Tribunal decisions

The decision

IN THE UPPER TRIBUNAL

JR/8610/2014

Field House,
Breams Buildings
London
EC4A 1WR

Heard on: 24 May 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

the queen
(on the application of BF by his litigation friend FRANCESCO JEFF)
Applicant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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For the Applicant: Mr C Buttler, Counsel instructed by Scott Moncrieff Solicitors
For the Intervener: Mr M Chamberlain QC, Equality and Human Rights Commission
For the Respondent: Mr J Strachan, QC/Ms D Rhee QC instructed by Government Legal Department

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JUDGMENT

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JUDGE H H storey:

1. At the heart of this application for judicial review is a challenge to one specific provision of the respondent's current policy relating to detention of persons claiming to be a child. That provision is Chapter (sometimes referred to as "paragraph") 55.9.3.1 of the Enforcement Instructions and Guidance (EIG) which identifies as one of four bases or criteria on which the respondent will treat as an adult a person claiming to be a child:

"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."

2. The applicant and Intervener seek a declaration and/or quashing order in relation to criterion C.

3. Since Mr Chamberlain's grounds on behalf of the intervener were primarily aimed at identifying incompatibility of criterion C with EU, ECHR and international human rights law, I shall not always note where he has agreed with wider submissions advanced by Mr Buttler on behalf of the applicant. I set out a summary of the parties' oral submissions in an Appendix.

4. The applicant's case is that criterion C of the respondent's policy on detention is unlawful because it is based on physical appearance/demeanour which is an inherently unreliable guide to age. The policy has been in operation for some considerable time and has undergone some modifications1, but it is with the current version only that this judicial review is concerned.
5. The applicant, a national of Eritrea, was detained under this criterion of the policy from 11 March to 11 September 2014, when he was granted bail by the First-tier Tribunal. He was subsequently re-detained from 7 January - 31 March 2015. His application is brought on behalf of BF by his litigation friend, Francesco Jeff of the Refugee Council. It comes before me at this time as a result of a direction by the President that it not be listed until the Court of Appeal handed down its judgment in Ali, R (on the application of) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 138 (hereafter "Ali"). This was handed down on 9 March 2017. In Ali the central issue concerned the legal consequences for a claim for unlawful detention of the amendment made by paragraph 18B of Schedule 2 to the Immigration Act 1971 which prohibits detention of a child beyond 24 hours in a short-term holding facility. Inserted by the Immigration Act 2014, this paragraph, together with paragraph 16(2A), came into force on 28 July 2014. Paragraph 16(2A) and 18B of Schedule 2 to the Immigration Act 1971 provide:-

"16(2A) But the detention of an unaccompanied child under sub-paragraph (2) is subject to paragraph 18B."

"18B (1) Where a person detained under paragraph 16(2) is an unaccompanied child, the only place where the child may be detained is a short-term holding facility, except where-

(a) E+W+S+N.I.the child is being transferred to or from a short-term holding facility, or

(b) sub-paragraph (3) of paragraph 18 applies.

(2) An unaccompanied child may be detained under paragraph 16(2) in a short-term holding facility for a maximum period of 24 hours, and only for so long as the following two conditions are met.

(3) The first condition is that-

(a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24 hour period, or

(b) a decision on whether or not to give directions is likely to result in such directions.

(4) The second condition is that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24-hour period in accordance with those directions.

(5) An unaccompanied child detained under paragraph 16(2) who has been removed from a short-term holding facility and detained elsewhere may be detained again in a short-term holding facility but only if, and for as long as, the relevant 24-hour period has not ended.

(6) An unaccompanied child who has been released following detention under paragraph 16(2) may be detained again in a short-term holding facility in accordance with this paragraph.

(7) In this paragraph-
'relevant 24-hour period', in relation to the detention of a child in a short-term holding facility, means the period of 24 hours starting when the child was detained (or, in a case falling within sub-paragraph (5), first detained) in a short-term holding facility;

'short-term holding facility' has the same meaning as in Part 8 of the Immigration and Asylum Act 1999;

'unaccompanied child' means a person-

(a) who is under the age of 18, and

(b) who is not accompanied (whilst in detention) by his or her parent or another individual who has care of him or her."

Rregarding this amendment the Court of Appeal in Ali [29] held that:

"?the plain language of the amended provisions compels the conclusion that where, in point of fact, the detainee is an (unaccompanied) child then detention beyond what is sanctioned in paragraph 18B(1) and (2) is unlawful. It does not suffice that there were reasonable grounds for believing or suspecting at the time of detention that the individual was an adult" (per Davis, LJ).
6. The applicant's challenge is expressed as being to the policy because he does not dispute that it was applied to him as it was intended to apply. Nevertheless, Mr Buttler seeks to rely on the way it was applied to the applicant as an illustration of its inherent defects. In particular, he seeks to rely on the fact that although the applicant was found to be an adult in the first two local authority ('Merton-compliant') age assessments (on 6 January 2015 and 24 January 2015 - the latter confirmed by way of an addendum report of 12 March 2015), the conclusion of a third age assessment carried out in September 2015 was that he was a child. Proceedings between the applicant and Newport City Council were resolved on 23 September 2015 by a consent order concluding that the applicant was a child born on 15 February 1998. Such age assessments are referred to as "Merton- compliant" following the judgment of Stanley Burnton J in R(on the application of B) v Merton London Borough Council [2003] EWHC 1689 (Admin).

7. It will be apparent from the above that, whilst the applicant has been involved in litigation regarding his age for some considerable time, the only application with which I am concerned is that lodged on 20 June 2014 challenging his detention on the ground that it was irrational for the respondent's officials to have thought that the applicant's physical appearance /demeanour very strongly suggested that he was significantly over 18. By way of amended grounds, this challenge now materialises as a challenge to the policy only.
Procedural history
8. The procedural history of the application is complex.

9. On 26 June 2014 Supperstone J dismissed the applicant's application for release, concluding that the Immigration Officer's assessment of the applicant's physical appearance was not irrational. On 9 July 2014 the applicant applied to rely on amended grounds challenging the lawfulness of the respondent's policy. On the same day Ouseley J transferred the application to the Upper Tribunal. On 10 July Upper Tribunal Judge Kopieczek granted a stay on the applicant's removal pending determination of the judicial review or further order. On 6 August 2014 Upper Tribunal Judge Peter Lane refused the applicant permission to apply for judicial review. Permission to appeal this refusal was initially refused on the papers by Fulford LJ on 5 November 2014, but on 8 May 2015 Janet Smith LJ granted permission to appeal. On 11 October 2016 the Court of Appeal held that the application was arguable and granted permission to apply for judicial review. By order dated 4 November 2016 the Court of Appeal remitted the application to the Upper Tribunal. Since transfer to the Upper Tribunal the case has been subject to considerable case management designed to ready the parties to address all pertinent issues.

The applicant
10. The background to the applicant's challenge is as follows. He claims to have entered the UK on 11 March 2014 concealed in the back of a lorry. On the same day he presented himself to police at Tunbridge Wells Police Station explaining that he had come to the UK to seek asylum. He gave his date of birth as 15 February 1998. He was arrested as an illegal entrant. On the same day an Assistant Immigration Officer (AIO) conducted an initial interview, and carried out an age assessment on the strength of which he considered that the applicant was significantly older than he claimed. The applicant's case was referred to a Chief Immigration Officer (CIO) who, having also "age-assessed" him, took the same view. The CIO's assessment was recorded as follows:

"I have age assessed this subject as over 18, his physical appearance is that of an adult in his mid twenties, with receding hairline and well defined jawline, Adam[s] apple etc. His physique also appears to be well developed. I am satisfied that he is not 16 years old".
The applicant was then informed of this decision. In Form BP7 the two officers concerned recorded his response as being "I cannot argue with you". The officers then amended the applicant's date of birth to 15 February 1996 so as to reflect their decision that he was to be treated as an adult. He was then fingerprinted and his identity was checked.

11. Results indicated that he had been apprehended in Italy on 17 June 2013 (in Lampedusa) and 21 June (Cagliari) and that he had claimed asylum in that country. The next day (12 March 2014) he was interviewed and detained at Dover Immigration Removal Centre. During that interview he gave his date of birth as 15 February 1996, confirmed he had been fingerprinted twice in Italy and had claimed asylum there, and said he had no documentary evidence relevant to his claim, family life or other circumstances.

12. The respondent then made a 'take back' request to the Italian authorities under Article 18(1)(b) of the Dublin III Regulation. The Italian authorities accepted this request on 17 April 2014, their records stating the applicant's date of birth as 15 February 1988. In response to a subsequent inquiry, the Italian authorities confirmed that this date of birth was based on the applicant's own self-declaration. On 3 April 2016 the respondent certified the applicant's claim for asylum on third country grounds; removal directions were set for 6 May 2014; and his detention was maintained. The periods the applicant was in detention between 11 March 2014 to 11 September 2014 and 7 January 2015 to 31 March 2015, amount in total to nearly 9 months.

