B v Merton London Borough Council [2003] EWHC 1689

Unaccompanied young asylum seekers – age assessment – guidelines

 

The Claimant, B, was an asylum seeker with no means of support in the UK. He claimed to be 17 years of age. Were that to be the case, B would not be classified as an asylum-seeker within the meaning of the Nationality, Immigration and Asylum Act 2002, which does not apply to those under the age of 18 and the Home Secretary would have no responsibility for his support under that Act. If B were under 18, and in need, he would be owed a duty under Part III of the Children Act 1989 by the local authority in whose area he was, including a duty under section 20 of that Act, to provide him with accommodation. The local authority determined that B as aged at least 18. On that basis, he was not a child and the local authority therefore owed him no duty under the Children Act 1989. The decision letter stated that the LA had adopted the stance of the Home Office, which did not accept that B was a minor. B sought a judicial review of that decision, contending that the inquiries made by the LA were inadequate. It is not possible to determine age on the basis of appearance only, and the LA should have arranged for a medical examination before making its decision. Further, there was procedural unfairness, in that B should have been given an adequate opportunity to answer the points that the LA was minded to hold against him; and the LA did not itself make a determination of the B’s age, but simply adopted the conclusion of the Home Secretary. Both parties sought the Court’s guidance as to the requirements of a lawful assessment by a local authority of the age of a young unaccompanied asylum seeker claiming to be under the age of 18 years, but could not substantiate his or her claim with reliable documentary evidence.

 

The Court held that in cases where it was very obvious that a person was under or over 18 there would normally be no need for prolonged inquiry. However, in cases such as this one, where the person concerned was approaching 18 was only a few years over 18, but could not provide any reliable documentary evidence to support his or her claim to be a minor, the determination of age depended on the credibility of the history given, physical appearance and behaviour, factors which all interconnected. The decision-maker had to seek to elicit the general background of the applicant, including his family circumstances, his educational background and his history during the previous few years. Ethnic and cultural material might be important. If there was reason to doubt the applicant’s statement as to his age, the decision maker would have to make an assessment of his credibility, and would have to ask questions designed to test his credibility.

 

There was no statutory guidance or procedure issued to local authorities as to how to conduct an assessment of the age of a person claiming to be under the age of 18 for the purpose of deciding the applicability of the 1989 Act. Nor was there any reliable scientific test to determine whether a person was over or under 18. Whilst a local authority could take into account information obtained by the Home Office, it had to make its own decision. For that purpose it had to have available to it adequate information.  If all the local authority had done as stated in the decision letter was to take the stance of the Home Office, its decision would have been unlawful. The judge was satisfied that the LA in this instance did make its own assessment although its reasons were inconsistent with the decision letter. A local authority was obliged to give adequate reasons for its decision that an applicant claiming to be a child was not a child, and who was therefore refused support under Part III of the Children’s Act. The consequences of such a decision could be drastic for the applicant, and he is entitled to know the basis for it, and to consider, if he could, with legal assistance if it was available to him, whether the decision was a lawful one. The reasons did not need to belong or elaborate: it would have sufficed for the decision-maker to inform B that the decision was based on his appearance and behaviour and on inconsistencies in his history.

 

The judge went on to say that the court should not be predisposed to assume that the decision-maker had acted unreasonably or carelessly or unfairly. It was for a claimant to establish that a decision-maker had so acted. It was not necessary to obtain a medical report, nor was it necessary for a local authority to support an applicant for a period of days or weeks to give others an opportunity to observe him, if the information available was sufficient for a decision about his age to be made. However, if a decision-maker formed the preliminary view that an applicant was lying about his age, he had to be given an opportunity to address the issues that led to that view. The LA had failed to give B such an opportunity and had failed to establish that B’s responses could not have reasonably altered the decision. There was not a suitable alternative procedure for B to challenge the decision: there was no evidence about Merton’s complaints procedure and any complaint under s26 CA 1989 would have been too slow for a child without accommodation or support. The LA’s decision therefore had to be set aside and the LA had to reassess B’s age.

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