In recent years, asylum-seekers and refugees have faced an onslaught of legislative measures designed to prevent immigration to the UK. In 2022, the UK received 74,751 asylum applications,1Immigration system statistics, year ending December 2022 – summary of latest statistics, Home Office, 23 February 2023. of which 5,242 were from unaccompanied children,2Disbelieved and denied: children seeking asylum wrongly treated as adults by the Home Office, Helen Bamber Foundation, April 2023, page 3. many of whom had fled war zones and life-threatening conditions. Of these, 2,999 were age-disputed and assigned an adult date of birth by the Home Office upon arrival.3Ibid. Sixty-two per cent of those whose age disputes were resolved were eventually found to be children.4Ibid.

As part of the Home Office’s commitment to no longer accommodate asylum-seekers in hotels,5‘Home Office to exit first 50 asylum hotels by the end of January’, Home Office news story, 24 October 2023. alternative accommodation has been commissioned, such as the Wethersfield Army Barracks in Essex. Humans for Rights Network, a grassroots human rights organisation, reported that 11 age-disputed children were at Wethersfield,6Ghettoised and traumatised: the experiences of men held in quasi-detention in Wethersfield , Helen Bamber Foundation/Humans for Rights Network, December 2023, page 3. and this number rises weekly. Akin to an ‘open-prison camp’, surrounded by barbed wire and constant surveillance,7Ibid. the site is extremely unsuitable for housing vulnerable asylum-seekers.8Ibid, pages 3–5. Unsuitable accommodation places children at risk of sexual violence9Emine Sinmaz and Jessica Elgot, ‘Teenage boy allegedly raped at hotel housing refugees in London’, Guardian, 3 November 2022. and trafficking,10Diane Taylor, ‘UN experts warn UK government over trafficking risk faced by asylum seeker children’, Guardian, 11 April 2023. and it is incumbent on local authorities (LAs) to safeguard any putative children in situations like these.

Under Children Act (CA) 1989 s20, LAs must provide accommodation for children in need within their area if no one has parental responsibility for them. It is well established that children who lack accommodation or are destitute are children in need for the purposes of CA 1989 s1711R v Barnet LBC ex p G and other appeals [2003] UKHL 57 at para 99; see December 2003 Legal Action 16, April 2004 Legal Action 32 and May 2004 Legal Action 11. and it was recently held that many unaccompanied children are likely to be children in need, even if accommodated.12R (ECPAT UK) v Kent CC and Secretary of State for the Home Department [2023] EWHC 1953(Admin) at para 26; see October 2023 Legal Action 28, November 2023 Legal Action 27 and December 2023/January 2024 Legal Action 30. Guidance from the Association of Directors of Children’s Services (ADCS)13Age assessment guidance, ADCS, October 2015, pages 10–11. further explains that outside exceptional circumstances, age-disputed children must be looked after under s20 while the age assessment process is underway. The 2023 Working together to safeguard children inter-agency guidance14Working together to safeguard children 2023, Department for Education, December 2023, para 153, page 58. further states that a LA’s children’s social care department must decide on next steps within one working day of receiving a referral.

NBA 2022 Part 4 altered the standard process of dealing with age disputes. An age-disputed child should still be referred to social services in the LA where they reside, but once a LA accepts a child’s age, it must inform the Home Office under NBA 2022 s50(3)(b)–(c). Section 50(4) then gives the Home Office the power to request further evidence as is ‘reasonably required’ to consider the LA’s decision.

Through my work at PLP assisting age-disputed clients, I have seen how the NBA 2022 has led to increased resistance from the Home Office in accepting a child’s age when the LA has given the child the benefit of the doubt and accepted their claimed age, rather than conducting a Merton-compliant age assessment.16R (B) v Merton LBC [2003] EWHC 1689 (Admin), the leading authority on what constitutes a ‘fair’ age assessment. The standard of proof in age assessments is the balance of probabilities. As the dispute is between the LA and the Home Office, judicial review is not usually a remedy, but practitioners can still support clients by collecting additional evidence and working collaboratively with the LA to persuade the Home Office to accept the LA’s decision.

Despite the changes brought in by the NBA 2022, significant weight should be given to the views of social workers who can rely on relevant guidance to support their decisions. According to the ADCS guidance,17Age assessment guidance, ibid, page 6. in situations where the LA considers that a detailed age assessment is not necessary, social workers could complete a pro forma for the Home Office, which should include their findings from working with the child as part of their statutory assessments. Notably, Merton is not prescriptive so long as any assessments are conducted fairly,18R (MA and HT) v Secretary of State for the Home Department [2022] EWCA Civ 1663. which could enable the LA to explain that the assessments already completed are cumulatively Merton-compliant.

Undoubtedly, the creation of the National Age Assessment Board and the scientific testing provisions in the Illegal Migration Act 2023 will bring even more challenges in the year ahead for practitioners supporting age-disputed clients. The need for a flexible, collaborative and persistent approach is more important than ever before.