The claimant, an Afghan national, arrived in the United Kingdom in the back of a lorry and claimed asylum, saying that he was 15 years old. The chief immigration officer on duty issued a Home Office ISM97 form in which she disputed the claimant’s claimed age but, in accordance with Home Office policy, gave him the benefit of the doubt on the basis that his physical appearance and demeanour did not “very strongly suggest” that he was 25 years of age or over. Later the same day he was seen and interviewed by social workers from the local authority who concluded that he presented physically and in his demeanour as aged between 20–25 years old, although that was disputed by a representative of the Refugee Council, a refugee charity which was providing support and advice to the claimant. On the basis of the social workers’ assessment, the local authority treated the claimant as an adult and declined to provide him with accommodation and other assistance pursuant to the relevant duties under the Children Act 1989. In turn, in reliance on the local authority’s assessment, the Home Office also treated him as an adult and arrested him later that day as liable for detention, before releasing him on bail. Subsequently, another charity which supported asylum seekers and refugees referred the claimant to a second local authority. After meeting with the claimant, two social workers from the second authority decided that he was not presenting “clearly and obviously” as either an adult or a child and that, given the doubt, it would be necessary to conduct a full age assessment. However, on becoming aware that the first local authority had already conducted an age assessment the second authority terminated the foster care placement which it had provided for the claimant. The claimant sought judicial review challenging the lawfulness of the first local authority’s assessment of his age as being procedurally unfair, in that it had been unlawful in his case for the authority to carry out an “abbreviated assessment”, based on physical appearance and demeanour, which did not comply with the full panoply of procedural safeguards for age assessments as laid down in case law.
On the claim—
Held, claim allowed. (1) Although there was no statutorily prescribed way in which local authorities were obliged to carry out age assessments, a decision-maker when deciding to treat a young person as an adult, in circumstances where the young person was claiming to be a child, was under a public law duty to make the necessary inquiries to arrive at an informed decision on the fact of the young person’s age. While the law now proceeded on the basis that the most reliable means of assessing the age of a young person, in circumstances where no documentary evidence was available, was by an assessment in line with the code developed in case law, which laid down guidelines to safeguard minimum standards of inquiry and fairness, it also acknowledged that there might be obvious cases where prolonged inquiry was unnecessary. There might come a point where an experienced social worker considered that they had conducted sufficient inquiries to be confident that the person in front of them was either an adult or a child, and where it would be pointless to nonetheless require the continuation of the inquiry process to achieve full compliance simply for the sake of form. While the principle of an abbreviated assessment was not disputed, the limitations of an assessment based on physical appearance and/or demeanour required that the decision-maker, if left in doubt, should give the benefit of that doubt to the claimant. It was recognised that a margin of error was inherent in initial assessments by Home Office immigration officers based primarily on physical appearance and demeanour and, while Home Office policy acknowledged the greater expertise of local authorities through their experience of working with children, that expertise had to be considered in the context of an assessment based on physical appearance and demeanour. Accordingly, while it might be legitimate for a local authority to assess age based on an abbreviated assessment of physical appearance and demeanour, it was incumbent on the authority to ensure that any such decision took into account the margin for error in the abbreviated nature of the assessment. It was not appropriate for the court to specify a permissible margin of error for initial assessments by local authorities based on physical appearance and demeanour, since the margin of error might depend on the circumstances of the assessment (paras 20, 31–38, 40, 42–44, 46).
(2) The first local authority’s assessment of the claimant’s age was flawed by reason of a decision not to follow up on potential relevant evidence or to come to a view on the claimant’s credibility, without acknowledging the margin for error in not doing so, by its failure to take account of the views of the Refugee Council representative, as a professional with relevant experience of Afghan boys, and by failing to conduct a full age assessment in circumstances where the claimant’s assessed age of 20–25 years was, in all the circumstances, too close to the cut-off age of 18 for the local authority not to give him the benefit of the doubt. Overall, the assessment of the claimant’s age, based on his physical appearance and demeanour, was unlawful because the abbreviated assessment had failed to adequately acknowledge the potential margin for error and give the claimant the corresponding benefit of the doubt (paras 53, 55–57).
Summary of the guidelines laid down by case law for age assessments (para 21).
Philip Rule (instructed by InstaLaw, Nottingham) for the claimant.
Catherine Rowlands (instructed by Invicta Law, Maidstone) for the defendant.