On 7 February 2022 the Home Office updated Detention Services Order 02/2019 on Care and management of Post Detention Age claims. This policy sets out the approach to age dispute cases in immigration detention and applies to Home Office staff and its contractors.

The last version of the policy (dated August 2019) allowed the department to treat a person as an adult if their “physical appearance and demeanour” very strongly suggested that they were 25 years or over, and there was no credible evidence to the contrary.

The August 2019 policy had been introduced in response to the judgment in BF (Eritrea) v SSHD [2019] EWCA Civ 872, which held that treating a person as an adult if their appearance and demeanour suggested that they are significantly over 18 was unlawful. The Court of Appeal held that this created a real risk of more than a minimal number of children being detained. But this judgment was overturned by the Supreme Court (BF (Eritrea) v SSHD [2021] UKSC 38).

The wording of the policy has now reverted to that which was struck down by the Court of Appeal. It allows the department to treat a person as an adult where two members of staff (one of at least chief immigration officer or higher executive officer rank, or equivalent) separately assess the person as an adult “because their physical appearance and demeanour very strongly suggests they are significantly over 18 years of age and no other credible evidence exists to the contrary”.

This will apply to people arriving by boat who are processed in short-term holding facilities and are either transferred to immigration removal centres or asylum support accommodation. The High Court recently held that the fast track age assessments being conducted by Home Office social workers were unlawful. It seems likely that more people will be treated as adults based on physical appearance and demeanour — which will mean that they can be processed as adults without the need for social worker assessments.

However, if the department’s assessment is later shown to be wrong and the person has been detained as an adult, the child will have been falsely imprisoned and be able to bring a claim for damages. This is because the statutory provisions governing the detention of children treat this as an issue of precedent fact: see AA (Sudan) [2017] EWCA Civ 138.