied an appropriate adult and not afforded an opportunity to know the reasons for the dispute and to provide clarification and further information before a final decision on their age.

  • detaining young people for the purposes of an age assessment was not lawful.

On 14 January 2022, in advance of the hand-down of this judgment, the Home Secretary withdrew the KIU Social Worker Guidance.

For a more in-depth analysis of the judgment, please see here.

Shu Shin Luh and Antonia Benfield acted for the claimants who had litigation friends from the Refugee Council. They were instructed by Martin Bridger and Ella Royle of Instalaw.  They are members of Doughty Street’s Public LawCommunity Care and Immigration Detention teams and the Children’s Rights Group. They have appeared in many of the leading judgments pertaining to the rights of unaccompanied children and young people. Shu Shin is the deputy team leader for the Children’s Rights Group.