13. Following the third age assessment (which unlike the first two found him to be a child) and the consent order of 23 September 2015, the third country certificate was withdrawn on 16 May 2016. Since May 2016 the respondent's records and the ARC (Application Registration Card) issued by the respondent have recorded the applicant's date of birth as 15 February 1998.

The grounds
14. In the course of the present proceedings the parties have filed several skeleton arguments. In the latest one the applicant contends that criterion C is unlawful on three grounds. First, it is said that a policy which by its nature permits the detention of individuals who are children is, in light of the statutory provisions on child detention, unlawful: "Given that some children do 'very strongly appear significantly over 18', this criterion will necessarily lead to child detention. It will permit the detention of a child like the applicant and the large number of other cases identified by the Refugee Council (and indeed in the respondent's own evidence)". Second it is said that illegality is inherent in the system operated by the respondent because the physical appearance/demeanour criterion is inherently unreliable and will inevitably lead to child detention in breach of the statute. Third it is submitted that no rational policy-maker could maintain the physical appearance/demeanour criterion as a means of securing the end of child detention.

My assessment
15. As advanced by the applicant the aforementioned grounds traverse a number of discrete issues, some pertaining to each of them. In keeping with the method employed by the parties in their submissions, I shall give my assessment by reference to the various issues they have raised.
16. As the parties acknowledged, it is for the courts (and Upper Tribunal) to determine the meaning of a policy: see R (Raissi) v Secretary of State for the Home Department [2008] QB 836 paragraphs 123-4 per Hooper, LJ.

17. The respondent has urged that I attach significant weight to the observations on Chapter 55.9.3.1 of the EIGs made by Lord Toulson in R(AA(Afghanistan) v Secretary of State for the Home Department [2013] UKSC 49 [2013] 1 WLR 2224 (hereafter "AA(Afghanistan") in particular the passage at [48] where, having set out the policy, he describes it as "detailed and useful" and its reasoning as "persuasive". However, as Mr Strachan conceded, these observations were obiter. Whilst clearly conveying that this policy was viewed positively, they do not assist as to the meaning of the policy nor was the Court considering any arguments directed at its public law efficacy. This case would not be before me if it had.

18. A challenge to policy can only succeed if a high threshold requirement is met - see R (Detention Action) v First-tier Tribunal Judge [2015] 1 WLR at [27]; R(Tabbakh) v Staffordshire Probation Trust (QBD) [2014] 1 WLR at [52].

19. I am not persuaded that the challenge brought by the applicant meets the necessary threshold.
Criterion C
20. First of all, the specific provision under challenge - criterion C of Chapter 55.9.3.1 of the EIG - cannot be reduced to a mere test of physical appearance based on visual observation. From its wording, it is clear that this criterion is based on physical appearance/demeanour coupled with the absence of any other credible evidence ("... and no other credible evidence exists to the contrary"). It is unfortunate in my view that a number witness statements and other materials produced on behalf of the applicant treat this criterion simply as a "physical appearance" criterion.
21. The terms of criterion C also clearly demarcate it from a binary test based on whether or not an applicant falls above or below the age of 18. It is only to be applied to those whose physical appearance/demeanour "very strongly suggests" they are "significantly" over 18. Such phraseology affords a considerable margin of error to an applicant, one relating to the strength of the evidence, the other to the age threshold itself.
22. Another pertinent feature is that, even leaving aside the "?no other credible evidence" limb, the test is not purely one of physical appearance. It also requires the case owner to have regard to demeanour. It is helpful in this regard to note the definition of demeanour offered by Lord Bingham in his book The Business of Judging O.U.P., 2000 at p. 8:
"the sum of a witness's conduct, manner, behaviour, delivery, inflexion ... [in short] anything which characterises his mode of giving evidence but does not appear in a transcript of what he actually said".
23. This broadly drawn definition, albeit formulated in the context of an oral hearing, helps make clear that demeanour extends beyond mere observation of an applicant's physique and encompasses body language, a person's manner of speaking and would include auditory responses. Hence, even in terms of this component, the test is inaccurately described (as it was in some of the submissions) as a "visual assessment" test.
Chapter 55.9.3.1
24. Second, criterion C cannot be considered in isolation. The paragraph in which criterion C is set out is headed 'Individuals claiming to be under 18" and it states:
"?
The Home Office will [not] accept an individual as under 18 (including those who have previously presented themselves as an adult) unless one or more of the following categories apply (please note this does not apply to individuals previously sentenced by the criminal courts as an adult):
A. There is credible and clear documentary evidence that they are 18 or over.
B. A Merton compliant age assessment by a local authority is available stating that they are 18 years of age or over.
C. Their physical appearance / demeanour very strongly suggests that they are significantly over 18 year[s] of age and no other credible evidence exists to the contrary.
D. The individual:
Prior to detention, gave a date of birth that would make them an adult and/or stated they were an adult; and
Only claimed to be a child after a decision had been taken on their asylum claim; and
Only claimed to be a child after they had been detained; and
Has not provided credible and clear documentary evidence proving their claimed age; and
Does not have a Merton compliant age assessment stating they are a child; and
Does not have an unchallenged court finding indicating that they are a child; and
Physical appearance / demeanour very strongly suggests that they are 18 years of age or over.
(all seven criteria within category D must apply).
If an individual claim to be a child in detention the decision on whether to maintain detention or release should be made as promptly as possible."
25. Three particular features of Chapter 55.9.3.1 stand out. One is that from its second paragraph (the first in the above quote) it is clear that the policy operates a presumption in favour of a finding that applicants will be treated as a child and so not subject to detention - it is based on a presumption that an individual is under 18 and one that is only to be displaced in four specified circumstances.
26. Another marked feature - one I have already noted - is that so formulated the policy is not based on a simple child/adult dichotomy. The four-fold criteria are not concerned with those whose claims to be children are merely doubted: the latter are treated separately as 'age-disputed' cases who "should be afforded the benefit of the doubt and treated as children ... until a careful assessment of ... age is completed". Put another way, the four-fold criteria are exclusively concerned with "non-borderline" cases.
27. A third feature, although not one stated in the above passage, is that the policy is plainly intended to operate in the context of a screening interview or examination one of whose purposes is to undertake an initial age-assessment. The test set out in criterion C, of physical appearance/demeanour together with "?no other credible evidence", is clearly understood not to be the same thing as a full (Merton-compliant) age assessment. Indeed, the references in criteria B and D of 55.9.3.1 make clear that if there is an available Merton compliant age assessment, criterion C is inapplicable.
Interrelated policy (Assessing Age Asylum Instruction)
28. Further, it is apparent that this guidance document must be read in conjunction with another, the Assessing Age Asylum Instruction. The opening paragraph of Chapter 55.9.3.1 states:
"The guidance in this section must be read in conjunction with the Assessing Age Asylum Instruction (even in non-asylum cases). You may also find it useful to consult Detention Services Order 14/2012 on managing age dispute cases in the detention estate."
29. Paragraph 2 of the Assessing Age Asylum Instruction emphasises that:
"[A]ll available sources of relevant information and evidence should be considered since no single assessment technique, or combination of techniques is likely to determine the applicant's age with precision".
30. Under 2.1. "Initial age assessment", having stated that criterion C is to be applied where there is little or no evidence to support the applicant's claimed age, this Instruction proceeds to identify a number of safeguards which are to inform criterion C's application. It is stated that "[c]areful consideration must be given to assessing whether an applicant falls into this category as they would be considered under adult processes and could be liable for detention". At 2.2.1. this is described as an "in-built safeguard" to ensure compliance with the Section 55 duty [Section 55 of the Border Citizenship and Immigration Act 2009]. This Instruction then sets out the requirement of a 'second pair of eyes':
"Before a decision is taken to assess an applicant as significantly over 18, the assessing officer's countersigning officer (who is at least a Chief Immigration Officer (CIO)/Higher Executive Officer (HEO)) must be consulted as a 'second pair of eyes'. They must make their own assessment of the applicant's age."
31. This Instruction also sets out a further requirement of notice:
"If the countersigning officer also agrees to assess the applicant as significantly over 18, the applicant should be informed that their claimed age is not accepted and that their asylum claim will be processed under adult procedures".
32. There is also an obligation of ongoing review: it is said that case owners "must review decisions to treat applicants as adults, if they receive relevant new evidence".
33. These interrelated Instructions underline the fact that criterion C is not intended to be applied in a free-standing manner, but in the context of an initial examination which seeks to establish all relevant evidence available as regards an applicant's age. In making a decision under the policy the officials concerned also have to adhere to a number of safeguards.
Physical appearance: an inherently flawed criterion?
34. Even if it is right that criterion C cannot be reduced to physical appearance/demeanour and has to be considered in the context of the respondent's detention policy/ices as a whole, it is still necessary to assess whether criterion C's physical appearance/demeanour component constitutes an inherently flawed component that has no place in such a detention policy. Buttressed by criticisms levelled at the criterion by a number of reputable bodies, including the Children's Commissioner, Mr Buttler describes it as "inherently subjective and impressionistic"; Mr Chamberlain says it is "arbitrary". Both argue that the higher courts have impugned it.
35. Mr Buttler and Mr Chamberlain are entirely right to highlight that on several occasions the higher courts, echoing wider learning, have found physical appearance to be an unreliable criterion for a full age assessment. However, there are at least two important caveats to that. First, even in the context of a full (Merton compliant) assessment they have never said that physical appearance is an irrelevant criterion. Their dicta have been confined to its application to 'borderline' cases: see e.g. Stanley Burnton J in Merton at [36].
36. The second caveat is that the higher courts have never said that it must always be wrong to rely solely on physical appearance. Thus in R(B) v London Borough of Merton [2003] EWHC 1689 (Admin) it was noted at [38] that "In an obvious case, the appearance of the applicant alone will require him to be accepted as a child; or, conversely, justify his being determined to be an adult, in the absence of compelling evidence to the contrary"; and at [50] that: "[c]ases will vary from those in which the answer is obvious to those in which it is far from being so, and the level of inquiry unnecessary in one type of case will be necessary in another." These observations articulate well the fact that physical appearance/demeanour is used as a component when assessing persons claiming to be children whether they are thought to be adults or children. It is because physical appearance is regarded as having a valid role in the latter cases, that it is considered unnecessary to subject such children to specific age assessment procedures which are potentially intrusive of their right to respect for private life.
37. Indeed, the fact that reliance on the criterion of physical appearance will not always be unlawful was conceded by both Mr Buttler and Mr Chamberlain during the hearing. Both accepted that in "obvious" cases, e.g. someone over 40 claiming s/he was a minor, the criterion of physical appearance would suffice to determine he was not. Moreover, in an early skeleton argument dated 27 February 2015 Mr Buttler said that if the policy had stated (as it apparently did in an earlier incarnation) that it applied to persons over 30, his rationality challenge could not prosper2.
Reliance on a criterion of physical appearance is also to be found in other parts of the respondent's policy on detention. That of course does not serve as a reason in itself for considering it has a legitimate role. Silber J's admonition in The Queen (on the application of Medical Justice) [2010] EWHC 1925 (Admin) (that "there is no presumption that if a claimant does not dispute that a particular previous policy or that other parts of a particular policy are valid but only challenges the exceptions to that policy, the claimant thereby accepts that the unchallenged parts are valid") resonates here. And, of course, as Mr Buttler highlighted, it remains possible a challenge could be brought against these other parts. Nonetheless, the fact that they have been in operation for some time, without apparent demur, might be thought to indicate that criteria of this kind have a role in limited contexts. Chapter 55B, Adults at risk in immigration detention, Version v2.0, 6 December 2016, concerns assessment of whether, if a person is being considered for immigration detention, he or she is an 'adult at risk' under the terms of this policy. It is stated that in cases in which an undocumented individual claims to be aged 70 or over, but in which there is no documentary confirmation, the processs to be followed should be:
"Age

