R (on the application of BF (Eritrea)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lord Lloyd-Jones,Lord Briggs,Lord Sales,Lord Burnett |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] UKSC 38 |
| Year | 2021 |
| Court | Supreme Court |
[2021] UKSC 38
Lord Reed (President), Lord Lloyd-Jones, Lord Briggs, Lord Sales and Lord Burnett
SUPREME COURT
Procedure and process — unaccompanied minors — age assessment — physical appearance and demeanour — Home Office policy guidance lawful — Gillick[1985] UKHL 7 applied
The Claimant, a citizen of Eritrea, claimed asylum in the United Kingdom on 11 March 2014. Despite claiming to be a child aged 16, he was assessed to be an adult, first by an assistant immigration officer and then by a chief immigration officer. In doing so, they applied the Secretary of State for the Home Department's relevant policy guidance in chapter 55 of the Enforcement Instructions and Guidance (“the EIG”) and an asylum instruction entitled “Assessing Age”. Various criteria were set out, including Criterion C, which stated that immigration officers should treat a person as an adult if “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”. The Claimant was held in immigration detention until 11 September 2014 and again from 7 January to 31 March 2015 while attempts were made to remove him from the United Kingdom. Later, more detailed age assessments were carried out and it was eventually decided that the Claimant was in fact less than 18 years old. It had for many years been contrary to Home Office policy to detain unaccompanied children seeking asylum, subject only to some very limited exceptions. With effect from 28 July 2014, legislative changes to Schedule 2 to the Immigration Act 1971 (“the 1971 Act”), made this a matter of law rather than merely policy. Both prior to and following those changes the Secretary of State gave guidance to immigration officers about how, in that context, they should approach claims by asylum seekers that were under 18.
The Claimant issued proceedings to quash Criterion C in the policy guidance, arguing that it was unlawful because, when followed, it did not remove the possibility that an asylum seeker who claimed to be a child might in fact be one, even though he looked older, with the result that he might be subject to unlawful treatment. The Upper Tribunal dismissed the claim, but the Court of Appeal allowed the Claimant's appeal.* It considered that the relevant policy/guidance would be unlawful, if the way in which it was framed created a real risk of a more than minimal number of children being detained. In relation to Criterion C, the Court of Appeal indicated that the risk of misclassification of an asylum seeker as an adult would only be removed in a satisfactory way if immigration officers were directed to assess a claimant to be aged 18 or more if they thought he looked about
23, or possibly 25, or more. The Court of Appeal considered the challenge to Criterion C both in the context of version 1 of the EIG and “Assessing Age” as they applied prior to the changes made to the 1971 Act in July 2014, and in the context of version 2 of those documents applicable after the changes, and which provided fuller guidance on the age assessment process. The challenge to Criterion C was upheld unanimously in relation to version 1 and by a majority in relation to version 2.The Secretary of State amended Criterion C in line with the Court of Appeal's judgment but appealed to the Supreme Court contending that the Court of Appeal's decision was wrong. In the instant proceedings, the Secretary of State withdrew her apparent acceptance before the Court of Appeal that the relevant test was whether the policy created a real risk that at least some children would be unlawfully detained. She instead submitted that the test to be applied was that derived from Gillick v West Norfolk and Wisbech Area Health Authority[1985] UKHL 7 and, according, Criterion C was not unlawful in any version of the guidance. The Supreme Court considered whether the Court of Appeal erred in law first, by assessing the lawfulness of the policy guidance by reference to whether it (a) created a real risk of more than a minimal number of children being detained, and/or (b) created a risk which could be avoided if the terms of the policy were better formulated; and secondly, in concluding that Criterion C, as construed in the context of the relevant policy, was unlawful.
