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Public Law Solicitors
Disputed Minors in Immigration Detention (19 March 2014)
Date: 19/03/2014
We are seeing more disputed minors in detention.
Whether this is because they have provided false details upon apprehension, or because the documents they have provided have not been accepted as reliable by the Home Office, now known as UK Visas and Immigration (UKVI), the result is the same: a person who claims to be under the age of 18 is being held in an Immigration Removal Centre (IRC), facilities which we say are not suitable for such persons, and in any event, only in limited circumstances should a person claiming to be under 18 years of age be detained.
Detention of a person who claims to be under the age of 18 brings many issues. They often share rooms with persons older than them, thereby putting them in a vulnerable position, after all, the doors to the room are locked for periods of time.
There is also the increased risk that due to their vulnerability which comes from being a minor, they have been exploited in other ways, such as being victims of trafficking, or having trusted an older member of their society, which results in a detrimental impact on their case: e.g. not disclosing previous fingerprinting in another country, or previously stating they are an adult.
In order for UKVI’s to detain a person, there must be “reasonable grounds for suspecting that a person is someone in respect of whom directions may be given…that person may be detained under the authority of an immigration officer pending certain matters, including removal.”*
This power is then exercised in accordance with their policy*, which in summary says that unaccompanied children must not be detained other than in the most exceptional circumstances e.g to establish the identity of an unaccompanied child and pending suitable alternative arrangements being made for their care and safety, and they should only be detained for the shortest possible time.
For UKVI purposes, a person will be treated as under 18 unless one or more of the following applies
:
A. There is credible and clear documentary evidence that they are 18 or over.
B. A Merton complaint age assessment by a local authority is available stating that they are 18 years of age or over.
C. 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.
D. The individual:
- prior to detention, gave a date of birth that would make then an adult and/ or stated that they were an adult; and
- only claimed to be a child after a decision had been taken on their asylum claim; and
- only claimed to be a child after they had been detained; and
- has not provided credible and clear documentary evidence proving their claimed age; and
- does not have a Merton compliant age assessment stating they are a child; and
- does not have an unchallenged court finding indicating that they are a child; and
- physical appearance/ demeanour very strongly suggests that they are 18 years of age or over.
(all seven criteria with category D must apply).
If none of the above categories apply (A-D), the individual must not be detained or must be released from detention into the care of a local authority and treated as a child.
Arguably therefore, only in very limited circumstances as set out above, should a person claiming to be under the age of 18 be detained.
Where a young person is claiming to be child, the UKVI policy states that the young person should not remain in detention pending an age assessment, but rather they should be released into the care of the local authority, and the age assessment (which should be Merton Compliant) conducted in the Community.*
It is obviously beneficial to the young person for the age assessment to be conducted outside of detention, as the surroundings will be more relaxed and conducive to obtaining detailed and quality evidence from the young person making it easier for them to put forward their case.
It is important that any age assessment is “Merton compliant”. There is a duty on the assessor to give reasons and the decision should be based on firm grounds. It is also paramount that the young person is given a fair and proper opportunity to respond to adverse points which may weigh against them.
What should you do if a young person claiming to be under 18 years of age is held in detention?
It is important to advise them to contact a solicitor as quickly as possible, for instance through an IRC surgery which are held multiple times a week. This will enable the legal representative to start to take action quickly and therefore potentially reduce the amount of time spent in detention, particularly in light of the UKVI policy on not detaining disputed minors pending an age assessment referred to above.
The legal representative can also consider requesting that the young person is moved to appropriate accommodation (even within the detention centre) in the interim period. You may also wish to raise your concerns with the IRC and UKVI yourself alongside advising the young person to seek the assistance of a Solicitor, particularly if you have immediate safeguarding concerns.
It is also worth bearing in mind that some detainees do not really know how old they are, so if you have concerns that a person appears young in their demeanour and physical appearance, suggest they speak to a legal representative who can consider whether it is appropriate to request that the local authority undertake an age assessment of the young person so as to ensure that any necessary safeguards are met.
* Paragraph 16(2) of Schedule 2 of the Immigration Act 1971
It is obviously beneficial to the young person for the age assessment to be conducted outside of detention, as the surroundings will be more relaxed and conducive to obtaining detailed and quality evidence from the young person making it easier for them to put forward their case.