For the purposes of this policy an individual aged 70 or over should be (regardless of any other considerations) regarded as being at risk and the fact of their age alone, will automatically be regarded as amounting to, at least, level 2 evidence (see evidence levels3). In the cases of documented individuals, their age will be apparent from the documentation. When the individual is undocumented, however, and there is no definitive information available that indicates their age, a judgement may need to be made on the basis of a visual assessment.

In cases in which an undocumented individual claims to be aged 70 or over, but in which there is no documentary confirmation, the following process should be followed:

- the decision maker (or an officer acting on their behalf) should carry out a visual assessment of the individual
- on the basis of this visual assessment, if the individual is clearly, or is in all probability, aged 70 or over, they should be treated accordingly for the purposes of this policy
- if there is doubt about whether the individual is in fact aged 70 or over:
? all existing documentation should be double-checked to ensure that there is no information which indicates the individual's age
? the individual should be asked whether they have any additional information
? the decision maker should reach a view on whether or not the individual is 70 or over
? if the view is taken that the individual is likely to be under 70, and that the individual is to be detained (or their detention continued), this assessment of age must be corroborated by the decision maker's line manager, who should be of at least the grade of HEO."

38. It is also pertinent that the guidance applied by social workers for the purposes of age assessment, the ADCS Age Assessment Guidance, October 2015, does not regard Merton compliant age assessment as the criterion that must be used in all cases. In Chapter 1, "Do you need to undertake this age assessment?" the question is posed whether it is "'absolutely necessary" to undertake an age assessment and it is then stated:
"Statutory guidance [Department of Education (2014) Care of Unaccompanied and Trafficked Children) on the care of unaccompanied children states that:
'Age assessment should only be carried out whether there is a significant reason to doubt that the claimant is a child. Age assessment should not be a routine part of a local authority's assessment of unaccompanied or trafficked children.'"
39. The ADCS guidance notes further on in this chapter that:
"The authors acknowledge and accept that some adults do claim to be children, In some rare circumstances, it will be very clear that the individual is an adult well over the age of 18, so prolonged inquiry may not be required, as stated in the Merton judgment [citing para 45]. Even in these rare circumstances when you are making a relatively quick decision, you are still undertaking an assessment, albeit a brief one, and you must record the rationale for your decision as well as share your decision with the individual being assessed. ?"
40. In Chapter 5 ("Making the decision") this guidance notes that:
"Physical appearance and demeanour should not be the sole basis on which age is assessed. However, there may be rare occasions where the individual does not provide any substantial information that can assist you. If your assessment is based on appearance and demeanour, and you are not accepting their claim to be a child, then you must have no doubt that they are an adult and you must be prepared to state this in court if necessary."
The above formulation of the physical appearance test is not in exactly the same terms as contained in criterion C, but it is broadly comparable.
Guidance to immigration officers
41. One of the points marshalled by Mr Buttler was that despite making physical appearance a central criterion in claims to be minors made by persons appearing to be adults, the case owners and other officers whose job it is to apply this policy receive no training or instruction in how to apply it. The importance of assessment being carried out by staff who are properly trained is that application of detention policies go hand in hand with assessment of claims for international protection and the Asylum Procedures Directive (2005/85/EC) stipulates at Article 13(3)(a) that Member States shall "ensure that the person who conducts the [personal interview] is sufficiently competent to take account of the general circumstances surrounding the application, including the applicant's cultural origin or vulnerability insofar as it is possible to do so." (This guarantee has been fortified by the Asylum Procedures Directive (recast) which requires those conducting the interview are not only competent but are "properly trained" (Article 3(3)). As the UK has not opted in to this recast, its provisions only afford guidance on best practice).
42. On this point the evidence is somewhat mixed. On the one hand, Mr Buttler is right in pointing out that nothing in the policy instructions advises case owners about what aspects of physical appearance and demeanour might be salient (how to assess physical appearance/demeanour). The AIO who interviewed the applicant clearly thought it relevant to highlight development of his Adam's apple, jawline and his physique, but no published Instructions cover this level of detail. On the other hand, it would be quite wrong to portray the case owners as having no instructions about age assessment. The interrelated policy document already referred to, on Assessing Age Asylum Instruction, is replete with advice on the state of knowledge about age assessments. I have already quoted from paragraph 2 which states that "?no single assessment technique, or combination of techniques is likely to determine the applicant's age with precision". Chapter 5 ("Local authority age assessments") summarises the Merton judgment noting that "[t]here is no prescribed way in which local authorities are obliged to carry out age assessments; the courts have, however, provided some general guide to local authorities in cases such as [Merton]?". And at 5.2. that "[c]ase owners should give considerable weight to the findings of age made by local authorities, recognising the particular expertise they have through working with children. In cases where the local authority's assessment is the only source of information about the applicant's age - their assessment will normally be accepted as decisive evidence". Chapter 6 deals with "Other evidence of age". Chapter 8 is devoted to "Weighing up conflicting evidence of age". Michael Gallagher of Asylum and Family Policy, Immigration and Border Policy Directorate, in his witness statement of 23 January 2017 avers that "Home Office staff receive training in dealing with children, and on the processes to be followed when assessing age". In her fourth witness statement, Helen Johnson Operations Manager for the Children's Section of the Refugee Council, avows that to the best of her knowledge such training does not include any treatment on how to assess whether a person "very strongly appears significantly over 18".
43. Considering the evidence in the round, I conclude that it would be wrong to suggest that case owners lack instructions on the subject of age assessment, but Mr Buttler is right they lack instructions on how to analyse the physical appearance and demeanour criterion in any detail. That is a failure but I do not consider it is one that renders the policy unlawful and the challenge before me is confined to the policy rather than its application.
44. One other aspect to Mr Buttler's submission as regards instruction, is that the policy does not spell out what meaning is to be given to the terms "very strongly suggests" and "significantly over 18". That again is true but I do not think this feature undermines it, since such terms are ones that the higher courts have said many times over in a wide range of contexts are to be given their natural and ordinary meaning. It might be argued that the policy could have made mention of a specific age, e.g. 23 or 25 (to reflect the 5 to 7-year margin of error identified by medical bodies). As already noted, Mr Buttler in an early skeleton argument suggested the policy would not be irrational if it referred (as it had in a previous version, according to MacDonald's Immigration Law and Practice) to applicants who look over 30. However, since the objective of the policy is to identify by way of an initial "'screening" assessment cases that are outside the category of "borderline cases" it is not apparent that there would be any value in greater precision than such an assessment can deliver.
Paragraph 18B of Schedule 2
45. I turn next to consider the contention in the applicant's grounds that the policy has been rendered unlawful as a result of the amendment made to the law by the inserting of a new paragraph 18B of Schedule 2 to the Immigration Act 1971 in force from 28 July 2014.
46. It is true that this provision prohibits detention of children under 18 except for a period of 24 hours in a short-term holding facility subject to certain conditions. Paragraph 18B qualifies the statutory power to detain set out in paragraph 16(2). Paragraph 18B provides:
"18B (1) Where a person detained under paragraph 16(2) is an unaccompanied child, the only place where the child may be detained is a short-term holding facility, except where -
(a) the child is being transferred to or from a short-term holding facility, or
(b) sub-paragraph (3) of paragraph 18 applies.
(2) An unaccompanied child may be detained under paragraph 16(2) in a short-term holding facility for a maximum period of 24 hours, and only for so long as the following two conditions are met.
(3) The first condition is that -
(a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24-hour period, or
(b) a decision on whether or not to give directions is likely to result in such directions.
(4) The second condition is that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24 hour period in accordance with those directions.
(5) An unaccompanied child detained under paragraph 16(2) who has been removed from a short-term holding facility and detained elsewhere may be detained again in a short-term holding facility but only if, and for as long as, the relevant 24 hour period has not ended.
(6) An unaccompanied child who has been released following detention under paragraph 16(2) may be detained again in a short-term holding facility in accordance with this paragraph.
(7) In this paragraph -
