Government wins appeal over lawfulness of guidance on “short-form” age assessments at Kent Intake Unit

The Home Secretary has won an appeal over the lawfulness of guidance issued to social workers in the Kent Intake Unit (KIU) relating to the "short-form" assessment of the age of unaccompanied asylum seekers.

The KIU is a short-term holding detention facility in Dover. It is part of the National Asylum Intake Unit, which is responsible for confirming the identity of asylum seekers and registering asylum claims through a screening process.

The KIU Guidance came into force on 18 September 2020, was updated on 3 December 2020, and remained in force for a total period of around 16 months. It applied only at the KIU, and only to individuals who were newly arrived in the UK and had been detained under immigration powers. It was only ever intended to be temporary, and was withdrawn on 15 January 2022 for reasons unrelated to the appeal.

In R (MA and HT) v Secretary of State for the Home Department [2022] EHWC 98 (Admin) Henshaw J concluded that the KIU Guidance and the decisions made as to the ages of the two respondents, MA and HT, were unlawful, and that their detention was also unlawful insofar as it was lengthened for the purposes of carrying out the KIU age assessments.

Permission to appeal was granted on the sole ground that the Judge misdirected himself on the correct approach set out by the Supreme Court in R(A) v Secretary of State for the Home Department [2021] UKSC 37, [2021] 1 WLR 3931 and in BF(Eritrea) v Secretary of State for the Home Department [2021] UKSC 38, [2021] 1 WLR 3967, cases where a policy is alleged to be unlawful by reason of what it says or omits to say about the law.

In MA & Anor, R (On the Application Of) v Secretary of State for the Home Department [2022] EWCA Civ 1663 Lady Justice Andrews concluded that “on a proper application of the principle set out in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 and explained by the Supreme Court in R(A) v SSHD and BF Eritrea, the KIU Guidance was not unlawful, and the Judge was wrong to conclude otherwise”.

Lady Justice Carr and Lord Justice Baker agreed.