Unaccompanied Asylum Seeking Children - Age Assessment Toolkit
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Unaccompanied Asylum Seeking Children: Age Assessment Toolkit Unaccompanied Asylum Seeking Children Age Assessment Toolkit 1 © Crown copyright 2021 WG42831 Digital ISBN 978-1-80195-489-1
Unaccompanied Asylum Seeking Children: Age Assessment Toolkit Contents Section 1: Background, legal and policy context 4 Purpose of this Toolkit 4 Development and engagement 4 ‘What matters’ assessment and ‘Merton compliant’ age assessment 4 Social Services and Well-being (Wales) Act 2014 (SSWBA) 5 Using the toolkit with statutory and other guidance and case law 6 Section 2: Context: Unaccompanied Asylum Seeking Children/Young People 7 Useful definitions 7 Unaccompanied Asylum Seeking Children/Young People (UASC): definitions 7 Unaccompanied Asylum Seeking Children/Young People (UASC): rights and entitlements 7 ‘Child first, migrant second’ 8 Why children/young people seek asylum 8 Section 3: Context: approaching the age assessment 9 Adverse Childhood Experiences and a trauma informed approach to age assessment 9 When age assessment is necessary 9 Rationale for age assessments 10 A person-centred approach to age assessment 11 Circumstances affecting the need for a formal age assessment 13 ‘Benefit of the doubt’ principle 13 Referrals for age assessments 14 The role of the Police 14 The role of Immigration Enforcement/UKVI 16 Establishing immigration status 16 Accommodation provision during the age assessment 17 Section 4: Support for children/young people around the age assessment process 18 Safeguarding, trafficking and missing children 18 Engaging an Appropriate Adult 19 Rights to advocacy and engaging services 21 Advocacy for age disputed cases 22 Age disputes and scenarios 22 Section 5: Preparing for and conducting the age assessment 25 Preparing for the Merton compliant age assessment 25 Statutory framework and timing 26 Multiagency working and information sharing 26 Medical reports 27 Working with interpreters 28 Scheduling time for the age assessment and follow up 29 Recording the interview(s) 29 Presenting new evidence 29 Analysis and decision making 30 2
Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
Actions checklist prior to undertaking the formal age assessment 30
Actions checklist in conducting the formal age assessment 32
Grounds for Judicial Review – ‘Merton Compliance’ checklist 34
Section 6: Following the age assessment 35
Actions following completion of an age assessment 35
Information sharing following the completion of an age assessment 35
Informed consent from the child/young person to sharing information 35
Sharing the outcome of the age assessment with the child/young person 35
Ongoing relationship between the child/young person and social services 35
Annexes
Annex 1a: Record of interview questions sheet 38
Annex 1b: Questioning the child/young person 39
Annex 1c: Model purpose of interview statement by social workers 39
Annex 1d: The child/young person’s journey 39
Annex 2: The age assessment proforma 41
Annex 3: Age assessment decision form for the child/young person 48
Annex 4: Model information sharing proforma for social services and the 49
Home Office/UKVI
Annex 5: Adverse Childhood Experiences and a trauma informed approach 52
to age assessment
Annex 6: Case law – what is meant by a ‘Merton compliant’ age assessment? 53
Annex 7: Key legal judgements since Merton 54
Annex 8: Resources to support the age assessment process 56
3Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
Section 1: Background, legal and policy context
Purpose of this Toolkit • a specialist Immigration lawyer and a former
Immigration Judge
This Toolkit is intended primarily to support local
• a former senior Welsh Government official
authority staff undertake age assessments of
and a former Director of Social Services
Unaccompanied Asylum-Seeking Children and
Young People (UASC). • several key organisations supporting children
and young people and facilitating their voice:
Social workers have the key role in conducting Hawliau training, National Youth Advocacy
age assessments and must be equipped to Service (NYAS) Cymru, Tros Gynnal Plant (TGP)
perform their role with adequate guidance, Cymru, Barnardo’s Cymru
training and support from line managers.
• Public Health Wales ACEs Hub and
Social workers should not be isolated in conducting • the WSMP.
age assessment which should be conducted using
a multi-agency and holistic approach requiring It was clear from these conversations that
social work managers, legal teams and partner the Toolkit developed by the WSMP with key
agencies to engage with the Toolkit. partners, retained credibility and integrity with
those who had experience of using it and it
Social workers are best supported when all was decided therefore to retain its substantive
participants in the age assessment process content appropriately updated and rebalanced.
become knowledgeable and competent.
‘What Matters’ assessment and
Development and engagement ‘Merton Compliant’ age assessment
The Wales Strategic Migration Partnership Social workers routinely work with sensitive
(WSMP) published the first Age Assessment and challenging cases often involving
Toolkit in 2015 which proved to be a useful safeguarding. They regularly conduct well‑being
resource in a developing area of work. It had (‘what matters’) assessments and make decisions
become clear, however, that the Toolkit required which affect the lives of children, young people
updating to reflect key legislative changes and their families. What may be more challenging
relevant to UASC, in particular the Social about undertaking full age assessments for
Services and Well-being (Wales) Act 2014 unaccompanied asylum-seeking children
(SSWBA); to reflect changes in case law; and to and young people is that these happen less
reflect the experience gained in implementing frequently and there is less experience and
these legislative changes onward from 2016. capacity overall in this area, both within the
social work workforce and in the specialist
The Welsh Government commissioned review legal practitioner workforce.
work comprising a wide variety of conversations
with practitioners familiar with the WSMP Toolkit The SSWBA does not specifically set out a duty
and others who had experience of the age to assess age. However, the duty to support
assessment process, in order to seek views on children entails a duty to assess eligibility for
what worked with the current Toolkit and what children’s social services. If there is no doubt
could be improved upon: about a young person’s claimed age, there
is no need to assess age however if there
• several local authority representatives as is doubt then an age assessment should be
key players in this field (Cardiff, Newport, carried out in order to determine access or not
Rhondda Cynon Taff and Swansea) to children’s social services.
4Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
This Toolkit builds upon the practice of The Toolkit contains:
assessment in social work more generally • best practice
and which can include the assessment of age.
It covers both the consideration of age that can • a range of important and contextual
take place during the well-being assessment information, and
process and also provides specific guidance • signposts to where further information can
around the age assessment process regarded be found.
as ‘Merton compliant’ which may, on occasion,
The Toolkit is for guidance only and is not
be required for these children and young people.
legally binding. However, following this guidance
While other judgements are referenced in this
alongside good social work practice and the
Toolkit, Merton remains the landmark judgement
SSWBA will not only ensure better well‑being
in this area.
outcomes for the children/young people
• R (B) v London Borough of Merton 2003 involved, but will help in preventing challenges
The Judge confirmed that the local authority to the assessment and possible Judicial Review.
“cannot simply adopt a decision made by UK
Visas and Immigration”. The Judge also stated Social Services and Well-Being (Wales)
that assessments cannot be made on the Act 2014 (SSWBA)
basis of demeanour only; that a range of other
factors must be taken in to account; there is The SSWBA requires a person-centred
a duty on decision makers to give reasons approach to assessing and meeting need.
for their decisions; the child/young person Described as a ‘what matters’ conversation which
must be allowed to participate; that two social must be used with children and young people,
workers must conduct the assessment it sets the basis for a refreshed approach to the
together and where there is doubt about relationship between people who use social care
age, the child/young person must receive services and those which provide them.
the ‘benefit of the doubt’.
The key Parts of the Act2 are set out below
Social workers should be aware of the other most with Codes of Practice3 providing further more
recent judgements in relation to age assessment: detailed statutory guidance.
• R (K) v Milton Keynes Council (2019) 4 WLUK Part 3 Assessing Needs: creates a right to
180 found that Merton recognised that no assessment when it appears a person may have
full assessment was required in clear cases. a need for care and support. The assessment
It was lawful for the authority to proceed in is based on personal well-being outcomes and
this manner without a full assessment. A full, any barriers to achieving these. It should be
detailed age assessment should be reserved noted here that the SSWBA entirely replaces the
for cases of doubt. concept of Section 17 of the Children Act 1989
• AB v Kent County Council (2020) EWHC which while giving local authorities duties and
109 (Admin) describes an amalgamation of the powers to provide services to children who
requirements in Merton and subsequent case need them to support their family care, because
law all of which is contained in the Home Office’s there is no specific duty toward an individual
Assessing Age for Asylum Applicants1 and the child (R(G) v Barnet (2003) UKHL 57, (2004)
Judge’s summary is included at Annex 6. 1 FLR 4544), a child who is assessed as needing
a service may not necessarily receive it.
1 www.gov.uk/government/publications/assessing-age-instruction
2 www.legislation.gov.uk/anaw/2014/4/contents – the Act
3 https://gweddill.gov.wales/topics/health/socialcare/act/code-of-practice/?lang=en – Codes of Practice
4 https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd031023/barnet-1.htm
5Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
Services are therefore made discretionary Part 7 sets out the duties on local authorities
and may be constrained by lack of resources. relating to safeguarding children (and adults) and
In contrast, Section 21 and other provision provides the basis for the Wales Safeguarding
within the SSWBA impose a duty on the local Procedures5 and their associated All Wales
authority to provide a service that meets an Practice Guides6.
assessed need where certain eligibility criteria
are reached. Part 9 Co-operation and Partnership sets out
duties on public bodies relating to co-operative
Part 4 Meeting Needs sets out how this need working and information sharing.
will be met which may be through a Care
and Support Plan which under Part 4 can, Part 10 Complaints, Representations and
where needed, provide the basis for Part 6 Advocacy Services sets out the functions of local
Child Protection Plans and for care plans for authorities with respect to advocacy, complaints
court under Section 31A, Children Act 1989. and representations. Children and young
people can often find expressing their opinions,
Part 6 sets out duties on local authorities relating experiences and emotions difficult, particularly
to looked after and accommodated children. when they are involved with complex processes
Accordingly, when UASC arrive in Wales, they in an adult dominated environment.
are placed in the care of foster families or enter
independent, supported living arrangements. Using the toolkit with statutory and
Section 76 specifies that a looked after child other relevant guidance and case law
should be offered accommodation, pending
a full assessment of need. Further, it states the This Toolkit should be used in conjunction with:
local authority must provide accommodation • the SSWBA, its Codes of Practice
to children where there is no one with parental and Regulations
responsibility, where children are lost or
• the Swansea Children’s Legal Centre
abandoned, or circumstances prevent them from
practice guide for social workers7 and
receiving appropriate care and support from their
the Welsh Government briefing about
parents. Section 78 specifies that before making
the Social Services and Well-being
any decision with respect to a looked after child,
(Wales) Act 2014 and UASC rights and
or a child the local authority proposes to look
entitlements8 and
after, the local authority must have regard to the
views, wishes and feelings of the child and any • the Wales Safeguarding Procedures and
other relevant person. their associated All Wales Practice Guides.