'relevant 24 hour period', in relation to the detention of a child in a short-term holding facility, means the period of 24 hours starting when the child was detained (or, in a case falling within sub-paragraph (5), first detained) in a short-term holding facility;
'short-term holding facility' has the same meaning as in Part 8 of the Immigration and Asylum Act 1999;
'unaccompanied child' means a person -
(a) who is under the age of 18, and
(b) who is not accompanied (whilst in detention) by his or her parent or another individual who has care of him or her."
47. It is also true that in Ali the Court of Appeal expressly rejected a submission made by the Secretary of State seeking to rely on the decision of the Supreme Court in AA (Afghanistan) (which had disapproved the proposition that detention under paragraph 16 of Schedule 2 made in the reasonable but mistaken belief that the detainee was an adult would of itself involve a breach of Section 55 of the 2009 Act). In Ali Davis LJ considered that the outcome reached by the Supreme Court in AA (Afghanistan) had been superseded by the amended legislation. However, the latter decision was concerned with whether there was strict liability for the detention of persons later found to be children and the concrete effect of the Ali decision was to confirm that Parliament has now amended the relevant law so as to ensure strict liability. The challenge in Ali related to the decision that his period of detention in February 2015 was unlawful.
48. Further, the Ali decision does not address the issue of whether a policy based in part on a criterion of physical appearance can or cannot lawfully be applied in the context of an initial age assessment. Mr Buttler submits that the logic of the Ali decision is that detention of adults claiming to be minors can only lawfully take place if it has already been established as an "objective fact" that the applicant is a child. He and Mr Chamberlain highlighted that this approach was also consonant with Strasbourg jurisprudence on age assessment which also requires that such assessment be "objective".
49. The need for an objective assessment of age is a well-settled matter. However, establishment of age as an objective fact must surely be dependent on context. In the context of a full age assessment, it is well-established that assessment of age as an "objective fact" is to be made by social workers conducting a Merton-compliant age assessment and, in the event of a legal challenge, by judges considering the evidence (I gloss over here the apparent paradox that a form of assessment widely accepted as an "inexact science" is currently regarded as determining an objective or scientific fact). But that is not the context here. Here the context concerns an initial age assessment, typically made on the same day as an applicant applies for or expresses an intention to apply for asylum. Objective assessment in that context has practical limits. It is accepted on all sides that such assessment cannot be made in light of a Merton-compliant age assessment unless (by happenstance) one is already available. As was noted by Lord Toulson in AA(Afghanistan) at [34] - a proposition unaffected in my judgement by the amendments to Schedule 2 of the Immigration Act 1971 -one cannot "make a Merton compliant age assessment a precondition of a valid decision under para 55.9.3.1?"
50. Likewise, if paragraph 18B of Schedule 2 was considered to bear on initial age assessment it would mean that there could be no detention of anyone claiming to be a minor no matter how preposterous such a claim might be unless and until there was a Merton-compliant age assessment (or if legally challenged, a finding of fact made in light of it by a court or Tribunal). In effect applicants of any age would be able to avoid detention simply by pointing out that there was not yet a full age assessment available. Typically, that would mean that all persons who claimed to be minors would be immune from detention until such time as a full age assessment was made. Such an assessment takes time - inevitably. It is stated in the ADCS Age Assessment Guidance, October 2015 that "[m]ost age assessments should be completed within 28 days?" (p .21). It is also said that it is important that the age assessment is not rushed (p. 10) and that it should take place in a location or venue conducive to helping the child or young person feel safe, comfortable and able to participate to the best of their ability in their interview(s) and that facilities such as police stations would not be considered appropriate for conducting age assessments (p.15).
51. If paragraph 18B was considered to bear on initial age assessment, prohibition of detention would have to apply even for "obvious" cases involving adults who are obviously adults. A 30+ year old could avoid possible detention by simply claiming he or she was under 18. Applicants of all ages could insist on a full age assessment as a pre-requisite for any decision to detain them as adults. Such a rule would not simply be impracticable or absurd. It would defy common sense.
52. On Mr Buttler's argument the reasoning I adopt here is contrary to the strong rejection by Davis LJ in Ali of what he termed at [45] "[i]n terrorem arguments". However, in Ali the explicit wording of the relevant provisions of Schedule 2 to the 1971 Act was properly considered to have a direct bearing on the claim in hand, which was an application for a declaration that past detention was unlawful pursuant to these provisions. In that context, the start point is that there is a clear contradiction between an established objective fact (based on a Merton-compliant aged assessment) and a detention. In the context of an initial age assessment, either the position is that there cannot as yet be any established objective fact or there is but it is one that is confined to its context - an 'initial' not a 'full' age assessment.
53. I would reiterate that my conclusion on this issue does not seek to construe paragraph 18B differently from the way it has been interpreted by the Court of Appeal in Ali. Rather it is to deny that this provision has application to the context of initial age assessments made by immigration officials. Paragraph 18B most certainly has application when it comes to remedies for detention of an applicant later established to be a minor by a full age assessment. That is the ratio of Ali. If there are passages in Ali which appear to go wider, I cannot see that they bite on initial age assessment in the context of Chapter 55.
Policy rationale
54. Another important strand of Mr Buttler's submissions was that criterion C lacked a legitimate policy rationale. In this regard, he highlighted that there were strong considerations of policy pointing against detention and against detention of persons who could be minors. Reference was made to the fact that criterion C has been criticised by a number of reputable bodies including the Children's Commissioner (who has described visual assessment of age as "unsafe and unhelpful"), the Royal College of Paediatrics and Child Health Practitioners (RCPCHP), the Migrant Children's Project, the Coram Children's Legal Centre (see e.g. its 2013 report, Happy Birthday? Disputing the age of children in the immigration system), the Refugee Council and the Refugee Children's Consortium. In its Intercollegiate Briefing Paper, the RCPCHP observes that: "[a]lmost all detained children suffer injury to their mental and physical health as a result of their detention, sometimes seriously. Many children experience the actual process of being detained as a new traumatising experience."
55. Mr Strachan's counter-submissions highlighted the fact that a workable detention policy was an essential part of the government's immigration policy and served the public interest in effective immigration control. Adults who are liable to removal from the UK should not be able to obtain release from detention and therefore frustrate legitimate immigration control by simply asserting that they are a child. Referring individuals that are clearly adults to local authorities was very likely to stretch their already limited resources. He said that there was a significant problem of fraudulent claims which burdened the system. He also pointed to the significant adverse consequences that could flow from the failure to detain persons thought to be adults but claiming to be minors: in the respondent's skeleton arguments it was asserted that "[t]he consequences of giving too much leeway are as serious as giving too little: the consequences would be that an adult would be placed in local authority accommodation, possibly with vulnerable children, posing a risk to them, and taking up resources which local authorities could otherwise devote to those who are genuinely children". By choosing to treat even age-disputed applicants as children the policy embodied a protective function.
56. In response to these submissions Mr Buttler pointed out that whether persons who are actually adults are mistakenly accommodated together with minors is the responsibility of local authorities, not the immigration service. That is largely correct, but not wholly since in the case of challenges brought by persons detained by immigration officials as a result of applying Chapter 55, such persons may be accommodated by local authorities with other minors pending a full age assessment. (It is also the case that if a person's age is disputed, the immigration service processes them together with other minors.)
57. Weighing up these competing arguments, it seems to me that whilst criticisms can be made and will doubtless continue to be made of the respondent's detention policy set out in Chapter 55.9.3.1, it cannot be said either to lack a sufficient policy rationale or to place the respondent in conflict with the legislation. What I say next provides further reasons for the above conclusion.
Unreasonable exercise of power
58. One of Mr Buttler's key submissions is that the policy under challenge should be held to be unlawful because it is an unreasonable exercise of power to issue guidance that permits or encourages unlawful conduct. In support he cited Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 181F which concerned guidance on family planning services for children; R (Tabbakh) v Staffordshire and West Midlands Probation Trust [2014] 1 WLR 1022, which concerned licence conditions for offenders; and R(Letts) v Lord Chancellor [2015] 1 WLR 4497, [118] which concerned granting legal aid for representation at an inquest and in which Green J stated that "[t]he test is hence: Would the Guidance if followed (i) lead to unlawful acts (ii) permit unlawful acts or (iii) encourage such unlawful acts?". In R(Tabbakh) Cranston J noted at [42[- [52] that the authorities recognise three bases on which a court can conclude that a government policy is unlawful. The first of these was whether a policy if followed would lead to unlawful acts or decision or which permits or encourages such acts - the Gillick line of cases. The second concerned Article 3 ECHR cases where a policy exposes a person to a significant risk of ill treatment (not relevant in this application). The third basis was inherent unfairness. I shall deal with the first basis before turning to the third.
