BF (Eritrea): Challenging the lawfulness of the Secretary of State’s policy guidance
In a judgment given on 30 July 2021 in R (on the application of BF (Eritrea)) v Secretary of State for the Home Department  UKSC 38, the Supreme Court assessed the lawfulness of policy guidance issued by the Secretary of State for the Home Department in relation to the age assessment of asylum seekers. This was with reference to the principles set out in a judgment given on the same day, in R (A) v Secretary of State for the Home Department  UKSC 37, which will be examined in a separate article.
Facts of BF (Eritrea)
The respondent in this case is a national of Eritrea who entered the UK on his own and claimed asylum as an unaccompanied child. Despite claiming he was 16 years old, he was assessed by Immigration Officers to be an adult and was treated as such at the outset. He was later found to be a minor, following a Merton assessment.
The Court’s judgment explains that there are significant differences in the legal regime applicable to an asylum seeker depending on whether they are a child aged less than 18 or an adult aged 18 or over. Schedule 2 to the Immigration Act 1971, as amended by the Immigration Act 2014 with effect from 28 July 2014, makes distinct provision in relation to the detention of unaccompanied children as compared with adults, as to the location where they may be held, the conditions to be satisfied if they are to be detained, and the period for which they may be detained. This enshrined in law a matter that was previously merely policy.
In that context, the Secretary of State has issued policy guidance for immigration officers on assessing the age of asylum seekers, when they claim asylum as a child and when there is doubt as to their age. In the absence of other evidence of age available, one criterion set out in the guidance (known as criterion C) is:
“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)
BF issued a judicial review claim, seeking the quashing of this part of the guidance on the grounds of unlawfulness. The relevant ground in the appeal to the Supreme Court was that, when the guidance is followed, it does not remove the risk that an asylum seeker may be assessed to be an adult, on account of looking older, when they are in fact a child, and be treated unlawfully as a result. The claim was dismissed in the Upper Tribunal, but it was allowed on appeal to the Court of Appeal. The Secretary of State appealed further to the Supreme Court.
The challenged policy guidance was set out in two Home Office documents: Chapter 55 of the Enforcement Instructions and Guidance (“the EIG”) and the asylum instruction entitled Assessing Age. Both included criterion C. The two documents were revised by the time of the appeal in the Court of Appeal and following the legislative change to the 1971 Act.
The Upper Tribunal’s decision in BF (Eritrea)
The submissions in the Upper Tribunal included that criterion C was unlawful because it permitted or encouraged unlawful conduct, in reliance on Gillick v West Norfolk and Wisbech Area Health Authority  AC 112, and because it was so “prone to error” as to amount to a systemic deficiency that made it inherently unfair, in reliance on n R (Detention Action) v First-tier Tribunal (Immigration and Asylum Chamber)  EWCA Civ 840. The second submission relied on the examination of empirical data on how the policy guidance operated in practice.
The Upper Tribunal rejected both submissions, concluding that there was nothing in the guidance that encouraged action contrary to statutory provisions and that there was not a sufficient evidential basis to find that there is a systematic risk of error.
The Court of Appeal’s decision in BF (Eritrea)
BF appealed to the Court of Appeal, which considered his challenge to criterion C in the context of the EIG and Assessing Age documents, both before and after the legislative changes to the 1971 Act. Both versions were found to be unlawful and the appeal was allowed.
Underhill LJ considered that the challenged parts of the policy guidance will be unlawful if the way that they are framed creates a real risk of a more than minimal number of children being detained. He emphasised that this would be the case if the terms of the policy themselves create such a risk. Conversely, individual mistakes or misjudgments in the application of the policy would not warrant a finding of unlawfulness, as those occur in any system which depends on the exercise of subjective judgment.
In light of evidence included in a document published by the Royal College of Paediatrics and Child Health, which stated the the margin of error in age determination can sometimes be as much as five years either side, Underhill LJ found that, by containing no recognition of the unreliability of age determination on the basis of appearance and demeanour and the required margin of error, the guidance gave rise to a real risk of children being unlawfully detained. As such, he found it was unlawful. He opined that the guidance should direct immigration officers to treat an asylum seeker as an adult if they believed him to be aged 23 or more, in the absence of objective evidence.
The issue in the appeal to the Supreme Court in BF (Eritrea)
The issue in the appeal was two-fold: whether the Court of Appeal erred in law in its approach in assessing the lawfulness of the policy guidance and whether it erred in concluding that the policy guidance is unlawful.
Counsel for BF relied on Gillick as well as R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) (Nos 1 and 2)  UKSC 51 in submitting that the policy is unlawful, due to the risk of unlawful outcomes to which it gives rise. Reliance on authorities concerned with systemic unfairness and the relevant submissions were renounced. Counsel for the Secretary of State submitted that criterion C is not unlawful in any version of the guidance, agreeing that the relevant test is derived from Gillick. Submissions on the guidance’s incompatibility with Articles 3 and 5 of ECHR were made on behalf of the intervener.