This toolkit is clear that unaccompanied For further information and context, see Annex 8.
asylum seeking children and young people
are to be treated as ‘looked after’ in accordance
with SSWBA.
5 www.safeguarding.wales
6 www.safeguarding.wales/chi/index.c6.html
7 https://gov.wales/unaccompanied-asylum-seeking-children-guidance-professionals
8 https://gov.wales/law-care-and-support-unaccompanied-asylum-seeking-children
6Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
Section 2: Context – Unaccompanied Asylum
Seeking Children/Young People
Useful definitions UASC are also sometimes referred to as
‘separated children’. Should a local authority wish
The United Nations Geneva Convention to place a UASC child/young person with a carer
of 1951 defines a ‘refugee’ as being: “any or relative, further enquiries and assessments,
person who owing to a well-founded fear of as for any non-UASC child/young person,
being persecuted for reasons of race, religion, would need to be in made.
nationality, membership of a particular social
group or political opinion, is outside the country For the purposes of this toolkit, the terms
of his nationality and is unable, or owing to such ‘child/young person’ or ‘children/young
fear is unwilling to avail himself of the protection people’ are used to describe ‘unaccompanied
of that country; or who, not having a nationality asylum‑seeking child/ren and young people’.
and being outside the country of his habitual
residence, is unable or owing to such fear UASC children/young people:
unwilling to return to it”. rights and entitlements
Home Office Immigration Rules9, define an In terms of rights and entitlements,
unaccompanied asylum-seeking child as one the unaccompanied asylum-seeking
who is ‘under 18 years of age when the claim child/young person is seen as a child first
is submitted – claiming in their own right – and foremost and any assistance and support
separated from both parents and is not being based on putting the needs of the child at
cared for by an adult who in law or by custom the forefront.
has responsibility to do so’.
While immigration legislation and policy are
UASC children/young people: not devolved to Wales, most services that
children/young people receive in Wales are
definitions the responsibility of Welsh Government,
Usually referred to in policy terms as UASC, local authorities and other public bodies
the unaccompanied asylum-seeking in Wales, where:
child/young person can be perceived within • a child/young person who is alone in the
these key definitions: UK with no family or friends to support
• as a child/young person outside their country them, is entitled to assessment, support and
of origin and protection in the same way as any other child
covered under Parts 3 and 4 of the SSWBA
• without the care and protection of parents
provisions on assessing and meeting need,
or legal guardians.
with such entitlements remaining until the
child/young person leaves the UK or until
their needs are otherwise met
9 www.gov.uk/guidance/immigration-rules/immigration-rules-part-11-asylum
7Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
• children/young people with specific and ‘Child first, migrant second’
particular vulnerabilities and risks arising from
abuse, neglect or other harms are entitled Although immigration status is a very important
to the application of the Wales Safeguarding element in the life of a child/young person,
Procedures and All Wales Practice Guides agencies should not let immigration status get
in the way of providing support as they would
• entitlements of the child/young person to
to any other child. All agencies are responsible
a ‘best interest consideration’ flow from the
for safeguarding and promoting the welfare of
principles of the United Nations Convention
the child/young person and ensuring they are
on the Rights of the Child (UNCRC) and of the
engaged with in a sensitive way.
Borders, Citizenship and Immigration Act 2009
Section 55 duty on UKVI10.
Why children and young people
Article 3 of the UNCRC states that “In all actions seek asylum
concerning children, whether undertaken by
public or private institutions, courts of law, There are many reasons why a child or
administrative or legislative bodies, the best young person may leave their home country.
interests of the child shall be a primary Reasons include:
consideration”. • persecution or the fear of persecution, due to
religion, nationality, ethnicity, political opinion
The UNCRC is embedded also within the
or social group
SSWBA: “A person exercising functions under
this Act in relation to a child falling within • having been trafficked
Section 6(1) (a), (b) or (c) must have due regard • parents having been killed, imprisoned
to Part 1 of the UNCRC …” or disappeared
Welsh Ministers must have due regard to • being in danger of being forced to fight
children’s rights when making decisions about or become a child soldier
new and existing legislation and policies, • poverty, deprivation, climate change, and war
and publish a report on how they and the or conflict more generally
First Minister have complied with the duty under
• being sent abroad by parents/family.
the Rights of Children and Young Persons (Wales)
Measure 201111.
10 www.legislation.gov.uk/ukpga/2009/11/section/55
11 www.legislation.gov.uk/mwa/2011/2/contents
8Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
Section 3: Context – approaching the
age assessment
Adverse Childhood Experiences Resilience is the ability to overcome serious
and a trauma informed approach hardship. Factors that support resilience include
personal skills, positive relationships, community
to age assessment support and cultural connections. For these
Whatever their reason for seeking sanctuary children/young people, these might also include:
in Wales, children, young people and adults • appropriate placement taking into account age
are likely to have experienced adversity and and religion, as well as individual, cultural and
traumatic events throughout their migration other circumstances
journey. Adverse Childhood Experiences (ACEs)
• supported independence and connection
are stressful experiences occurring during
to other refugees to promote purpose and
childhood that directly harm a child or affect
independence, and to establish ways of
the environment in which they live. Research
making a difference to their new culture
from Public Health Wales shows that ACEs
can happen in the home country, on the journey • a safe space for the expression of feelings and
to the UK and on arrival, and impact broadly experiences is created and that mental health
on the mental health, behaviour, learning or other individual needs are identified and
and academic achievement, and short term appropriate support is given13.
physical health of child refugee and asylum To reduce the risk of re-traumatisation
seekers. Unaccompanied minors (compared and promote positive outcomes, a trauma
to accompanied), and children experiencing informed approach should be taken to the
multiple ACEs, are particularly susceptible to age assessment process. See Annex 5 for
developing poor mental health outcomes12. more detail.
