BF (Eritrea): Challenging The Lawfulness Of The Secretary Of State's Policy Guidance

Published date30 August 2021
Subject MatterLitigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
Law FirmRichmond Chambers Immigration Barristers
AuthorMr Alex Papasotiriou

In a judgment given on 30 July 2021 in R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38, the Supreme Court assessed the lawfulness of policy guidance issued by the Secretary of State for the Home Department in relation to the age assessment of asylum seekers. This was with reference to the principles set out in a judgment given on the same day, in R (A) v Secretary of State for the Home Department [2021] UKSC 37, which will be examined in a separate article.

Facts of BF (Eritrea)

The respondent in this case is a national of Eritrea who entered the UK on his own and claimed asylum as an unaccompanied child. Despite claiming he was 16 years old, he was assessed by Immigration Officers to be an adult and was treated as such at the outset. He was later found to be a minor, following a Merton assessment.

The Court's judgment explains that there are significant differences in the legal regime applicable to an asylum seeker depending on whether they are a child aged less than 18 or an adult aged 18 or over. Schedule 2 to the Immigration Act 1971, as amended by the Immigration Act 2014 with effect from 28 July 2014, makes distinct provision in relation to the detention of unaccompanied children as compared with adults, as to the location where they may be held, the conditions to be satisfied if they are to be detained, and the period for which they may be detained. This enshrined in law a matter that was previously merely policy.

In that context, the Secretary of State has issued policy guidance for immigration officers on assessing the age of asylum seekers, when they claim asylum as a child and when there is doubt as to their age. In the absence of other evidence of age available, one criterion set out in the guidance (known as criterion C) is:

"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." (Emphasis in original)

BF issued a judicial review claim, seeking the quashing of this part of the guidance on the grounds of unlawfulness. The relevant ground in the appeal to the Supreme Court was that, when the guidance is followed, it does not remove the risk that an asylum seeker may be assessed to be an adult, on account of looking older, when they are in fact a child, and be treated unlawfully as a result. The claim was dismissed in the Upper Tribunal, but it was allowed on appeal to the Court of Appeal. The Secretary of State appealed further to the Supreme Court.

The challenged policy guidance was set out in two Home Office documents: Chapter 55 of the Enforcement Instructions and Guidance ("the EIG") and the asylum instruction entitled Assessing Age. Both included criterion C. The two documents were revised by the time of the appeal in the Court of Appeal and following the legislative change to the 1971 Act.

The Upper Tribunal's decision in BF (Eritrea)

The submissions in the Upper Tribunal included that criterion C was...

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