The Court of Appeal yesterday (23 May) ruled that the Home Office’s policy on deciding the age of young people seeking asylum is unlawful and must be rewritten, as it fails to ensure that children are not mistakenly treated as adults. In ordering the guidance to be revised, the judge stated that the term ‘significantly over 18’ was not sufficiently precise as to avoid huge differences in how it was applied, giving rise to the risk that children would be wrongly deemed adults and treated as such in the asylum system.

The judgment is a very important step in protecting unaccompanied children seeking asylum from being identified as adults; the Refugee Council works with many children in this situation and has been raising concerns for many years, both directly with the Home Office and through publicising the issue. We published Not a Minor Offence in 2012 and just last month participated in a BBC Newsnight investigation.

Responding to the judgment Refugee Council’s Head of Children’s Services Helen Johnson OBE said

“We got involved in this case because every day we see children who have been deemed adult under this Home Office policy, leaving them feeling unsafe, frightened and unsupported. We are very pleased that the Court of Appeal agreed with us that the current wording of the policy does not provide sufficient guidance to ensure that children are not wrongly treated as adults. This ruling means that the Home Office must be much more cautious before it makes this decision and we hope that revised guidance will put an end to these errors once and for all.”

The challenge to the policy was the residual issue remaining in the case known as BF (Eritrea) who was represented by Scott Moncrief Solicitors and Matrix Law Chambers. The Equality and Human Rights Commission intervened.

On Wednesday 29 May the Home Office issued its interim guidance. The main change in this guidance is that instead of an Immigration Officer having the power to decide someone is adult if their appearance and demeanour very strongly suggest the person is significantly over 18, the policy states instead that:

‘for a person to be assessed as an adult in these circumstances, their physical appearance and demeanour must very strongly suggest that they are 25 years of age or over.’

More information about the age dispute process for young people seeking asylum, and the implications of being incorrectly judged to be an adult, are outlined in our policy brief that has been updated following this Court of Appeal judgment.