Research in Wales also shows that particular
adversity that may have been experienced by When age assessment is necessary
UASC children/young people includes parental
Unaccompanied asylum-seeking children/
separation and loss, child abuse and exploitation
young people who arrive in Wales are the
particularly on the journey, witnessing or
responsibility of local authorities under Part 6
experiencing violence and lack of social and
SSWBA which, by extension of its duty to
emotional support to cope with adversity that
support children, may sometimes entail a
may have been provide by parents. A trauma
duty to establish age to determine eligibility
informed approach recognises these factors
for children’s services. However, establishing
and what would make a positive difference to
a child/young person’s chronological age in
the lives of children and young people to reduce
the absence of authenticated documentation,
the likelihood of re-traumatisation or long‑term
may be problematic when:
impacts of ACEs, and support resilience.
12 https://issuu.com/acesupporthub/docs/aces_in_child_refugee_and_asylum_se_c51c6b5a06cc08
13 https://issuu.com/acesupporthub/docs/aberystwyth_aces_and_child_refugees_report_eng__fi
9Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
• they appear younger or older than their documentation to be false or does not belong
claimed age to the applicant
• they arrive without documents evidencing • where immigration officials believes a person’s
their identity and/or physical appearance and demeanour strongly
• they arrive without documents evidencing suggests they are over 25.
their date of birth or It is necessary in these eventualities for social
• they arrive with documents which are, or are workers to assess age in order to decide how
said to be, false a child/young person should be supported and
• they mislead about their age thus how their application for their asylum claim
should be processed.
• some countries do not recognise birthdays
• they may not know their chronological age Local authorities may on occasion conduct age
assessments prior to children/young people
• they may have suffered the most extreme being assessed by immigration officials, where,
forms of loss arising out of their experience for example, they are dropped off by lorry inside
of or witness to very traumatic events in Wales and referred by the Police. In such cases,
their home country or on their journey to the immigration officer will generally accept
the UK/Wales. the age as assessed by the local authority
All such eventualities bringing anxiety and stress (subject to evidence that the assessment was
with consequential effects on the ageing process properly conducted).
in terms of appearance, demeanour, memory The purpose of the initial ‘what matters’ SSWBA
and language. assessment for all children/young people who
As a consequence of some or all of these come to the notice of the local authority, is to
factors, some children/young people may find assess whether the child/young person needs
their age disputed by Home Office United care and support and is entitled to care and
Kingdom Visas and Immigration (UKVI) or support. In relation to UASC young people,
local authority social services. an important part of this process can be an
assessment of whether the child/young person
Rationale for age assessments is under 18 and thus covered by the scope of
the SSWBA.
Age determines how an asylum application
is processed and the rights and entitlements The majority of cases where a child/young
which follow as a child or an adult. If assessed person presents to the local authority, will
to be a child then there are entitlements to not go on to require a ‘Merton compliant’
children’s social services and other public age assessment. Only in a small number of
services such as Education. cases where there is any doubt to believe
or accept the young person’s claimed age
Challenges over the age of a child/young person (typically following request from UKVI or a
typically occur when a child/young person first Third Sector agency), will it be necessary
applies for asylum at a port of entry, Police to go further and establish age through a
station or an immigration screening unit and ‘Merton compliant’ age assessment process.
typically arises because a child/young person:
When it is deemed necessary to undertake a
• does not know their age or ‘Merton compliant’ age assessment, for example
• does not possess any documentation where age is disputed, the step by step checklist
such as a birth certificate or passport, approach outlined in this Toolkit will enable:
or where immigration officials believe the
10Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
• practitioners to work together in a A person-centred approach to
multi‑agency age assessment process age assessment
and approach assessment actions in the
best interests of children/young people A decision to consider age under Part 3 SSWBA
• improve consistency of practice in Wales and/or to undertake a full ‘Merton compliant’
when working with child/young people who age assessment may arise in a number of ways.
are particularly vulnerable The child/young person:
• ensure appropriate actions by frontline • may attend a Police station following
practitioners including social workers, a lorry drop
the Police and UKVI prior, during and • may walk in to a local authority social
subsequent to an age assessment, services office
in order to make informed, fair, robust • the UKVI may make a referral
and child‑centred decisions on age
• may arrive via the National Transfer Scheme
• enable local authorities to develop expertise for UASC or another Government scheme
in ‘Merton compliant’ and lawful decisions
• may, as a detainee held in a detention centre,
and thus reduce the burden of reproach
claim to be a child/young person
and legal action.
• a court may make a request or a set down
a direction
• may be referred by an individual or an agency
• when new information is received on someone
accommodated as a child, or
• when new information is received on someone
previously assessed to be an adult.
The flow chart below sets out a pathway
from first contact to assessment of need and
provision of care and support. At every stage
in the flowchart, it must be understood there
can be various different scenarios such as the
emergence of new evidence, legal advice,
advocacy referrals, actions taken by other
local authorities, notifying the Home Office
of decisions made at various stages, appeals
and so on.
11Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
UASC Point of Referral
New Arrival – Age Disputed: Dispersed as adult
arrived at by Home Office – Supported by
police station – partner organisation –
Home Office Migrant Help/Welsh Refugee
unaware Council/Links
Complete SSWBWA Well-being Assessment During the initial visit – have they been
deemed a child or possible child by any practitioner to date?
