Protecting children seeking asylum from being detained based on appearance
BF (Eritrea) v Secretary of State for the Home Department
A person seeking asylum arrived in the UK at the age of 16. Officials thought he looked over 18 and he was held in immigration detention. He was later found to have told the truth about his age. The Home Office’s own rules say that unaccompanied children should not be detained. The person seeking asylum unsuccessfully challenged this in the First-tier Tribunal (Immigration and Asylum Chamber), and again in the Upper Tribunal. He then appealed the UT’s decision in the Court of Appeal. We intervened in the Court of Appeal to challenge guidance from the Home Secretary which said that people seeking asylum who look over 18 can be treated as adults.
Is the practice of visually assessing the age of children seeking asylum unlawful?
Why we were involved
The Home Secretary has given guidance to officials which says that if a person seeking asylum looks over 18 then they can be treated as an adult. We know that this had led to children being held in immigration detention, which breaks the Home Office’s own rules.
What we did
We used our legal powers to intervene in the case, arguing that the Home Secretary’s guidance broke the law while making it clear that it had resulted in children being held in detention.
The case was successful; the court’s ruling confirmed that the Home Secretary’s guidance was unlawful.
Who will benefit and how
In 2018, nearly 2,900 children applied for asylum having arrived alone in the UK. We find it unacceptable that children who are already vulnerable and likely to have experienced significant trauma can be held in detention solely because an official thinks they look older.
The outcome of this case will protect other children seeking asylum from being detained.