Held, allowing the appeal:
(1) In a case where the lawfulness of policy guidance was in issue, it had to be asked what the obligations were of the person promulgating the guidance regarding its content. The principal obligation was that explained in Gillick, namely an obligation not to give policy direction to recipients to do something which was contrary to their legal duty. The Claimant's submission, that Criterion C permitted or encouraged unlawful conduct because it did not sufficiently remove the risk that immigration officers might make a mistake when they assessed the age of an asylum seeker who claimed to be a child, involved a misinterpretation of what was said in Gillick. The formula in Gillick involved comparing two normative statements, one being the underlying legal position and the other being the direction in the policy guidance, to see if the latter contradicted the former. The Claimant's submission as to the effect of Gillick distorted that test by comparing the underlying legal position with a factual prediction of what might happen if the persons to whom the policy guidance was directed were given no further information. That would impose on the person promulgating the guidance a very different, and far more extensive, obligation than that discussed in Gillick. It transformed the obligation into one to promulgate a policy which removed the risk of possible misapplication of the law on the part of those who were subject to a legal duty. There was no general duty of that kind at common law. Whenever a legal duty was imposed, there was always the possibility that it might be misunderstood or breached by the person subject to it. The remedy was access to the courts to compel that person to act in accordance with their duty. Save in specific contexts, there was no obligation for a Minister or anyone else to issue policy guidance to eliminate uncertainty in relation to the application of a stipulated legal rule. Any such obligation would be extremely far-reaching and difficult to comply with. It would also conflict with fundamental features of the separation of powers, requiring Ministers to take action to amplify and to some degree restate rules laid down in legislation, and involving the courts in assessing whether Ministers had done so sufficiently (paras 48 – 52).
(2) There was no doubt that, in the period up to 28 July 2014, it was legitimate and appropriate for the Secretary of State to set out in her policy a basic rule that children under 18 should not ordinarily be subject to immigration detention whereas adults above that age could be. With effect from 28 July 2014, that became the legal rule laid down in primary legislation. The fact that it might be difficult in marginal cases to tell which category an individual fell into did not indicate a problem with the rule itself. The Secretary of State, and then Parliament, were clearly entitled to state the rule to be applied as they did. In neither case was the Secretary of State under any obligation to correct or qualify the rule by issuing policy guidance. The objective of the rule was to delineate two categories of person to be subject to different treatment at the initial stage of assessment by immigration officers. There were sound policy reasons why adults should be treated as such and not as children. Detention might be important to ensure the effective application of immigration controls if, upon investigation, it transpired the immigrant had no good claim to remain in the United Kingdom. Where the immigrant was an unaccompanied child, the policy was adjusted to take account of their greater vulnerability, and that meant that it was incumbent on immigration officers to assess whether they were dealing with a child or an adult. The officers were required to apply the statutory regime as Parliament intended it should be applied, and as supplemented prior to 28 July 2014 by the approach set out in the Secretary of State's policy, and that meant they must distinguish adults and children as best they could according to the evidence available to them (paras 53 – 57).
(3) The policy set out in Criterion C included an allowance to give the benefit of the doubt to the immigrant who claimed to be a child whose age was being assessed. The wider discussion in both versions of the EIG and “Assessing Age” stressed the same point, with the emphasis becoming stronger in the second version. There was also an important safeguard built in, that two immigration officers of specified seniority should separately reach the same conclusion. It was possible that those aspects of the policy, or something similar, were required by section 55(1)(a) of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”). It was sufficient, however, to observe that the policy in Criterion C had been formulated “having regard to the need to safeguard and promote the welfare of children” who were in the United Kingdom, so that the Secretary of State had properly complied with her duty under section 55: R (on the application of AA (Afghanistan)) v Secretary of State for the Home Department[2013] UKSC 49 applied. Where, after making due allowance for doubt to the degree instructed by the Secretary of State, immigration officers believed they were dealing with an adult, their duty was to treat the person as an adult to comply with the rule set by the Secretary of State and then by Parliament, and to achieve the objectives which that rule was supposed to promote. The principle in Gillick did not require anything different from that...
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