YES – Person UNDETERMINED NO (believed
becomes a Child apply ‘benefit of doubt’ to be an adult)
who is Looked After principle – Accommodate
and statutory as a Looked After Child
support given while a Merton Compliant
age assessment Ensure the
is undertaken decision is clearly
communicated and
recorded. Consider
Complete Toolkit need for any onward
Proforma and send Case remains open referral. Case closed.
to Home Office and and meet statutory Look at complaints
person’s legal team requirements process
Formal age assessment undertaken by UASC Age Assessment Social Workers
Record process and outcome of Assessment
CHILD – Decision delivered and ADULT – Decision delivered in
clearly explained in appropriate final session and clearly explained
language and shared with relevant in appropriate language and
parties including the Home Office shared with relevant parties
in writing in writing
12Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
Circumstances affecting the need for Where it is accepted that the unaccompanied
a formal age assessment asylum-seeking individual is a child/young
person but there is doubt about the exact age,
Statutory guidance on the care of children/young an age assessment may be helpful in ensuring
people issued by the Department of Education that appropriate services are provided. But it is
(England)14 which states that “Age assessments rare for significant and conclusive information
should not be a routine part of a local authority’s to follow. Any age assessment should be
assessment of unaccompanied or trafficked limited to the minimum necessary to ensure the
children” is a view this Toolkit supports. In this child/young person is receiving the appropriate
regard, social workers should be aware services, educational and other support.
that before UKVI will treat a child/young
person as a child in the immigration process, A fair, holistic, reliable and timely age assessment
it may request an age assessment from that limits uncertainty and stress is in the best
social services: interests of the child/young person. Its pace
should be guided by the young person and
• where social services determine that a full while it does not need to be completed within
age assessment is not necessary, the local a set number of days the local authority should
authority should refuse the UKVI request be mindful that the Home Office will fund the
• where an age assessment is acceded to it accommodation of the young person (which
should be conducted to the extent which is should be provided by during the process) for
sufficient to satisfy the UKVI without requiring 28 days only.
the child to go through what can be a
repetitive and distressing process There is no burden of proof on the child/young
person to ‘prove’ their age in either the ‘what
• it may be possible to use information matters’ SSWBA Part 3 Assessing Needs
already gathered by the ‘what matters’ process or the full ‘Merton compliant’ age
assessment rather than conducting further assessment process.
‘Merton compliant’ interviews.
Summarised below, with further information
Children/young people should not be routinely referenced, are several issues and actions for
exposed to a full age assessment process: social workers and all practitioners to consider
• unless the child/young person’s stated age is when encountering an unaccompanied
disputed (this could be by UKVI, the Police or asylum‑seeking child/young person.
another agency in contact with the child/young
person) or ‘Benefit of the doubt’ principle
• their appearance or demeanour suggests that
It is well recognised that age assessment
they are significantly younger or older than
is not a scientific process. Hence, the benefit
they claim to be and there is no documentary
of the doubt should always be given to the
evidence of their age.
child/young person and questions put in an
open‑minded way to explore any doubts.
14 www.gov.uk/government/publications/care-of-unaccompanied-and-trafficked-children
13Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
In particular, a young person who may be • as a referral by UKVI where it has evidence or
aged between 18 and 21 should be treated suspects a child/young person to be under 18,
as a child and accommodated as a child with a request to make an age assessment
while a full ‘Merton compliant’ age assessment • as a case that has already been age
is undertaken. disputed (likely known to UKVI and/or
• “Those whose ages are disputed should be other local authorities).
given the benefit of the doubt unless there
are compelling factors to the contrary” 15. Organisations such as Migrant Help18 and
TGP Cymru19 are likely to refer such ‘known’
• “The benefit of any doubt should always be cases in respect of whom some determination
given to the unaccompanied asylum‑seeking of age may be available but not necessarily a
child since it is recognised that age full age assessment by another local authority.
assessment is not a scientific process”
(A v Croydon16)
The role of the Police
• “Assuming its inquisitorial fact-finding role in
an age dispute, the Court should further afford With regard to children/young people and their
the disputed child the benefit of the doubt both interaction with the Police, social workers should
at the start and the end of the process. This is be aware that:
not the same as imposing a burden of proof on • a child/young person should not be charged
either party” (A v Camden17). with a criminal offence before the dispute
over his age is resolved20 21
If a local authority assesses the young person to
be 18 rather than 17, it will need to provide strong • Police are subject to a duty to safeguard and
supporting evidence that the young person is promote the welfare of children22, thus where
18 to avoid legal challenges. there is doubt about age, the Police have the
power to refer a child/young person to the
Referrals for age assessments local authority for a decision about whether
to carry out an age assessment
A child/young person can become known • a police constable is able to take fingerprints
to a local authority or other agency: on behalf of UKVI23. No minimum age is stated
• as a new arrival (unlikely to be known to in the legislation but UKVI policy is to take
the Home Office or other UK local authority). fingerprints of only those who are 5 years
All practitioners who encounter such of age and over.