59. I am not persuaded that the Gillick line of cases impacts on the policy under challenge. For one thing there is nothing on the face of Chapter 55.9.3.1 that suggests that case owners are permitted or encouraged to undertake unlawful acts. In contrast to cases where unlawfulness has been found on this first basis, e.g. by Green J in R(Letts) v Lord Chancellor (Equality and Human Rights Commission intervening) QBD [2015] 1 WLR, 4497-4533, neither the applicant nor intervener have been able to identify any specific passages of the policy that inscribe unlawfulness. The policy does not assert that minors are to be detained contrary to any statutory provisions. For another, the safeguards set out in the policy are surely designed to ensure that unlawful acts are avoided so far as is consistent with objective knowledge at the relevant time (I have already identified these safeguards and why I consider them sufficient).
60. In respect of Mr Buttler's submission that I should find that the policy implicitly endorses unlawfulness, I pay heed to what was said by Lord Bridge of Harwich in Gillick at p.194 about the need for caution:
"In cases where any proposition of law implicit in a departmental advisory document is interwoven with questions of social and ethical controversy, the court should, in my opinion, exercise its jurisdiction with the utmost restraint, confine itself to deciding whether the proposition of law is erroneous and avoid either expressing ex cathedra opinions in areas of social and ethical controversy in which it has no claim to speak with authority or proffering answers to hypothetical questions of law which do not strictly arise for decision."
Inherent unfairness
61. I turn next to the contention advanced by both Mr Buttler and Mr Chamberlain that the policy under challenge is inherently unfair.
In this context, I first of all reiterate that any issue as to the inherent unfairness of criterion C must be decided on the basis of the policy as a whole. Seen in this context (as already noted) the policy has a number of built-in safeguards. In my judgment their effect is to prevent unfairness.
62. Mr Buttler submits that criterion C is so prone to error as to be inherently unfair. He accepts, however, that in order to show inherent unfairness the focus must be on the structure of the scheme and whether there is something inherent that gives rise to a real risk of injustice: The Lord Chancellor v Detention Action [2015] 1 WLR 5341. It is necessary to show not just a susceptibility to significant error, but a systematic unfairness (or systemic deficiency). Mr Buttler's acceptance was based on a realistic recognition of the rejection by the higher courts of claims based on the mere occurrence of significant error.
63. Mr Buttler's submissions on inherent unfairness were twofold: first he submitted that he did not need to show any specific instances as inherent unfairness could be established by reference to the scheme considered as a whole; second, he could in any event demonstrate it by reference to empirical data. As regards his first submission, I consider that it fails for much the same reasons as his challenge based on unreasonable exercise of power fails: there is no structural unfairness on the face of the policy. His second submission leads me to give specific consideration to the data which the applicant and respondent have produced for these proceedings.
The data
64. The requirement to show systematic unfairness by way of data puts difficulty in the way of any submissions based on sketchy or incomplete data. There has been much argument about the precise meaning and significance of the data respectively provided by the applicant and respondent in this case. That produced by the respondent is set out in several witness statements from Michael Gallagher; that from the respondent is set out in four witness statements of Helen Johnson, Operations Manager for the Children's Section of the Refugee Council.
65. Based on some of their propositions about data made in the parties' respective submissions, they are poles apart - the respondent suggesting theirs show an error rate of around 5%, the applicant suggesting theirs shows an error rate of between 34%-100%. Both also sought to reinterpret each other's statistics to different effect. To my mind, the extent of the disagreement only serves to illustrate the problem that the data submitted by both parties is extremely limited and suffers from a number of evidential and methodological problems.
66. At the case management stage the parties indicated that they wished to call evidence from the individuals who were in a position to explain the relevant data. In the event neither the applicant nor the respondent chose to call these individuals, even though it must have been apparent to both parties that there was a significant variance.
67. Turning to the data produced by the respondent, the starting point (as confirmed by Michael Gallagher in his January 2017 witness statement) is that there is no central recording of cases dealing with under criterion C. The Secretary of State holds statistics for age disputed cases (or "'borderline" cases) as a whole and the outcome from those cases4, but not for non-borderline cases. That is to be regretted; but I accept that the respondent, albeit somewhat belatedly, has used her best endeavours to provide relevant data by undertaking a manual review of individual records and that there has not been a wholesale failure to monitor a policy (which can of course constitute a public law error: see R(European Roma Rights) v Prague Immigration Officer [2005] 2 AC 1 62 [91]).
68. As regards published statistics on age disputed cases as a whole, Mr Gallagher's witness statement of January 2017 states that for a twelve-month period ending September 2016, these show that 1,000 individuals who claimed asylum were treated as age disputed cases. Of the 933 cases that were resolved in that period (principally through local authority age assessments), 67% were assessed to be over 18 despite originally claiming to be a child. Mr Gallagher states that this indicates the way in which giving the benefit of the doubt to individuals who fall within the age dispute process "already provides a precautionary approach". I would accept that this case analysis shows that Chapter 55, through its provision for an intermediary "age-disputed" category to which a benefit of the doubt is given, affords a significant margin of error in favour of applicants claiming to be children. However, as Helen Johnson has pointed out, this cohort refers to those in respect of whom the Home Office has not decided that the person is an adult based on physical appearance/demeanour; hence it does not directly assist with the working of criterion C itself.
69. As regards cases in which individuals are assessed as adults using the significantly over 18 criterion, there appears to have been at least one pilot - that conducted in the Asylum Screening Unit (ASU) for 3 months from 2 April-1 July 2013 to record cases where an asylum applicant's claim to be a child is doubted and there is little or no evidence to support their claimed age and the individual is being treated as an adult on the basis that there appearance/demeanour strongly suggest that they are significantly over 18. There is no mention of any of the ten being subsequently assessed as a child by the local authority.
70. In order to assist the Tribunal, the respondent undertook a manual case file analysis in December 2016 of 39 cases from her casework information database (CID). This showed that in only 5 confirmed cases was there a subsequent local authority age assessment establishing that they were in fact minors (Mr Gallagher's witness statement of 8 May 2017 states that there is one other case in which a local authority assessment in pending; he also clarifies that it appears that only two of the six claimed to be children prior to detention). However, this data set is extremely small, especially bearing in mind that, of the 39, Mr Gallagher's witness statement records that in 13 of them the individuals were granted temporary admission very quickly and of the remainder one person was in police custody and deemed an adult by the court and no further assessment of age was carried out on 11 of those.
71. In order to provide the Tribunal with an additional data set, the respondent also analysed a group of 1,409 people who were processed in the Kent Asylum Intake Unit in the period 16 May 2016 to 20 November 2016. Mr Gallagher's witness statement of 8 May 2017 states that he had requested six months' data from this unit from the most recent period "because we believed it would give a good indication of practice. Kent Intake Unit is one of the main units processing clandestine and illegal entrants in the UK". Of these, 76 were assessed as significantly over 18 and of these seven had had further assessment or have provided further information about their age. "Of those seven cases, three have had Merton compliant assessment concluding they are adults and four have been found to be children without a Merton compliant assessment." It is stated that a further three cases are recorded on CID as having been referred by the Home Office to a local authority for a further age assessment and as at 8 May one had gone missing and two assessments were still awaited. Four were subsequently found to be children by Merton-compliant age assessments. However, it is not explained why of these 76 only seven had further assessments. The fact that 69 of them did not have further assessments does not necessarily mean they were significantly over 18 in fact. The fact that of the seven who did have further assessments, five were found to be children is far too small a sample from which to draw a meaningful conclusion.
72. As regards the data produced by the applicant, the principal study relied on was carried out by the Refugee Council. In her second witness statement of 22 September 2014 Helen Johnson stated that:
