Recommendation 30

The Government has indicated that it intends to retain the benefit of the doubt for certain age-disputed persons, but that it intends to lower the threshold for giving the benefit of the doubt (which is currently extended to those who are assessed as being under 25 years old). Whilst the judgment of the Supreme Court in the case of BF Eritrea gives the Government leeway to lower this threshold, it must be borne in mind that there are severe consequences of mistakenly treating a child as an adult, which would amount to a denial of that child’s rights to education, support, and accommodation. Any lowering of the threshold increases the risk of wrongly identifying a child as an adult and unlawfully detaining a child in immigration detention. Whilst it is a burden on resources to give young adults the benefit of the doubt and treat them as children, a lower threshold may result in more children being placed into unsafe accommodation with inadequate safeguarding and no access to services such as education, to which they are legally entitled. Depending on the circumstances, treating a child as an adult may also result in trauma which may reach the threshold of violating Article 3 ECHR. It is imperative that the threshold test minimises as far as possible the risk that children will be misidentified as adults and denied their rights.