children/young people who claim to be under
18, must make an immediate referral to social
services for support and safeguarding
15 https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-446
16 www.supremecourt.uk/cases/uksc-2009-0106.html
17 www.casemine.com/judgement/uk/5a8ff7df60d03e7f57eb291d
18 www.migranthelpuk.org/regional-services-wales
19 www.tgpcymru.org.uk/what-we-do/young-asylum-seekers-and-refugees-programme/
20 www.legislation.gov.uk/ukpga/Geo5/23-24/12/section/50
21
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/826813/PACE-
Code-C_2019.pdf
22 www.legislation.gov.uk/ukpga/2009/11/section/55
23 www.legislation.gov.uk/ukpga/1999/33/section/141
14Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
While the primary responsibility for recording The detention of an individual, within the PACE
biometric data (fingerprints and photographs) of holding time frame of 24 hours allows the Police
new arrivals rests with Immigration Enforcement, to take and record biographical and biometric
the Police also have responsibility. The Police, details where a child is over the age of 10 and
local authorities and UKVI should liaise at the if consent is given by a social worker or an
earliest opportunity to record biographical Appropriate Adult.
details and biometric data of the newly arrived
child/young person. There are additional rights for children25 which
social workers should note:
Where Immigration Enforcement is unable • the identity of the person who is responsible
to attend, the Police should take and record for the child/young person’s welfare should
biographical details and biometric data be ascertained as soon as is practicable
before arrangements are made to release the
child/young person to the care of the children’s • traffickers will make strenuous attempts to
social services. The early capture of biometric ‘recover’ child victims of trafficking from the
data and other biographical details (whether Police or the care and protection of social
or not a decision to prosecute follows) brings services, and
benefits to all agencies: • extreme care should be taken in identifying
• if children/young people go missing, the persons who claim to have responsibility
checks can be made if the individual for the child/young person. In this context,
presents elsewhere the Police are National Referral Mechanism
First Responders and will work with
• it gives the opportunity to determine any Barnardo’s as providers of advocacy for
previous contact with the UKVI, the Police trafficked children.
or children’s social services, and
• enables agencies to trace and safeguard Social workers will also wish to familiarise
vulnerable individuals who may go missing. themselves with Operation Innerste26 which
is a Police-led multiagency response to
Social workers should note that where safeguarding unaccompanied asylum seeking
the Police are the first point of contact with a children in the context of trafficking and going
child/young person and where the individual has missing. The Operation Innerste framework is
been identified as having entered or remained in built around treating young people as victims,
the UK unlawfully, the Police will make an arrest not suspects with welfare and protection as
for suspected entry without leave24 and take the the driving themes.
person into custody. Any child under 10 years
entering the UK without permission cannot be
arrested or held in police detention and officers
should ensure that the welfare of the child
is maintained.
24 www.legislation.gov.uk/ukpga/1971/77/section/24
25 www.legislation.gov.uk/ukpga/1984/60/section/57/1998-08-07
26 www.proceduresonline.com › uploaded_files
15Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
The role of Immigration • where the individual is thought to be a
Enforcement/UKVI child during the age assessment process,
they should be accompanied to Immigration
Where a child/young person (or an individual Enforcement appointments by a social worker
thought to be a child/young person) has been or other member of local authority staff or an
identified as having entered the UK unlawfully, Appropriate Adult.
Immigration Enforcement will endeavour to
attend the individual in police custody during Establishing immigration status
the 24 hours holding time frame for the purposes
of capturing the individual’s biometric data. Where a child/young person presents as
Social workers should note here that: a new arrival or as an age-disputed case,
social services should contact UKVI at the
• Immigration Enforcement does not fingerprint
earliest opportunity to establish whether they
children under 5
are known to UKVI and if so, to request their
• children aged between 5 and 16 can only be details and biometric data. Checks need to
fingerprinted in the presence of an adult who establish whether the child/young person
is the child’s parent or guardian, or a person
• has immigration status
who for the time being takes responsibility for
the child such as an Appropriate Adult • an asylum claim has been made
• although children aged 16 and 17 can be • has a legal representative
fingerprinted without the presence of an • were accompanied when they arrived
Appropriate Adult, it is good practice and in in the UK
the best interests of a child that the presence
of an Appropriate Adult is offered The relevant telephone numbers are:
02081964524 (Asylum Screening
• UKVI policy states: ‘Whilst a child between
Appointments Team) or 03001232235
16-18 years of age can be fingerprinted
(the Asylum Support Team).
without the presence of an adult, if that child
is vulnerable as defined in this guidance, When a decision is made to accommodate
they must not be fingerprinted unless and whether or not a ‘Merton compliant’
accompanied by an adult.’ age assessment is deemed necessary:
• ‘vulnerability’ is defined as an individual • practical support should be provided to the
‘who is or may be in need of community care child/young person to guide them through
services by reason of mental or other disability, their asylum claim
age or illness; and who is or may be unable • specific support in respect of ethnicity,
to take care of him or herself, or unable to language, religious beliefs, cultural norms and
protect him or herself against significant harm social opportunities will be relevant in ensuring
or exploitation’ that needs are met in line with the duties to
• where a child/young person is a potential consider these factors as set out in the SSWBA
victim of trafficking, they will therefore require • legal representation should be identified to
an Appropriate Adult inform the child/young person of the asylum
process, share relevant resources with
them27 28 and prepare them for every possible
outcome of their asylum claim
27 https://gov.wales/unaccompanied-asylum-seeking-children-guidance – specific to Wales
28 https://youngasylumguide.org.uk/
16Unaccompanied Asylum Seeking Children: Age Assessment Toolkit It is vitally important that the child/young person understands the asylum process. Social workers should possess sufficient knowledge of it or have ready access to practitioners with the required knowledge. The child/young person should also be referred to legal representation at the earliest opportunity29 30. Accommodation provision during the age assessment process A child/young person should be offered accommodation under Section 76 of the SSWBA pending a full assessment of need. Considerations will include: • safeguarding issues within the first 24 hours in relation to the choice of placement • when arranging accommodation, careful consideration should be given to the possibility that the child/young person could be an adult or younger than they have claimed • bed and breakfast or other adult accommodation is not suitable for children/young people. • the child/young person should be made “Looked After” and • a legal representative identified to explain the asylum process. The local authority’s role in this is only to assist accessing appropriate legal representation for an asylum claim. Where there are doubts about age necessitating a Merton compliant age assessment, it may be appropriate to commission specific accommodation for the child/young person in need of care and support and to engage colleagues in Housing Services at an early stage. 29 www.childrenslegalcentre.com/resources/getting-legal-representation/ 30 www.newport.gov.uk/documents/About-Newport/Immigration-Solicitors.pdf list of immigration solicitors in Wales, January 2021 17
Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
Section 4: Support for children/young people
around the age assessment process
Safeguarding, trafficking and • many trafficked children have been forced by
missing children their traffickers to learn a coached story to tell
practitioners if they are questioned
Child Trafficking and Modern Slavery is the • many children are under direct threat
recruitment, transportation, transfer, harbouring themselves, or have family members
or receipt of a child under the age of 18 years elsewhere who may be under threat
of age for the purpose or intended purpose of (or perceived threat) and
sexual or criminal exploitation such as forced
labour, domestic servitude and organ harvesting. • many children may have been provided
with documents as an attempt to minimise
Social workers, who have an important role professional curiosity. All documents should
to play in ensuring the safety of trafficked be checked for authenticity with the relevant
children/young people, should note that: issuing department.