It is important that any age assessment is “Merton compliant”. There is a duty on the assessor to give reasons and the decision should be based on firm grounds. It is also paramount that the young person is given a fair and proper opportunity to respond to adverse points which may weigh against them.
What should you do if a young person claiming to be under 18 years of age is held in detention?
It is important to advise them to contact a solicitor as quickly as possible, for instance through an IRC surgery which are held multiple times a week. This will enable the legal representative to start to take action quickly and therefore potentially reduce the amount of time spent in detention, particularly in light of the UKVI policy on not detaining disputed minors pending an age assessment referred to above.
The legal representative can also consider requesting that the young person is moved to appropriate accommodation (even within the detention centre) in the interim period. You may also wish to raise your concerns with the IRC and UKVI yourself alongside advising the young person to seek the assistance of a Solicitor, particularly if you have immediate safeguarding concerns.
It is also worth bearing in mind that some detainees do not really know how old they are, so if you have concerns that a person appears young in their demeanour and physical appearance, suggest they speak to a legal representative who can consider whether it is appropriate to request that the local authority undertake an age assessment of the young person so as to ensure that any necessary safeguards are met.
* Paragraph 16(2) of Schedule 2 of the Immigration Act 1971
Enforcement Instructions and Guidance (EIG) chapter 55.9.3.
EIG chapter 55.9.3.1
* Detention Services Order 14/2012: Care and Management of Age Dispute Cases in the Detention Estate
About the Author
Lucy Philps-Tate joined Duncan Lewis as a Consultant in September 2011, and undertakes Public Law, Immigration and Criminal work. Prior to this she was employed as an Immigration caseworker and latterly as a Solicitor in the Immigration and Public Law Departments between 2008 and 2011.
Lucy is qualified as a Level 2 Senior Caseworker under the Immigration and Asylum Accreditation Scheme and undertakes all forms of controlled work, including advocacy in asylum, immigration and deportation appeals. She has a particular interest in assisting unaccompanied minors who have recently entered the UK.
Lucy has gained a broad range of experience whilst in the Public Law and Immigration Departments and amongst other Judicial Reviews has successfully dealt with urgent challenges to removal; challenges to refusals of Article 8 applications where no right of appeal has been granted; and challenges to the failure of the UK government to follow their own declared policies and to provide documents to successful applicants within a reasonable period of time.
Lucy has experience of representing a wide variety of clients, including vulnerable clients, minors, women who have been subjected to FGM (Female Genital Mutilation), the mentally ill, and clients who have been trafficked. She also successfully obtained on appeal, Refugee status for an Afghan national who had been employed by the British Armed Forces as an interpreter who was in the Detained Fast Track. He was also awarded damages for unlawful detention during the detained fast track process.
Lucy is Police Station Accredited, and can be instructed to advise and represent clients who have been arrested by police, and if required can continue to represent them at the Magistrates Court.
About the Author
Lucy Philps-Tate joined Duncan Lewis as a Consultant in September 2011, and undertakes Public Law, Immigration and Criminal work. Prior to this she was employed as an Immigration caseworker and latterly as a Solicitor in the Immigration and Public Law Departments between 2008 and 2011.
Lucy is qualified as a Level 2 Senior Caseworker under the Immigration and Asylum Accreditation Scheme and undertakes all forms of controlled work, including advocacy in asylum, immigration and deportation appeals. She has a particular interest in assisting unaccompanied minors who have recently entered the UK.
Lucy has gained a broad range of experience whilst in the Public Law and Immigration Departments and amongst other Judicial Reviews has successfully dealt with urgent challenges to removal; challenges to refusals of Article 8 applications where no right of appeal has been granted; and challenges to the failure of the UK government to follow their own declared policies and to provide documents to successful applicants within a reasonable period of time.
Lucy has experience of representing a wide variety of clients, including vulnerable clients, minors, women who have been subjected to FGM (Female Genital Mutilation), the mentally ill, and clients who have been trafficked. She also successfully obtained on appeal, Refugee status for an Afghan national who had been employed by the British Armed Forces as an interpreter who was in the Detained Fast Track. He was also awarded damages for unlawful detention during the detained fast track process.
Lucy is Police Station Accredited, and can be instructed to advise and represent clients who have been arrested by police, and if required can continue to represent them at the Magistrates Court.