MA & Anor, R (On the Application Of) v Coventry City Council & Anor [2022] EWHC 98 (Admin)

The UK: High Court rules that the way the Home Office carried out age assessments and detained applicants was unlawful

On the 19 January 2022, the High Administrative Court decided that the Kent Intake Unit (KIU) Social Worker Guidance pursuant to which the applicants' ages were assessed, the age assessment decisions taken in respect of the applicants and their prolonged detention were unlawful.
 
The applicants, MA (Kuwaiti national) and HT (Iranian national), arrived in the UK on 15 December 2020 and 10 January 2021 respectively and were taken to the Kent Intake Unit, a short-term detention facility located within the Port of Dover. The age assessments were conducted on the same day of their arrivals and without the opportunity to have an independent appropriate adult, or to provide clarification, correction or further information about their age; moreover, both interviews lasted between forty minutes and one hour, after which it was concluded that they were 20 and 21 years old. Shortly after the applicants' ages were established, they were transferred to an Immigration Removal Centre for three and five days before being released in an adult asylum support accommodation in Coventry.
 
The Court first recognised that detention for the purpose of a short formalised process, within the overall parameters of the duration of Schedule 2 paragraph 16(1) of the Immigration Act 1971, would not be unlawful provided it is in accordance with a Merton compliant age assessment as set out in R (B) v London Borough of Merton. Conversely, the Court considered that any prolongation of detention for the purpose of an initial assessment which does not comply with applicable legal standards and, is in practice not designed to abide by the Merton principles is unlawful.
 
The main problem perceived by the Court in the present case lied in the way in which the KIU Social Worker Guidance provides for short form age assessments to be done in cases where the individual is not clearly over 18. The Court held that both, common law principles and section 55 of the Borders, Citizenship and Immigration Act 2009, require a fair and careful process involving safeguards even when making initial age assessments of individuals whose appearance does not obviously indicate that he or she is an adult. This is even more necessary where the individual has only reached the UK from an arduous journey in the last 24 hours, which will most likely impact his or her ability to respond to questions concerning his or her family history, education, and life narrative. On this basis, the Court found that to seek to assess age in a non-obvious case where an individual has just arrived at the UK and has been detained without the support of an appropriate adult, is inconsistent with the principles set out in the case-law and such short form assessment cannot be qualitatively equated to a Merton-compliant local authority assessment.
 
From all the above, the Court concluded that it is a problem that the Guidance provides for short form assessments to be used in cases where the social workers have not concluded that it is clear that the individuals are over 18. It follows that the Guidance is also inconsistent with the pre-existing age assessment policies and guidelines.