The majority of unaccompanied children who enter the UK to seek asylum do not bring with them evidence of their age. Because of this, the Home Office has a duty to carry out an initial assessment of their age to establish whether they are, or could be, children.
The Home Office does not publish statistics regarding children who are wrongly assessed as adults on arrival nor regarding the number of initial age assessments which are later overturned. However, the latest data collected by Helen Bamber Foundation shows that in 2022, out of 1,386 children who were initially assessed as adults by the Home Office, at least 867 (63%) ended up being assessed as children by local authorities. It is also worth looking at this report published by the Refugee Council showing that 94% of the young people they supported who were initially assessed as adults by the Home Office were later found to be children.
Why is this important?
The initial age assessment stage in the asylum process is crucial. If a young person is found to be an adult on arrival, they will be assigned a date of birth making them over 18 and they will be dispersed in adult accommodation and treated as adults from that point onwards. The consequences of this can be catastrophic for children who are wrongly assessed as adults by the Home Office.
If a young person is found to be an adult, they will not be referred to a local authority but they will instead be accommodated in adult accommodation (mostly hotel accommodation) and be left with very little support. This puts children at serious risk of, for instance, re-trafficking and exploitation. There are little to no safeguarding procedures in place in adult accommodation.
The serious concerns regarding hotel accommodation were recently highlighted in the media as the Home Office admitted that around 200 unaccompanied asylum seeking children have gone missing from hotel accommodation. Worryingly, these are children that were accepted by the Home Office as children on arrival and were accommodated in hotels dedicated to unaccompanied asylum seeking children.
The situation is even more concerning for children who are wrongly placed in adult accommodation as they are much higher risk of re-trafficking. At JustRight Scotland, we routinely assist children who, after being wrongly assessed as adults and being accommodated in adult Home Office accommodation in England, are re-trafficked to Scotland. This could be prevented if children were referred to local authorities by the Home Office and accommodated in adequate, safe accommodation as soon as they arrive.
A second major concern is that children who are wrongly assessed as adult will be treated as such by the Home Office and are liable to be detained and removed to a safe third country such as Rwanda (it is worth taking a look at this briefing on this point).
This is also particularly concerning when looking at the changes that are likely to come into force under the new Illegal Migration Bill. Under the new Bill, whilst the Secretary of State will have a duty to remove adults who entered the UK via irregular routes, no such duty will be in place for unaccompanied children (although the duty will kick in as soon as they turn 18).
Essentially, both under current provisions and the new Bill, the difference between a child being assessed as a child or being wrongly assessed as an adult can be the difference between them being able to remain in the UK or face detention and removal.
Lastly, there are a number of safeguards in place for unaccompanied asylum seeking children going through the asylum system. Under the new streamlined policy, the Home Office should avoid lengthy substantive interview, where possible. Children also have the right to have an appropriate adult and legal representative present during interviews and the Home Office staff dealing with these cases are all trained in handling children’s cases. When determining children’s claims, decision makers also need to be mindful of the applicant’s age when assessing their credibility. This is reflected in the Home Office statistics. In 2022, 83% of initial asylum decisions resulted in a grant of protection for unaccompanied children, compared to 56% in applications made by adults. This shows that unaccompanied children accepted by the Home Office as children are clearly more likely to obtain protection in the UK.
Home Office initial age assessment process
As soon as a separated child enters the UK, the Home Office will carry out an initial age assessment to establish whether they are, or could be, a child. This process is fairly arbitrary. Essentially, two Home Office members of staff will look at the child and decide whether, based on their appearance and demeanour, they think that they could be a child.
Under the Home Office guidance, there are very few safeguards in place at this stage. All that is needed is for two officers (one of whom needs to be a Chief Immigration Officer or Higher Executive Officer) to agree on an initial decision that the child presents as significantly over 18 for them to be able to assess them as an adult. Unhelpfully, no social worker needs to be present during this assessment.
