The High Court has ruled that the Home Office acted unlawfully in detaining unaccompanied young people for age assessments at a port in Kent. Shu Shin Luh and Antonia Benfield explain why.
Since September 2020, hundreds of unaccompanied young people arriving in Kent have been detained by the Home Secretary for the purposes of carrying out a truncated age assessment on them. This was a result of Kent County Council refusing to provide newly arrived unaccompanied young people statutory care as required under the Children Act 1989. The Home Secretary hastily published the Kent Intake Unit (“KIU”) Social Worker Guidance for the detention and processing newly arrived young people through an age assessment process where the Home Secretary cannot be sure that the young person is not a child but an adult. This guidance was issued without consultation with stakeholders. Hundreds of children were subject to this guidance and age disputed under a truncated process that operated without observing basic fairness or providing young people with an appropriate adult.
On 19 January 2022, the High Court handed down judgment in R (MA and HT) v Secretary of State for the Home Department  EHWC 98 (Admin), finding (at ) that “the Guidance in its current form, and the age assessments carried out in relation to the Claimants, were not lawful in the particular respects I have identified; and that if and insofar as the Claimants’ detention was lengthened for the purposes of carrying out those assessments, it was unlawful.”
MA arrived in the UK in mid-December 2020 after an arduous journey locked in the back of a lorry without much air and little food for several days. He was exhausted and frightened, having been separated from his mother whilst in France. He was detained on arrival. His age assessment was carried out at around noon on the day of his arrival. It only lasted for 42 minutes and concluded he was 20 years old. MA did not have an appropriate adult present at the assessment. He did not have any opportunity to know the reasons for the age dispute, to provide clarification or further information about his age. Instead, shortly after the KIU age assessment concluded he was an adult, he was transferred to Yarl’s Wood Immigration Removal Centre for three days before being released to adult asylum support accommodation in Coventry. He was given no documentation recording the decision on his age from either the KIU assessing social workers or D, and did not know to bring a challenge until the Refugee Council referred him for legal advice and assistance.
HT arrived in the UK in January 2021 after enduring a perilous 7-8 hour journey in a rubber dinghy across the English channel. He was soaking wet, tired and terrified when he and others on the boat were rescued by a Border Force boat. He was subject to a truncated age assessment four hours later at 2.05 pm, which lasted for one hour and concluded that he was 21 years old. Like MA, he did not have an appropriate adult, and did not have a fair opportunity to know the reasons for the age dispute, provide clarification or further information about his age. Instead, that same evening after the age assessment, he was transferred to Tinsley House Immigration Removal Centre for five days before being put in adult asylum support accommodation in Coventry. During his detention at Tinsley House, D made a decision that his case was suitable for inadmissibility action under Immigration Rule 345A, a provision that applies only to adults and not children, and a notice of intent was sent to that effect.
They challenged the KIU Social Worker Guidance on grounds that it was unlawful and in breach of section 55 of the Borders Citizenship and Immigration Act 2009 for requiring age assessments to be conducted in immigration detention shortly after the young person arrives in the UK, and for directing social workers only to carry out truncated age assessments (lasting no more than an hour) in a process that derogates from well-established procedural safeguards, described in short-hand as a Merton principles which the Claimants argued were required. The KIU Social Worker Guidance, formulated and operated in this way, was incompatible with the Home Secretary’s own carefully calibrated policies on handling age disputes which bans the detention of young people who require an age assessment.
The claimants argued that subjecting them to an age assessment in detention under an unlawful policy was itself unlawful. Further, the outcome that they were adults, in reliance on an unlawful policy, was unlawful and their detention for the purposes of subjecting them to an age assessment was unlawful.
The Home Secretary conceded that there were procedural irregularities in the way the Guidance was applied to MA and HT but denied that it was unlawful to detain them pending an age assessment or to operate guidance at the KIU which conflicted with the Home Secretary’s established age assessment policies. In particular, the Home Secretary denied that the truncated detained age assessment process was unlawful for not failing to provide the young person with an appropriate adult or give him a fair opportunity to know the matters taken against him in respect of his age.