"our records show that we have received 15 referrals this year in total of age disputed young people who are being treated as adults and detained purely because of their physical appearance. Out of the 15 cases which were referred to the Refugee Council, we supported nine young people who we believed to be children. Out of these nine cases four cases have now been accepted as children. Four cases are outstanding in that the process of resolving the age of the individual is ongoing?"
73. In her third witness statement of 3 October 2016 Ms Johnson stated that "from 1 October 2014 to 29 December 2015 her organisation received 37 referrals from individuals who claimed to be children but who were being treated as adults based on the physical appearance policy". She avers that of these 37 referrals, the Refugee Council supported 25 of the young people, 12 were not supported for a variety of reasons including lack of capacity. "Of the 25 we supported, 13 have been assessed and accepted as children by a local authority. Seven were released into the care of the local authority pending assessment, of whom two absconded, two were assessed to be adults, one was removed from the country before the age assessment had been completed and two are being looked after as children pending the outcome of court proceedings". She concludes that "at least 13 of those 37 individuals (just over one-third) were in fact children and the physical appearance policy failed to protect them".
74. Her same statement goes on to state that from 1 January to 30 September 2016 her organisation received 21 referrals of age disputed young people in detention. "We supported 18 of these individuals. Of those 18, nine were assessed by local authorities and accepted to be children. Six of the 18 have been released into local authority care pending an assessment of their age by the local authority. One of the 18 was released and absconded. Two of the 18 are still detained with proceedings pending. She concludes: "[t]hus on fuller assessment, it appears that at least nine of those 21 individuals (just over two-fifths) were in fact children and that the physical appearance policy failed to protect them".
75. A further witness statement from Ms Johnson stated that from 1 April 2016 to 30 March l 2017 her organisation received 98 referrals of persons assessed by the Secretary of State to be significantly over 18. It is stated that the Refugee Council accepted 62 of these and of this number 27 were subsequently assessed to be children by local authorities.
76. The difficulties with Ms Johnson's figures are first of all that the details of the cases were not provided even in redacted form. Without those it is impossible to be sure that application of criterion C was the sole or relevant criterion in issue. It appears that some in her cohorts were not detained in any event. Second, there is no adequate identification of the basis on which some significant number of referrals were not accepted.
77. Given the evidential and methodological difficulties identified in both the respondent's and applicant's data sets, I do not consider I have a sufficient evidential basis on which to draw any definite conclusions as regards whether there is a significant risk of error, let alone a risk that is systematic.
European and international norms
78. The thrust of Mr Chamberlain's submission was that criterion C was incompatible with European and international human rights norms. I am not persuaded that this is so. In terms of EU asylum law, (as noted earlier) the UK has not opted into the Asylum Procedures Directive(APD) (recast), although it remains bound by Council Directive 2005/85/EC (Asylum Procedures (APD)).
79. There are no provisions either of the former or the latter which shed light on the policy criterion at issue in this case. Member States are permitted to use medical examinations to determine the age of unaccompanied minors subject to procedural safeguards (Article 17, APD, Article 25, APD (recast)). Article 25(5) of the APD(recast) requires the benefit of the doubt to be given in age-disputed cases, but Chapter 55 achieves that in any event. Mr Chamberlain has suggested that the objective behind both instruments can be informed by Resolution 97/C221/03 adopted by the European Council on 26 June 1997 stating that "[a]ge assessment should be carried out objectively", but this says nothing about what is or is not to be considered an objective approach to assessment. In any event, for reasons elaborated earlier I consider that the initial age assessment policy applied by the respondent is sufficiently objective.
80. Article 6 of the EU Charter of Fundamental Rights (and indeed Article 5, ECHR) confers a right not to be detained arbitrarily and the case law of the European Council of Human Rights (ECtHR) considers that the prohibition on arbitrary detention imposes special restrictions, both substantive and procedural, in relation to the detention of children. The case law of the ECtHR is material because of Article 52 of the Charter.
81. However, insofar as this case law relates to the issue in this case, the most it shows is that the detention of a person who is in fact a child would be arbitrary if not based on an objective assessment: see e.g. Winterwerp v United Kingdom (1983) 5 EHRR CD 305; Mohamed Jama v Malta (App.no.10290/13, judgment 26 November 2015); see also the September 2005 report of the UN Committee on the Rights of the Child on the Treatment of Unaccompanied and Separated Children Outside their Country of Origin (CRC/GC/2005/6), which states that age assessment must be conducted in a "scientific, safe, child and gender-sensitive and fair manner". Mr Chamberlain argues that the policy in issue is arbitrary and non-objective because it is based on "a demonstrably unreliable age assessment", but that ignores that the test of whether an assessment is objective must be considered in the context of an initial age assessment, not a full age assessment and that this policy is not exclusively based on physical appearance/demeanour and contains a number of built-in safeguards. It is common ground that (absent unusual circumstances) it is not possible for a full (Merton-compliant) age assessment to be done at the stage when an applicant who claims to be a child is first being considered for detention. As explained earlier, it is most certainly not possible to do it within the 24-hour period identified as the outer limit for detention of children by the amended 1971 Act.
82. Mr Chamberlain submitted that the decision in Mohamed Jama, which concerned the detention of asylum seekers claiming to be minors, demonstrates that Article 5(1) ECHR imposes not only substantive but also procedural constraints on the detention of minors claiming to be children. I concur, but in this case the Court first of all did not consider that detention of a minor per se was contrary to Article 5(1), but rather that "detention of minors should be no longer than what is absolutely necessary to determine their identification and health status"; and secondly the Court said nothing to indicate that the adoption by a State party of a policy such as the one in issue in this case would be contrary to substantive or procedural safeguards contained in Article 5.
The applicant
83. The basic particulars relating to the applicant have been set out earlier at paragraphs 10-13. Given that Mr Buttler sought to use the applicant's case as an illustration of why the policy applied to him was unlawful, it is necessary to comment on some particular aspects of what happened in his case and what light the treatment of his case sheds on the policy at large.
84. As regards his initial age assessment, it has already been observed that the applicant was interviewed on 11 March 2014 and that the AIO note states simply that: "I have age assessed this subject as over 18, his physical appearance is that of an adult in his mid-twenties, with receding hairline and well defined jawline, Adams apple etc. His physique also appears to be well developed. I am satisfied that he is not 16 yrs of age." The CIO note was in the exact same terms. These minutes strongly suggests that not just physical appearance but demeanour also was assessed by the AIO.
85. There is nothing in the above statement to the effect that their assessment had regard to whether there was other credible evidence available. At the same time, it can safely be inferred that the AOI had in mind that the only other relevant evidence before him was the applicant's statement that he was born on 15 February 1998. The AIO interview note records the applicant as stating that he had no ID or passport. Unarguably the AIO must have been satisfied that there was no other credible evidence (and indeed, as is agreed, there was none). The CIO decision would also appear to have had regard to the state of the surrounding evidence. In her witness statement, she stated that "[i]n the absence of any documentary or any other evidence provided by the applicant, I authorised that the applicant should be treated as an adult based on his physical appearance."
86. In any event, when on 11 March 2014, the respondent prepared and served her decision letter, the latter made explicit that her decision regarding his age was not based purely on physical appearance/demeanour. Its conclusion was stated as being that:
"In the absence of any credible documentary evidence to the contrary, the Secretary of State does not accept that you are a child and from this point therefore you will be treated as an adult applicant for asylum".
87. The same letter also informed the applicant of his remedies if dissatisfied:
"The Home Office's determination of your age does not prevent you from approaching your local authority Children's Services department with a view to them undertaking their own assessment t of your age."
88. There is also a commitment to review in the light of any Children's Service assessment concluding he is a child. It is stated that if such an assessment is provided and the Home Office is provided with sufficient evidence of this, "the Home Office's determination of your age will be reviewed". We know that is indeed what happened: see paragraphs 12-13 above.
89. On 12 March the applicant was served with a Screening Officer's report in which it is stated that he is being treated as an adult because "[h]is physical appearance/demeanour very strongly suggests he/she is significantly over 18 and no other credible evidence exists to the contrary". I note that by this report the AIO does here include in the assessment the fact that "no other credible evidence exists to the contrary". The applicant is recorded as replying "I cannot argue with you".
