The Court of Appeal today allow an appeal by BF (an Eritrean national), supported by the Equality and Human Rights Commission, against the Upper Tribunal’s dismissal of his judicial review challenge to the Home Secretary’s policy for assessing the age of those detained under immigration powers.
The policy was that, where an individual claimed to be under 18, this should be accepted unless “their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary” (emphasis in original).
The majority (Underhill and Baker LJJ) accepted the argument on behalf of BF and the Commission that this formulation contained no recognition of the unreliability of age assessment based on appearance and demeanour and, consequently, how wide a margin of error is required. Although the policy had been amended since the proceedings were issued, this defect remained. Without further guidance, there was a real risk of children being unlawfully detained. The policy was therefore unlawful.
Baker LJ went further, accepting the Commission’s argument that detention after an age assessment conducted on the basis physical appearance and demeanour alone is inherently subjective so that, without safeguards, it would result in arbitrary detention contrary to Article 5 ECHR and Article 6 of the EU Charter; and that the policy was also contrary to EU law because, in cases falling within the scope of the Reception Directive, it failed to comply with the requirements of clarity, predictability, accessibility and protection against arbitrariness required by EU law, as interpreted by the CJEU in Policie ČR v Al Chodor (Case C-528/15)  4 WLR 125.
Simon LJ dissented. He would have held that – read as a whole – the policy contained sufficient safeguards and was lawful.
The judgment is here.
Martin Chamberlain QC appeared for the Equality and Human Rights Commission, intervening.