In a careful and considered judgment, Mr. Justice Henshaw reviewed 20 years of jurisprudence on the principles of a lawful age assessment and held that the KIU Social Worker Guidance was unlawful on the basis that:
- The Guidance directs age assessments to be done on a truncated timescale in cases where the young person’s where neither the immigration officer nor the KIU social workers can say that the young person’s appearance and demeanour show that they are significantly more than 18, or even simply obviously more than 18. 
- Such assessments, in substance, require the same analysis and approach that a local authority undertakes when conducting a full “Merton-compliant” age assessment. Established safeguards exist for those assessments. 
- The SSHD is seeking to address very difficult circumstances with increasing numbers of arrivals and managing the tension between observing the welfare principle regarding children and the need to maintain effective immigration control. But that does not permit derogation from the established procedural safeguards for a fair ad appropriate age assessment process. Those safeguards include the provision of an appropriate adult for the young person and a “minded to” (provisional decision) opportunity before a final decision is arrived at on age. 
- Those features are equally necessary in order to make a reliable assessment of age at the initial stage (and even applying a ‘clearly an adult’ standard) of an individual whose appearance and demeanour do not already indicate that he/she is obviously an adult. This is even more so when individuals are newly arrived .
- It is in the circumstances inconsistent with the principles established in jurisprudence, including the need for a fair and careful age assessment, to seek to do this in respect of a young person who has just arrived in the UK, does not appear significantly over 18 and whose age is in doubt. 
- The Guidance sanctions or approves a process which is not in accordance with the law because no appropriate adult is provided and because the truncated timescale for the age assessment virtually precludes any effective “minded to” process. .
- Same broad principles of the need for minimum standards of inquiry and fairness must equally apply to an initial assessment , with appropriate safeguards being required both under common law principles and the section 55 duty .
The judgment appropriately focuses on fair process and the required safeguards, which is not determined by the length of the assessment itself.
The Judge rejected the suggestion made by the SSHD that safeguards cannot be justified as not required retrospectively and after a decision has been reached on age, on the basis that there is a need for such a decision to be reached after a reliable interview and this cannot occur when from the outset, the process lacked features to ensure that it was reliable .
In relation to detention of putative children at the KIU, Henshaw J held that any prolongation of detention for the purpose of the assessment which is not designed to comply with Merton principles was unlawful . Whereas it may not be unlawful for detention for the purpose of a short formalised process, within the overall parameters of section 16(1) of Schedule 2 of the Immigration Act 1971, provided that it complies with Merton principles  which the KIU Guidance does not allow.
On 14 January 2022, in advance of the hand-down of this judgment, the Home Secretary withdrew the KIU Social Worker Guidance.
In December 2021, the HM Chief Inspector of Prisons and the Independent Monitoring Board published reports heavily critical of the detention and conditions of detention of unaccompanied young people at the Kent Intake Unit.
Coventry City Council was originally named as a defendant in these proceedings for refusing to take either claimant into its care pending a lawful and fair age assessment. However, both claimants were subsequently taken into the care of the council further to an interim court order. Coventry City Council therefore did not participate in the hearing.
Kent County Council was named as an interested party in these proceedings and in court documents sought to defend the Home Secretary’s truncated age assessment carried out in detention, citing its stretched resources as a reason for refusing to take unaccompanied young people into its care (even though it continued to provide services to British children) between August and December 2020 and June and September 2021. Kent decided not to participate in the hearing.
Shu Shin Luh and Antonia Benfield are barristers at Doughty Street Chambers. They acted for the claimants, instructed by Martin Bridger and Ella Royle of Instalaw and the Refugee Council acting as litigation friend. They are members of Doughty Street’s Public Law, Community Care and Immigration Detention teams and the Children’s Rights Group. They have appeared in many of the leading judgments pertaining to the rights of unaccompanied children and young people. Shu Shin is the deputy team leader for the Children’s Rights Group.