90. Following a request for clarification of the EURODAC search results sent on 12 March 2014, the UKVI's Asylum and Immigration Liaison Officer in Italy, stationed within the Italian Ministry of Interior, Italian authorities, confirmed on 7 December 2016 that the age stated in their records (15 February 1998) was that given by the applicant. The applicant has addressed this event in his witness statement of 16 July 2014 in which he stated that "I do not know why they [the Italian authorities] have recorded 1998 instead of my correct date of birth which is 1998" (I will assume that that the applicant meant to say here his correct date of birth was 1996).
91. To my mind the EURODAC search results are only of relevance in showing that the respondent's decision to detain the applicant beyond the first day was further supported by her own inquiries. I do not consider that what is stated about what happened to him in Italy in the applicant's witness statement signed several months later was clear or specific enough to warrant a decision to release him from detention.
92. As noted earlier, the applicant initially presented at Newport Children's Services on 8 January 2015 when he was assessed as being an adult over the age of 18 years. The first age assessment conducted on the applicant was dated 24 February 2015. The social worker signing the report concluded that his age was "19-21 years". The second age assessment was carried out by Newport Children's Service on 6 January 2015, two different social workers concluding that he was "over 18 years of age". This assessment was confirmed in an addendum report prepared following an interview on 12 March 2015 to go through the age assessment in detail with him. On 2 September 2015 two (again different) social workers instructed by Newport City Council to carry out an independent age assessment on the applicant produced their report. Despite observing in their analysis that "[B's] interaction, body language together with his verbal, written and pictorial communication demonstrated traits and characteristics associated with the expected developmental stage of an older young person", the social workers' conclusions was "we believe [BF] is his stated age of 17 and his claimed date of birth is probably correct".
93. Even though the above brief history of age assessment of the applicant might be thought to afford a vivid illustration of how "inexact" a science such assessment continues to be, it remains that applying established case law the current position is that the applicant is entitled to argue that during the periods of his detention under Chapter 55.9.3.1 he was a minor and that such detention, at least from the date on which paragraph 18B came into force, he was unlawfully detained. However, I am not seized of any claim for unlawful detention. As will be evident from my earlier analysis, the current state of objective assessment of his age does not impugn the lawfulness of the policy set out in Chapter 55.9.3.1. It simply means that he can pursue a claim for unlawful detention for the relevant periods - on the basis of strict liability.
Conclusion
94. For the reasons set out in the course of identifying and analysing the principal issues addressed by the parties, I conclude that the applicant's application for judicial review, based exclusively on a challenge to Chapter 55.9.3.1. must fail.
95. Whilst I have concluded that the challenge to the lawfulness of Chapter 55 fails, I have observed in the course of my judgment that failure to monitor a policy can constitute unlawfulness: see the remarks of Baroness Hale in R(European Roma Rights) v Prague Immigration Officer [2005] 2 AC1 62 [91]). I have also observed that whilst the respondent has taken some steps to monitor this policy, she had done so belatedly and largely as a result of directions from the Court of Appeal and this Tribunal. Further, the existing data she has produced regarding the operation of this policy is deficient in more than one respect. It seems to me, therefore, that the respondent should give consideration to putting in place a centralised monitoring mechanism from which it can be clearly seen what are the numbers of persons claiming to be minors assessed as being significantly older than 18 who are detained for that reason but later conclusively established to have been minors at the time of detention.
APPENDIX
Oral submissions
96. Mr Buttler confirmed that the challenge brought was solely to the Respondent's policy, not to its application in this case, since the policy was applied to the Applicant as it was intended to apply.
97. In procedural terms, it was important to bear in mind, said Mr Buttler, that the Applicant had submitted evidence that the policy was not working lawfully and the Respondent had been put on notice as to the need to explain and file evidence showing the policy was operating lawfully. He referred to the order made by the Court of Appeal for the Respondent to submit detailed grounds of defence and evidence by 6 December 2016.
98. Mr Buttler then addressed the evidence relating to the harm done to children by detention, which was he submitted incontrovertible. Logically such harm would affect persons who looked older than 18 but were in fact minors.
99. As regards the policy, Mr Buttler said it was well-established that it was for the court or Tribunal to construe the meaning of any policy. The focus of the challenge was confined to criterion 'C' set out in chapter 55.9.3.1. That criterion had been part of the policy since 2006, notwithstanding changes in the statutory framework, the coming into force in 2009 of s.55 of the 2009 Act and the amendment to Schedule 2 of the 1971 Act prohibiting detention of children beyond 24 hours. Those screened out under 'C' were denied the safeguards afforded to age-disputed cases - they would receive no further assessment unless they arranged it for themselves. It was no answer to say to a person affected "you are free to go and obtain a Merton- compliant assessment" because by that time they would already have been detained beyond 24 hours. They were also liable to rapid removal. Significantly, submitted Mr Buttler, the policy gave no guidance on how criterion C was to be applied, in terms of what "significantly" meant in terms of numbers of persons or what physical characteristics officers should be looking to check. There was no proper system of monitoring through central recording.
100. Mr Buttler took issue with the nature of the visual assessment method relied on in criterion 'C'. Whilst there was no scientific equivalent to DNA when it came to age assessment, Merton-compliant age assessment was the best method available and it regarded visual assessment as a thoroughly unreliable method. Visual assessment was an inherently subjective and impressionistic exercise. The Respondent's own evidence (given by Mr Gallagher) confirmed that none of the officers who implement this policy have any training on how they are to go about visual assessment or on how to apply the "very strong" and "significant" thresholds. The Respondent's position in defending this challenge (in which she claims the policy is 'workable') was also inconsistent with the position she took in the AA (Sudan) case where she said it was not workable.
101. As regards the correct legal tests to be applied, Mr Buttler submitted that criterion C of the policy permitted unlawful action, since because of para 18(b) of Schedule 2 there was a statutory prohibition on the detention of children. Criterion C wrongly permitted officers to consider they could lawfully detain persons if they had a reasonable belief they were significantly older than 18. Parliament's clear intention by this amendment was to stop children being detained, not simply to ensure compensation if they were detained.
102. Mr Buttler submitted that the screening procedure under challenge generated an unacceptable level of risk and a "serious possibility" or a proven risk of injustice. There was evidence of the policy not working in a very significant number of cases. He pointed out that in order to identify an inherent flow in the visual assessment system, it was not necessary he provide individual instances, but in fact he could.
103. Mr Buttler contended that the Upper Tribunal was well-equipped to conduct an objective assessment of the policy. Such assessment had to be made in the context of the policy and the wider statutory framework. If the Upper Tribunal considered it was not possible for the officials applying this policy to make a Merton-compliant assessment within 24 hours, then that simply meant the visual assessment policy was unavailable and it was for the Respondent (and if necessary Parliament) to come up with a policy that was workable.
104. Mr Buttler sought to evaluate the evidence provided by the parties in this case. On the one hand the Respondent had not produced evidence to show the policy effectively avoids child detention; on the other hand, the Applicant had produced evidence from a range of expert bodies stating that visual assessment is a flawed method. If a consultant paediatrician or a social worker with years of training cannot assess whether anyone is certainly over 18, how possibly could an untrained Immigration Officer? The data produced by the Home Office was from a small sample and was flawed in a number of respects. Even on their own figures the error rates were in the region of 28-100%. On any view these were troublingly high margins of error.
105. Mr Chamberlain for the Intervenor, the Equality and Human Rights Commission, submitted that the visual assessment policy was capable of causing serious harm to people who are in fact children. It was true that neither the visual assessment method nor the Merton-compliant method of assessment were scientific, but the latter was the only one that on the state of current learning, was objectively based. The visual assessment method, by contrast, was inherently unreliable; it could never be a major reason for age assessment. Expert opinion was agreed that something more than visual assessment was always needed. The policy failed to apply a Merton-compliant assessment at any point. It did not even, for example, state that detention would be limited in time so that a Merton-compliant assessment could be carried out 'as soon as possible'. The policy did not even warn officials that visual assessment was notoriously unreliable.