This is particularly concerning when thinking about the point in time in which these assessments are carried out. In most cases, young people will go through these initial assessments as soon as they enter the country. This will follow weeks, if not months, of being malnourished, sleep deprived and very often having being subject to physical and psychological abuse during their journey. Whilst the Home Office guidance acknowledges that there is a wide margin of error at this stage, in practice, it is hard to see how all of these factors can be taken into account when the assessment itself is solely based on the young person’s presentation.
If a young person is found to be an adult following an initial assessment by the Home Office, they will be assigned a date of birth making them an adult. The only way for children who are wrongly assessed as adults to have their age reassessed is for them to be referred to a local authority after they are dispersed by, for instance, their legal representative or a supporting organisation. This essentially puts the onus on the young person and those assisting them to refer the case to a local authority.
If they are not referred to a local authority, they will be treated as an adult throughout the asylum process, facing possible detention and removal.
Duties of local authorities & full age assessments
Once a referral is received, the local authority will have a duty (under children legislation) to carry out their own enquiries to establish whether the young person is, or could be, a child. The duty to carry out such enquiries will apply even in cases where the Home Office made a negative initial age assessment decision. Where a local authority refuses to engage with a young person simply on the basis of a Home Office initial age assessment decision, there could be a potentially breach of their duties under section 20 of the Children Act 1989 (section 25 of the Children (Scotland) Act 1995 in Scotland).
If, following these enquiries, a local authority finds that the young person is, or could be, a child, they will be taken into care and accommodated. Once the young person is in care, the local authority can decide to simply accept their age. Where this happens, under the Home Office guidance, the local authority will need to inform the Home Office of their decision to accept the young person’s age and, if the Home Office is satisfied with the decision, they will then proceed to also treat them as an unaccompanied asylum seeking child.
If a local authority, after the young person has been taken into care, still has significant doubt regarding their age they can decide to conduct a full age assessment.
Full age assessments have been the subject of litigation for over twenty years now. However, the leading case is still R (B) v Merton  EWHC 1689 (Admin). Local authorities in England should also follow the non-statutory guidance published by the Association of Directors of Children’s Services when conducting full age assessments (with this guidance being the equivalent in Scotland). Again, once a full age assessment has been conducted, under Home Office guidance, the local authority will need to share the decision with the Home Office and normally the outcome will be accepted and implemented by them.
Until the Nationality and Borders Act 2022 came into force last year, age assessments were solely the responsibility of local authorities. Under the new legislation, the Home Office has now introduced the National Age Assessment Board, which became operational on 31 March 2023.
The National Age Assessment Board consists of social workers employed directly by the Home Office to carry out full age assessments. Concerns have been raised regarding the objectivity of the Board and potential conflict of interest with the Home Office, including by the British Association of Social Workers. In the Board’s guidance, it appears that it will mostly carry out full age assessment where a local authority makes a referral to them (for instance, due to limited capacity or expertise). Whilst the guidance states that the Home Office can also direct the Board to carry out assessments, it seems like this will only apply in rare cases where the Home Office is disputing the findings of a local authority and all attempts to resolve concerns have been unsuccessful.
In summary, even under the new changes and following the introduction of the National Age Assessment Board, local authorities will still very much be responsible for carrying out full age assessments and establish the age of unaccompanied asylum seeking children in their care.
Age assessments are complex and this is an area of work that immigration practitioners can be understandably anxious about. Nevertheless, it is important for legal representatives to support young people with these matters. Whether a young person is accepted as a chid by the Home Office or not could represent the difference between them being detained and removed from the UK or being able to remain, being looked after and supported by their local authority. A young person’s recorded date of birth will also determine what financial support, accommodation, and education they can have access to in the UK.
As such, it is crucial that, when assisting an age-disputed young person, legal representatives ensure that the case is referred to the local authority and that the young person is adequately supported and advised throughout the age assessment process, which, in complex cases, can last months or even years.