The Supreme Court’s decision in BF (Eritrea)
In the A case, the Supreme Court held that the applicable test for assessing the lawfulness of ministerial policy guidance is that found in Gillick. It was held that the test of systemic unfairness in the line of cases streaming from R (Refugee Legal Centre) v Secretary of State for the Home Department  EWCA Civ 1481 should be read in line with Gillick and not taken as a wider, freestanding principle. The test is whether the policy in question authorises or approves unlawful conduct by those to whom it is directed. This test calls for a comparison of two normative statements, construed objectively: the requirements of the relevant law on one hand, and what the policy guidance directs that a person should do. Only if the policy directs to act in a way that contradicts the law is it unlawful.
Counsel for BF argued that criterion C encourages unlawful conduct because it does not sufficiently remove the risk that immigration officers might make a mistake when assessing the age of an asylum seeker.
The Supreme Court found that this submission did not reflect the narrow test in Gillick. Rather than comparing whether the wording of the policy contradicts the underlying legal position, it is concerned with what might in fact happen in the absence of further information. In that sense, the Court found that this would impose a wider obligation on the person promulgating the guidance than discussed in Gillick: the test is whether the policy contradicts the relevant law, not whether it removes the risk of possible misapplication of that law. The remedy against such misapplication is to have access to the courts on an ad hoc basis. As such, the test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations.
In paragraph 61 of BF, the Court held that criterion C does not direct immigration officers to act in a way which is in conflict with their legal duty. Conversely, it directs them to treat those migrants they believe to be children as children and those they believe to be adults as adults, in recognition of their statutory (post-2014) duties.
Whilst it was considered to be possible that certain allowances and safeguards built in the guidance were required by section 55(1)(a) of the 2009 Act, it was accepted by Counsel for BF that the duty to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom did not impose any further obligation in promulgating the policy. The Court further held that there was no obligation under the common law for there to be any policy in place at all to supplement the statutory provisions. Whilst the provisions required an evaluative judgment regarding a person’s age, they did not confer any discretion and as such, did not require guidance explaining how that might be exercised. In that respect, the Court distinguished Lumba v Secretary of State for the Home Department  UKSC 12.
The Court further held that UNISON did not assist BF, as it was concerned with the lawfulness of policy or delegated legislation which creates an unreasonable or unacceptable impediment to being able to have access to a court or tribunal for the determination of legal rights and obligations. Insofar as this constitutional right was affected by the challenged policy or delegated legislation, the test in UNISON continues to apply (see paragraphs 82-83 in the A case). However, nothing in criterion C creates such an impediment.
The test of compatibility of domestic legislation with one of the Convention rights as set out in the In re Northern Ireland Human Rights Commission’s Application for Judicial Review  UKSC 27 was also found to be similar to that in Gillick, as it involves comparison of two normative statements. Finally, the Court held that R (Munjaz) v Mersey Care NHS Trust  UKHL 58 and Storck v Germany (2006) 43 EHRR 6 did not apply as, in the case of the former, it is concerned with a distinct obligation pursuant to Article 3 ECHR that is not engaged in the context of BF and, in the case of the latter, Article 5(1)(f) permits lawful immigration detention that is not arbitrary.
In view of the above, the Court held that the Secretary of State’s policy, in both relevant versions, was lawful and allowed the Secretary of State’s appeal.
With BF and A, the Supreme Court clarified the principles of systemic unfairness that were developed in the Refugee Legal Centre line of cases and brought them in line with the Gillick test for assessing the lawfulness of policy guidance. Importantly, the focus is on whether the policy can be operated in a lawful way at the outset, or whether it misdirects officials as to their legal obligations. This is a prospective question that involves the comparison of two normative statements, the relevant legal provisions and the contents of the policy. Statistical analysis of how the policy has been applied in practice is not relevant. A failure to explain the legal position in the policy on account of an omission, rather than of a wrong positive statement, can be relevant but only where there is a duty to provide accurate advice about the law or where the policy purports to provide a full account of the legal position.
These developments make it clear that the scope of challenging the lawfulness of the Secretary of State’s policy is considerably narrow. The need for certainty as to the relevant principles, for an incremental approach to existing judicial review principles and for the avoidance of unwarranted intrusions by the judiciary into the executive’s functions were cited as reasons. This is not particularly surprising given the executive’s recent statements (see our previous article on this matter) and the draft legislation limiting the scope of judicial review.
Nonetheless, the Court has emphasised that, notwithstanding whether a policy is unlawful itself, where a legal duty has been misunderstood or breached by those subject to it, whether by application of a policy or for other reasons, the individual is entitled to redress and can have access to the courts to compel the person to act in accordance with their duty. It is therefore important for anyone affected to seek and receive prompt and comprehensive legal advice in the context of their particular circumstances, with a view to establishing whether recourse to the justice system would be appropriate.
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