106. Mr Chamberlain submitted that the policy could be demonstrated to be unlawful purely by reference to case law since that made clear that to establish inherent unfairness it was not necessary to show actual breaches (Medical Justice Council, para 41). Yet evidence had been provided and that from the Refugee Council was striking. Applying the test of 'inherent unfairness', the Respondent's policy clearly failed that test, as the system established by the policy had no capacity to react to error. It was not based on objective medical evidence. As such criterion 'C' was an arbitrary criterion, particularly now that domestic law through para 18(b) imposed a statutory bar on detaining minors.
107. Mr Chamberlain submitted that the Upper Tribunal should be cautious about speculating what other policies could be put in place of the one under challenge; it was not for judicial bodies to try and redesign Secretary of State's policy. Whatever policy was applied, it had to incorporate an objective method of assessment sufficiently reliable to avoid detention of minors.
108. Mr Strachan for the Respondent averred that a challenge to policy could only proceed on well-established grounds of error of law, inherent unfairness or rationality. The Applicant confined his challenge just to criterion 'C' but that criterion was just one of four very limited circumstances creating exceptions to the presumption in favour of liberty of the subject. Contrary to the submissions of the Applicant and Interviewer about lack of safeguards, the policy incorporated several. It was predicated on the presumption of liberty save in exceptional circumstances. There was an inbuilt threshold designed to allow for a considerable margin of error. Lord Toulson had described the policy in AA (Afghanistan) as "detailed and useful". The policy required the decision to be reviewed by a more senior officer acting as a 'second pair of eyes'. The statistics provided by the Respondent showed that in as many as 69% of cases within the category of age disputed cases were later assessed by Merton-compliant methods to be adults. Any policy needed to balance these difficulties. The fact that the Supreme Court had established strict liability for unlawful detention of minors in AA (Afghanistan) did not render the policy unlawful. The SC were not seeking to address how officials make decisions, only the consequences for getting it wrong nor did the fact that para 18(b) of Schedule 2 to the 1971 Act prohibits detention of minors beyond 24 hours. The mere fact an official gets it wrong under the policy does not render it unlawful. Indeed, the change in the law fortified the policy because officials now knew that if they got it wrong there would be an additional disbenefit to the SSHD, in that compensation would have to be paid on a strict liability basis.
109. Mr Strachan argued that the Applicant had sought to mischaracterise the policy. In relying on visual assessment it was not seeking to deny that visual assessment was not the objective method to be applied in the general run of cases. Mr Strachan said he did not accept the Respondent has been inconsistent in how she had defended the policy under challenge as between this case and Ali.
110. Mr Strachan strongly disavowed the Applicant's submission that the SSHD was hesitant to providing evidence in defence to this challenge. The witness statements from Mr Gallagher explained the difficulties in obtaining relevant statistics and that the SSHD had commissioned a manual collation of data.
111. Mr Strachan said it was wrong to portray the immigration officials administering the policy as having no guidance as regards methods of age assessment and he referred in this context to passages from the Asylum Instructions on Assessing Age.
112. In terms of case law, Mr Strachan contended that on a proper analysis the policy under challenge was not dislodged by any relevant principles: the Applicant and Interviewer both accepted that they had to overcome a high threshold. The Gillick line of cases did not help as with them the policy misstated the law. It was unfortunate as well that the Applicant had sought to characterise the legal error as unacceptable risk of wrong outcome, since the higher courts in a series of cases had made abundantly clear that unacceptable risk was not enough; there had to be inherent unfairness. Given that Mr Buttler accepted the challenge was one to procedural fairness, that entailed that one has to look at the policy as a whole and not take criterion C in isolation. That meant accepting it arose in the context of an initial interview and that it contained a number of significant safeguards. The policy patently did not deny applicants access to justice. That also meant accepting that had to be shown was systemic deficiency in the system. Inherent flaws did not necessarily need to be established by individual cases, but the data provided for this hearing fell well short of establishing systemic deficiency in any event. The criteria voiced in the case law as regards using visual identification as a method of age assessment were all made in the context of borderline cases, whereas the policy under challenge was concerned with non-borderline cases. There was no deprecation of visual assessment as such.
113. In response to questions I raised regarding the 'Adults at risk' policy forming 55b of the Respondent's policy on detention, Mr Strachan accepted that it did adopt a visual assessment based on self-certification in certain contexts, but so he submitted did the policy under challenge, in applying a presumption that individuals would be accepted as minors except in four limited circumstances. Compared to the treatment of the position of adults at risk and pregnant women, the policy under challenge was even more cautionary.
114. Dealing with the Applicant's three main heads of challenge, Mr Strachan said that the challenge based on rationality had to fail because what had to be considered was the overall system and the mere fact some detained people might turn out to be minors (by virtue of Merton-compliant age assessments) did not invalidate the policy. As regards the attempt to deploy a challenge based on 'unacceptable risk', that was simply the wrong test. There was no Gillick-type error of law stated in the policy.
115. Turning to the data produced to the Upper Tribunal, Mr Strachan submitted that the error rate based on subsequent Merton-compliant age assessments was only 5%. As regards the data produced by the Applicant, he said it contained inbuilt biases and it did not explain the basis of the 98 referrals and the it did not safely identify the reasons why 47 of that cohort those not detained.
116. Mr Strachan said that the Respondent had not failed to respond to the arguments advanced by the Intervener; it was simply that she considered those arguments not to apply against the Respondent. Neither the international cases nor the ECHR jurisprudence told against the policy under challenge.
117. In response Mr Chamberlain considered that whilst it was accepted the Applicant and Intervener had to show inherent unfairness in the context of the policy and statutory framework, the data provided to the Upper Tribunal demonstrated "systemic failure".
118. Mr Buttler submitted in response that the Applicant had established the policy had inherent flaws in procedural terms. Even leaving aside that Mr Gallagher's latest witness statement was inconsistent with his first as regards the relevant figures, the Home Office figures showed 5 out of 14 or 40 out of 135 detained adults were later assessed to have been children. Mr Buttler said Mr Strachan was wrong to seek to invoke obiter comments made by Lord Toulson in AA (Afghanistan); there was no challenge in that case to the visual assessment criterion. By contrast, the recent Court of Appeal decision in AA (Sudan) did assist because it addressed the implication of the changes made to the statutory framework by para 18(b) of Schedule 2 to the 1971 Act and it sets out an express rejection of the notion that immigration officials can any longer rely on reasonable belief in applying detention policy. In light of para 18(b) and the Court of Appeal clarification the Respondent could not carry on regardless as if these developments had not occurred. If a significant number of persons detained as adults were children, that amounted to systemic failure of the system. The Gillick line of cases was applicable because whilst the policy contained no express misstatement of the law, such misstatement was implicit in the policy since it implicitly says detention is lawful if based on reasonable belief. The visual assessment method endorsed by the policy was inherently unfair because it was well-established that age assessment had to be holistic.
119. In response to Mr Strachan's point that the policy had to be understood in the context of an initial interview, Mr Buttler said that the interview record of the Applicant did not deal with age at all. Mr Buttler said he was well aware the policy contained various passages informing immigration officials about age assessment, but it said nothing about how to apply visual assessment; it was not relevant to consider what policies could be operated instead of the one under challenge, but it would be wrong to assume that there was nothing better that could be done in the first 24 hours absent a Merton-compliant assessment, e.g. a trained social worker could be asked to do a same day assessment, even if not complying with full Merton requirements.
120. Mr Buttler urged the Upper Tribunal not to overlook the serious consequences of error involved in application of a visual assessment criterion as demonstrated by the expert evidence on the harm detention causes children. Whilst there was no challenge to the application of the policy to the applicant, it was significant that a later age assessment showed he was a child when detained. The Applicant's was clearly, therefore, a borderline case. The Refugee Council data showed that 40 out of 42 cases of adult detention reviewed by the local authority were found to involve children.
121. Mr Buttler took issue with the Respondent's argument that the policy had to weigh in the balance public interest considerations arising from the fact that there are a significant number of cases where those treated as minors are found to be adults. The policy under challenge did not impose any obligations on local authorities. If the Home Office detention policy led to adults who claim to be minors being spared detention, that did not in any way oblige local authorities to accept such persons as minors

Signed:

Dr H H Storey, Judge of the Upper Tribunal

Date: 31 July 2017
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