• an increasing number of children have Where there are concerns that a child/young
been identified as potential victims of person may have been trafficked either into
trafficking, who or within the UK, First Responders including
• may have entered the UK with a trafficker who statutory agencies such as local authorities,
may or may not be a family member, and Police, UKVI and Third Sector agencies such
• under the control of a trafficker, may say they as Barnardo’s, New Pathways, BAWSO and the
are unaccompanied having been told by the Salvation Army, have a responsibility to complete
trafficker that by doing so when they will be a National Referral Mechanism (NRM) form.
granted permission to enter the UK. As First Responders, social workers should:
Further information on indicators of trafficking • complete the online Duty to Notify form,
and exploitation can be found within the used throughout the UK for adults and
All Wales Safeguarding Children who may children, and be aware that
be Trafficked Practice Guide31. This together • in the case of children under the age of 18,
with the Wales Safeguarding Procedures consent is not required for a referral
should assist social workers in initiating a child to be made.
protection enquiry in respect of any child/young
person believed to be at risk. The form32 has been designed to be responsive
and will identify the First Responder by their work
Children who have been trafficked into or within email address. This verification will need to be
the UK are likely to have had experiences which completed to progress with the form.
impact on their ability to participate fully and
openly in an age assessment. In addition to any Once the digitised NRM form has been
physical, sexual or emotional abuse they may submitted online to the Single Competent
have suffered: Authority (SCA) a link will be sent to download a
copy. The SCA will email an assigned reference
number to the practitioner lodging the NRM.
31 www.safeguarding.wales/chi/c6/c6.p3.html
32 www.modernslavery.gov.uk/start
18Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
If there is further information at a later date If the age assessment Judicial Review declares
that would be helpful in deciding whether the that the individual is over 18, then the individual
person is a victim of modern slavery, it can ceases to be entitled to the ICTG Service and
be emailed to the responsible practitioner33 the ICTG Service should refer the individual to
with the reference number in the subject line. existing mainstream adult provision as soon as
The same email address can be used to check possible from the final decision date.
if an NRM has previously been submitted for a
child/young person. Further information on the ICTG Service,
Section 48 guidance and referral forms
Furthermore, social workers should be aware is available35.
of the Independent Child Trafficking Guardians
(ICTGs) outlined in Section 48 of the Modern Making a timely referral after identification
Slavery Act 2015 as practitioners who support could be very helpful in reducing missing
children who have been potentially trafficked episodes, re‑trafficking and further abuse. It is
into and within the UK and should note that recommended that a photograph is taken of
all children identified as potentially trafficked the child/young person within the first 24 hours
must be referred to the Independent Child of encountering them. Securing consent to
Trafficking Guardianship Service34 Section 51 of be photographed should be enabled by an
the Modern Slavery Act 2015 puts on a statutory explanation of why the photograph is necessary:
footing the presumption that: that it is in their best interests in relation to their
safeguarding and protection. A photograph will
• where there are reasonable grounds to help the Police with their investigations should
believe a person is a victim of modern slavery the child/young person subsequently go missing.
and has reasonable grounds to believe If consent is refused by a child/young person,
that the person may be under 18, they are legal advice should be sought, and enquiries
to be treated as being under 18 years of made of the UKVI and Police who may have a
age for the purposes of care, support and recent photograph.
