Explaining the treatment of child asylum seekers in the UK

A child is a vulnerable witness-consideration of  anonymity orders

In this article, Gulbenkian Andonian solicitors explain how the evidence of (unaccompanied) minors under the age of 18 should be considered by decision makers, (the Home Office (SSHD), the courts and tribunals for example). Such an individual is a vulnerable witness, and following the Court of Appeal decision in AM(Afghanistan) v SS HD [2017} EW CA C IV 1123, there is need to apply certain well-established guidance, for example the joint Presidential guidance of the senior President of the tribunal’s, note number 2 of 2010 entitled child, vulnerable adult and sensitive appellant guidance.

At the commencement of any legal proceedings, consideration should always be given to anonymize the child’s name, perhaps referring to him/ her by initials, in the child’s best interests for their protection. An anonymity order can therefore be made at the commencement of any proceedings on the basis that   publication of the details about the child may cause or increase risk to them and also that the child is a vulnerable young person and their claim relates to matters which arose when they were minor. Children should also be accompanied by responsible adults in any proceedings they are involved in, and these could be foster parents, someone from the social services or a friend or relative.

Assessing the credibility of the evidence of a child

When considering the credibility of a child, decision-makers must consider the child’s age at the date of the hearing, not on the basis that he/ she is nearly an adult, and the guidance from the United Nations High Commissioner for Refugees(UNHCR), on International Protection Child asylum claims under articles 1(A) 2 and1 (f) of the 1951 Convention and/or 1967 protocol relating to states of refugees notes at paragraph “72. Children cannot be expected to provide adult -like accounts of their experiences. They may have difficulty articulating their fear for a range of reasons, including trauma, parental instructions, lack of education, fear of state authorities or persons in positions of power, use of ready-made testimony by smugglers, or fear of reprisals. There may be too young or immature to be able to evaluate what information is important or to interpret what they have witnessed or experienced in a manner that is easily understandable to an adult. Some children may omit or distort vital information unable to differentiate the imagined from reality. They also may experience difficulty relating to abstract notions, such as time or distance. Thus, what might constitute a lie in the case of an adult might not necessarily be a lie in the case of a child. It is therefore, essential that examiners have the necessary training and skills to be able to evaluate accurately the reliability and significance of the child’s account. This may require involving experts in interviewing children outside a formal setting or observing children and communicating with them in an environment where they feel safe, for example in a reception centre.

73. Although the burden of proof is usually shared between the examiner and the applicant in adult claims, it may be necessary for an examiner to assume a greater burden of proof in children’s claims, especially if the child concerned is unaccompanied. If the facts of the case cannot be ascertained and/ or the child is incapable of fully articulating his/ her claim, the examiner needs to make a decision on the basis of all known circumstances, which may call for a liberal application of the benefit of the doubt. Similarly, the child should be given the benefit of the doubt should there be some concern regarding the credibility of part of their claim.

Furthermore, according to the guidance in the joint presidential guidance note number 2 of 2010 on child, vulnerable adult and sensitive appellant guidance, there is a warning in paragraph 10,  that children often do not provide as much detail as adults in recalling experiences and may often manifest their fear differently from adults.

There are many instances where the Home Office in refusing an asylum Claim from children has failed to recognise the vulnerabilities children have when articulating their asylum claim, and as a result finds their evidence incredible. This is the wrong approach. It fails to have regard to the need for a child- sensitive application of the lower standard of proof as per KS (benefit of the doubt), {2014} UK UTD 552(IAC), in which the Upper Tribunal accepted in paragraph 99 that a child sensitive application of the lower standard of proof (for example one in 10 chance), need to be given to persons if they are recounting relevant events that took place at the time when they were minors.

Furthermore, credibility must be considered in the round and against all the evidence and background country information. The lower standard of proof in asylum claims applies. In a matter of karanakaran v SSHD {2000} INNAR 112, the Court of Appeal held that the low standard proof affords a positive role for uncertainty; overall a global assessment of credibility is required.

Age assessment

In many instances where children flee their country of nationality or residence for protection, they carry with them little or no documentation, and in some instances depending from where they come from, when children are born, parents do not bother to obtain birth certificates, either because they live in villages too far from the nearest town for registration or because they have never done so and see no reason for it. So, there may be several factors as a result of which there is no birth certificate. In any event, when a child says for example he/ she is  say 13 years of age, and is an unaccompanied minor seeking asylum in the UK, some would have their age disputed by the authorities and they would have to be subject to an age assessment by relevant local authorities.

When an unaccompanied minor child enters the UK seeking asylum therefore and there is doubt as to the child’s age, normally referrals to local authorities would be made by the Home Office before any decision can be taken on the asylum claim.

As referred above, almost all of these children have no formal identification having fled war-torn countries. They have no way of proving their age without documentary evidence. I should also say that In some cultures, families do not even celebrate birthdays and do not consider birthdays as an important milestone, as we do here in the UK for example.

More often than not, the social workers fail to have any consideration of the cultural background of the individual child. There is no consideration of the fact that the ordeals to which these children are subjected would age them more than a child of their age, more than a child who has had a better lifestyle and upbringing.

Therefore, in order for an age assessment to be valid, it must comply with the findings of R (B) v Merton LBC [2003] All ER 280 (or what is commonly referred to as the age assessment being Merton compliant), where the court provides guidance as to the conduct of an age assessment. With the influx of refugees in recent years, lawyers and other legal advisers come across more frequently people whose age are disputed and are subject to an age assessment.

Unfortunately ( my italics for emphasis),  lawyers and other professionals, also come more and more across non-Merton compliant age assessment  from local authorities., Which then leaves the young people concerned in a state of uncertainty, sometimes shipped between different local authorities, and even between local authorities and Home Office, with each trying to dissolve themselves of responsibility for the care of these young people.

There are instances when an individual child is age assessed older than their actual age, and they are then enrolled in the wrong level of education, registered with a GP older than they actually are and so on. This puts the young person concerned at risk of being prescribed the wrong medication for their age. They do not receive the correct level of education they require and will not get the support they desperately need, especially taking into account the harrowing experiences some have faced en- route to the UK. In some instances, this also means that some children are unlawfully detained under the immigration powers and detained with the general population within the immigration detention centres thus exposing them to further risk. Therefore, the local social services authority will carry out an age assessment in accordance with the Merton guidelines. The guidelines were devised by Judge Stanley Burton in the above case. They state that in a case where age is not clear, and no reliable documentary evidence exists, the credibility of the applicant, their physical appearance and behaviour must be assessed. This assessment must also include general background of the applicant, including ethnic and cultural considerations, family circumstances, education and history over the past few years.

I understand of course that the Merton standard has drawn various criticisms. First of all, different capacity of local authorities to make such assessments inevitably results in a variation of the quality of age assessment. Given its largely subjective nature, the process depends entirely on the availability of the local authority and individual social worker charged with the task. Second the Merton standard encourages disproportionate weight being given by social workers to the perceived credibility of the individual, a fact that also has serious consequences in asylum claims.

However, the Merton compliant standard is probably the fairest standard that exists, and as I have indicated in this article, where there is doubt in my view and where appropriate, the benefit of doubt should be given to the child asylum seeker. A brief survey of the current weaknesses in the treatment of  unaccompanied child asylum seekers in the UK reveals that an age determination process that respects the overriding principle in  the best interests of the child is the only legitimate means of assessment. While from a legal perspective this would ensure governments comply with their obligations under international law, it would also facilitate more accurate and fair results and avoid potential pitfalls of the current system.