BF (Eritrea), R (on the application of) v Secretary of State for the Home Department [2021] UKSC 38

BF, an Eritrean asylum seeker claiming to be 16, was assessed by immigration officers as an adult based on appearance and detained. He challenged the Secretary of State's policy guidance (criterion C) for assessing age, arguing it risked unlawful detention of children. The Supreme Court allowed the Secretary of State's appeal, holding the policy lawful.

Facts

BF, a national of Eritrea, entered the UK illegally in March 2014 and claimed asylum as an unaccompanied child aged 16. He had no passport or documentary evidence of his age. Immigration officers assessed his age based on physical appearance and demeanour under the Secretary of State’s policy guidance known as ‘criterion C’, concluding he appeared to be in his mid-20s. He was detained pending removal to Italy under the Dublin III Regulation. Subsequent Merton assessments by local authorities produced conflicting results, with a third independent assessment eventually determining he was indeed a child at the time of arrival.

Issues

The central legal issue was whether criterion C in the Secretary of State’s policy guidance was unlawful because it created a real risk that children might be wrongly assessed as adults and thereby unlawfully detained. The specific questions were:

Test for Lawfulness

Whether the Court of Appeal erred by assessing lawfulness according to whether the policy created ‘a real risk of a more than minimal number of children being detained’ or ‘a risk which could be avoided if the terms of the policy were better formulated’.

Lawfulness of Criterion C

Whether criterion C, requiring physical appearance and demeanour to ‘very strongly suggest’ the person is ‘significantly over 18’, was itself unlawful.

Judgment

The Supreme Court allowed the Secretary of State’s appeal, holding that criterion C was lawful at all material times.

The Gillick Obligation

The Court held that the principal test for assessing the lawfulness of policy guidance derives from Gillick v West Norfolk and Wisbech Area Health Authority. This involves comparing two normative statements to see if the policy direction contradicts the underlying legal position.

“The Gillick obligation is not to give policy direction to recipients to do something which is contrary to their legal duty.”

The Court rejected the respondent’s argument that criterion C ‘permits or encourages unlawful conduct’ merely because it does not eliminate the risk of mistakes:

“Whenever a legal duty is imposed, there is always the possibility that it might be misunderstood or breached by the person subject to it. That is inherent in the nature of law, and the remedy is to have access to the courts to compel that person to act in accordance with their duty.”

No Obligation to Eliminate Risk of Error

The Court emphasised that there is no general common law duty to promulgate policy that removes the risk of misapplication of law:

“Save in specific contexts… there is no obligation for a Minister or anyone else to issue policy guidance in an attempt to eliminate uncertainty in relation to the application of a stipulated legal rule.”

UNISON Inapplicable

The Court held that R (UNISON) v Lord Chancellor did not assist the respondent, as nothing in the Secretary of State’s policy created any impediment to accessing courts for determination of rights.

Section 55 Compliance

The policy was formulated ‘having regard to the need to safeguard and promote the welfare of children’ as required by section 55 of the Borders, Citizenship and Immigration Act 2009. The guidance included safeguards such as the ‘benefit of the doubt’ standard and the requirement for two officers to separately reach the same conclusion.

Implications

This decision establishes important principles regarding judicial review of executive policy guidance:

• The Gillick test requires comparing normative statements, not assessing factual predictions of possible outcomes
• Ministers are not obliged to issue policy eliminating all risk of error in applying clear statutory rules
• The separation of powers means courts should not require Ministers to effectively rewrite Parliamentary rules through policy
• Where statute draws clear distinctions (such as between adults and children), policy guidance directing proper application of that distinction is lawful even if mistakes may occur

The judgment reinforces that the availability of judicial remedies for wrongful detention provides appropriate safeguards, rather than requiring prophylactic policy measures to prevent all possible errors.

Verdict: Appeal allowed. The Secretary of State’s policy guidance, including criterion C for assessing the age of asylum seekers, was lawful at all material times.

Source: BF (Eritrea), R (on the application of) v Secretary of State for the Home Department [2021] UKSC 38