accommodation under the Modern Slavery
Act 2015 until an age assessment is carried
Engaging an Appropriate Adult
out by a local authority or the person’s age
is otherwise determined When a child/young person is undergoing an
• where an age assessment is being age assessment, case law has determined
undertaken, the child who has been trafficked that they must be afforded the opportunity to
will remain entitled to the ICTG Service under have an Appropriate Adult present at the age
the 2015 Act as they are presumed to be a assessment interview(s). The overarching role
child until the definitive assessment is received of the Appropriate Adult is to ensure that the
age assessment is conducted fairly and adheres
• in the event of a challenge to the age
to the legislative framework. More specifically
assessment decision, such as Judicial
their role is to:
Review, the child would continue to receive
the support of an ICTG Service until a final • ensure that the child understands what is
determination has been made. happening to them and why
33 nationalreferralmechanism@homeoffice.gov.uk
34 Tel: 0800 0434303 or CounterTrafficking@Barnardos.org.uk Secure email trafficking.referrals@bypmk.cjsm
35 www.gov.uk/government/publications/child-trafficking-advocates-early-adopter-sites
19Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
• support and advise the child/young person, • to be satisfied that they are not involved in
including asking for breaks if the child/young the age assessment process itself including
person needs a break to consult with the expressing any view on the age of the child
Appropriate Adult, to seek legal advice from • to use the same Appropriate Adult with all the
their legal representative, or if the child is tired, interviews undertaken with the child, unless
distressed or ill the child requests a different Appropriate Adult
• observe whether the social workers are • where the child refuses to have an
acting properly and fairly, and intervene Appropriate Adult, the social worker should
where appropriate explore reasons why and record the refusal
• assist with communication between the child along with the reasons given
and the social workers in a constructive and • it will rarely be appropriate for the social
appropriate manner worker to agree that the child/young person
• ensure that the child understands their rights, decide who shall act as Appropriate Adult,
including the right to seek legal advice before as they may have been instructed by their
continuing further with the interview. smuggler or trafficker to ask that they act
in this role
The Appropriate Adult should be independent
of the local authority and: • the Appropriate Adult should attend all
interviews with the child including the final
• they must be suitably trained meeting to communicate the outcome of
• have the necessary knowledge and skills and the age assessment process
• the confidence to intervene and challenge • social workers should ensure the Appropriate
• they must employ a non-judgmental Adult, child and any interpreter are able to
rights‑based approach and meet privately prior to the age assessment
interviews without social services
• be able to exercise objectivity.
being present
In order to comply with legal requirements, some • social workers should ensure that regular
local authorities in Wales choose to commission breaks are offered and that space is available
children’s advocacy providers to deliver this for the Appropriate Adult and interpreter to
service, either as part of their children’s statutory speak to the child in private
advocacy service or on a spot-purchased basis.
• the Appropriate Adult should be permitted
Key considerations for social workers/local to take notes during the age assessment.
authorities when engaging an Appropriate Adult: With the consent of the child, a copy of the
notes can be given to the social worker
• to provide information to the child prior to the
full age assessment which explains the role • the Appropriate Adult should have the
of the Appropriate Adult, including any written opportunity to meet privately with the child
information on the role directly after the interview so a debrief session
can take place with the child and interpreter
• to secure an Appropriate Adult/make a referral
in a timely manner so that there is no delay • the local authority should provide the
Appropriate Adult with a full copy of the
• to consider the suitability of the Appropriate
age assessment where the child consents
Adult and to establish that they have the
necessary knowledge and skills • practitioners should ensure that the
child/young person has an Appropriate Adult
• to be satisfied that the Appropriate Adult is
to accompany them to UKVI asylum interviews,
independent of the local authority and
and to act in the child/young person’s best
interest during the interview.
20Unaccompanied Asylum Seeking Children: Age Assessment Toolkit
Rights to advocacy and Consequently, children/young people often need
engaging services someone who can support them, be ‘on their
side’ and work with them to deal with barriers to
“Advocacy is about: speaking up for children and care and support, education, social activities and
young people, empowering children and young employment. They also may need someone to
people to make sure their rights are respected ensure they have access to quality legal advice
and their views, wishes and feelings are heard and representation and support their interaction
at all times; representing the views, wishes with solicitors.
and feelings of children and young people to
decision-makers, and helping them to navigate Social workers need to understand the role
the system.” 36 of advocacy in helping children/young people
access their rights and entitlements, convey
While all professionals working with their wishes and feelings, ensure their voice is
unaccompanied asylum-seeking children and heard in decision-making processes and help
young people have a continuing duty to remind resolve issues at the earliest possible stage.
them of their rights to advocacy and to facilitate
their access to advocacy services when needed, Advocacy practice is governed by the
the SSWBA imposes a specific duty requiring National Advocacy Standards and Outcomes
those exercising any function under the Act Framework. Led by the child/young person,
to have due regard to the UNCRC including independent advocates’ role (as agreed with
Article 12 which affords children with the right the child/young person) is to provide support in
to be listened to and participate in decisions identifying appropriate help which may involve
affecting them. speaking and negotiating with professionals
including representation at meetings and
Section 78 SSWBA also specifies that before other decision‑making forums and assisting in
making any decision with respect to a looked making to a complaint where informal resolution
after child, or a child the local authority methods are not successful. Advocacy services
proposes to look after that the local authority must ensure that the cultural, religious and
must have regard to the views, wishes and linguistic needs of a child/young person are
feelings of the child/young person and any respected and provide interpretation services
other relevant person. where necessary.
Unaccompanied asylum-seeking children and Independent professional statutory advocacy
young people are particularly vulnerable and operates within the legislative framework of the
may feel inhibited in engaging with services SSWBA and is not intended to replace other
for a number of reasons including: forms of advocacy intervention. An Independent
• fear of an unknown country and culture Professional Statutory Advocate has a specific
role and function which is their only role in a
• little or no other support networks in the UK
child or young persons’ life. They focus solely
(family or friends)
on maximising a child or young person’s voice,
• negative experiences with authority figures involvement, control of their own life and rights.
in their home country
• language and cultural barriers.
36 The Independent Professional Advocacy National Standards and Outcomes Framework for Children and Young People in Wales
https://gov.wales/advocacy-standards-and-outcomes-framework-children-and-young-people
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