Home Office concedes age dispute challenge and accepts child refugee wrongly assessed as adult in Criminal Court

The Home Office has conceded a claim for judicial review, and accepted the child refugee known as “IA” is a child aged 17 years old and was 16 years old when he arrived in the UK, as he has always claimed, despite treating him as a 23-year-old adult for over four months. This follows a substantive hearing to determine his true age in the criminal courts where IA was found to be credible, and where the Judge placed “minimal” weight on the Home Office’s National Age Assessments Boards (“NAAB”) assessment of age.

IA is a Eritrean national from Sudan. He arrived in the UK in May 2024, crossing the Channel in a small boat, and claimed to be a child aged 16 years old. Despite initially being assessed to be a child, Home Office officials and a social worker, after a cursory assessment of his physical appearance and demeanour, decided he was significantly over 18 and an adult.

He was detained, referred for prosecution, and charged with one count of illegal entry contrary to Section 24 of the Immigration Act 1971, and appeared before Margate Magistrates Court. Notably, he was charged prior to any Merton-compliant assessment of his age being conducted, despite it being the policy of the Home Office and Crown Prosecution Service (CPS) not to charge children with this offence.

IA maintained that he was a child, and he was remanded into the care of Kent County Council by the Magistrates who transferred him to specialist children’s accommodation. He was then subject to an assessment of age by the Home Office NAAB. During the assessment, staff at his children’s residential placement, informed the Home Office that they considered him to be a child and that he was suitable for Children’s Services.

Despite staff sharing these strong views with the Home Office, IA was assessed by the NAAB to be an adult.

As a result of this wrong assessment of age, IA was immediately removed from his children’s accommodation and placed with adults in unsuitable hotel accommodation, where his mental and physical health declined. He lost weight, suffered from anxiety and distress, and struggled to sleep.

The matter then came again before the Youth Court for consideration of IA’s criminal prosecution. A District Judge treated the question of IA’s age as a preliminary issue. The Court did not consider itself bound by the NAAB assessment of age, but proceeded to determine age for itself under s99 of the Children and Young Persons Act 1933.

The Court took into account evidence, including expert evidence from an Independent Social Worker, a Country Report on Sudan, a witness statement from the Manager of the children’s facility in Kent, and detailed documentation from the judicial review proceedings, as well as authorities from the Court of Appeal, Administrative Court, and Upper Tribunal as to the correct approach to the assessment of age in both the civil and criminal contexts.

The criminal court heard evidence from IA directly and also heard evidence from the Home Office’s lead assessing social worker, who was subject to cross-examination.

The Judge concluded, following the trial, that IA was telling the truth about his age and was a child aged 16 when he entered the UK, and was now aged 17. The Judge found that IA’s evidence was “credible, cogent and consistent”.

By contrast, the Judge found that he was unable to place any more than “minimal” weight on the assessment of age conducted by the NAAB. The Judge’s findings, having heard from the lead assessing social worker, included:

• The assessment had taken an unfair approach to credibility and had placed too much weight on the views of an allocated social worker, who had met IA just twice, and gave no reasonable explanation for disregarding the evidence of the staff at IA’s placement who had known him for much longer, and in a range of “real-world” settings.
• The ‘minded to’ process was not conducted fairly or in accordance with the guidance – the social worker himself stated in cross-examination that he considered the ‘minded to’ process to be an “adversarial” process contrary to guidance.
• The assessment failed to recognise that the experience of IA is not adequately comparable to those of a western European child.
• The assessment failed to apply the principle of the benefit of the doubt and the lead assessor did not properly grasp the concept; and
• Overall, the assessment placed too much emphasis on searching for evidence that IA was an adult and did not place weight on supporting evidence.

Following the hearing, the CPS withdrew the charges against IA in line with their policy not to prosecute children for this offence. IA was therefore, wrongly, subject to prosecution for over seven months, despite being a child at all times and having the prospect of imprisonment hanging over him throughout.

This case raises serious questions as to why a decision to charge for illegal entry was taken prior to the resolution of the question of IA’s age, and on the basis of a known unreliable and cursory assessment. Had the question of his age been determined prior to the decision to charge, IA would never have been prosecuted.

Further, this case raises significant concerns about the quality of assessments of age conducted by the NAAB, and reflects the strong reservations expressed by the British Association of Social Workers (BASW) that the transfer of age assessment from Children’s Social Services to the Home Office could have “worrying implications for child welfare.”[1]

It is plain, from the Judge’s findings, that the assessment in this case – which was relied on for over four months – with serious consequences for IA – did not meet basic minimum standards for age assessments. It revealed fundamental failings, including an adversarial approach to the assessment of age, a failure to understand or apply the principle of the benefit of the doubt, and an unlawful approach to credibility, namely, rejecting the child’s account of his age and experience without a proper basis after a flawed investigation, the purpose of which was to undermine the child’s credibility applying ethnocentric and Eurocentric perspectives.

The concerns of the BASW, that working for the Home Office NAAB would risk compromising the professional independence and integrity of social workers[2], appears to have been well founded on the basis of this example, since the assessment in this case appears to have been infected by the Home Office’s institutional culture of disbelief and its priorities of penalising those arriving on small boats, rather than the welfare of the asylum seeker, even when they are, as in this case, more likely than not to be a child if lawfully and fairly assessed.

The Independent Chief Inspector of Borders and Immigration is conducting an inspection into the Home Office’s use of age assessment. IA’s legal team have made a submission to the Chief Inspectorate about this case.

[1] https://basw.co.uk/articles/basw-uk-statement-national-age-assessment-board

[2] https://basw.co.uk/articles/basw-uk-statement-national-age-assessment-board