Age assessments: short form assessments in obvious cases

April 12th, 2019 by Jonathan Auburn

Age dispute cases are, and probably always will be, highly contentious areas of the Administrative Court’s work. It is not uncommon for a young person to arrive from abroad with no documentation and stating they are 15, 16 or 17 years old, and then for social workers to look at the person and be convinced they are in their mid or late twenties. The social workers regard the situation as obvious, and for that reason do not undertake a more detailed age assessment. The young person issues a judicial review claim challenging the lack of a detailed age assessment.

That was the situation in R (K) v Milton Keynes Council [2019] 4 WLUK 180. K was an Ethiopian national, recently arrived in the UK and claiming to be 16 years of age. He is described in the reporting of the case as follows: “around five feet six inches tall; he had a receding hairline, grey hairs and stubble; he had a pronounced Adam’s apple and a deep voice; he had provided inconsistent accounts of his journey to the UK; there was no evidence of his age or date of birth; and that a custody sergeant had considered that he was likely 24 or 25 years old”.

The local authority social workers regarded the case as so obvious that they did not undertake a detailed age assessment. A judicial review claim was filed, with an application for interim relief. The submissions often deployed by claimants in this situation were raised here: physical appearance and demeanour are a notoriously bad basis for the assessment of age, the short-form assessment had been conducted in a police station without the presence of an appropriate adult, and it was said that the form of assessment did not comply with the well-established Merton principles.

Pepperall J declined to grant interim relief. He held that Merton recognised that no full assessment was required in clear cases. It was lawful for the authority to proceed in this manner without a full assessment. A full detailed age assessment was reserved for cases of doubt. There was no evidence with which to challenge the authority’s decision that it was a clear and obvious case. K had not established a properly arguable case that the authority had acted unlawfully. Accordingly, there was no basis for the court to order interim relief.

COMMENT: The Court’s analysis is undoubtedly correct. The Merton case is often misapplied. It does not demand a detailed assessment process in all cases. It is worth remembering what was actually held by Mr Justice Burton in R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin), [2003] 4 All ER 280:

Paragraph 27:
‘Of course, there may be cases where it is very obvious that a person is under or over 18. In such cases there is normally no need for prolonged inquiry; indeed, if the person is obviously a child, no inquiry at all is called for.’

Paragraph 35:
‘Policy Bulletin 33: Age Disputes, published by the Immigration and Nationality Directorate of the Home Office, states: “8.1 If the applicant claims to be a minor but his/her appearance strongly suggests that s/he is over 18 the applicant will be treated as an adult until such time as credible documentary or medical evidence is produced which demonstrates that s/he is the age claimed.”’

Paragraph 37:
‘It is apparent from the foregoing that, except in clear cases, the decision maker cannot determine age solely on the basis of the appearance of the applicant’.

Paragraph 38:
‘Similarly, the appearance and demeanour of the applicant may justify a provisional view that he is indeed a child or an adult. In an obvious case, the appearance of the applicant alone will require him to be accepted as a child; or, conversely, justify his being determined to be an adult, in the absence of compelling evidence to the contrary.’

Mr Justice Burton made those points in 2003, some 16 years ago now. Nothing has occurred since to diminish their force.  Looking to law and policy since then –

The ADCS Age Assessment Guidance of October 2015 (often cited by claimants in age dispute cases) states at page 6 that –
‘In some rare circumstances, it will be very clear that the individual is an adult well over the age of 18, so prolonged inquiry may not be required, as stated in the Merton judgement.’

The Statutory Guidance “Care of unaccompanied migrant children and child victims of Modern Slavery” issued in November 2017 states at para 35 that –

‘Where the age of a person is uncertain and there are reasons to believe they are a child, that person is presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with section 51 of the Modern Slavery Act 2015. Where an age assessment is required, local authorities must adhere to standards established within case law. Age assessments should only be carried out where there is reason to doubt that the individual is the age they claim. Age assessments should not be a routine part of a local authority’s assessment of unaccompanied or trafficked children.

It is clear therefore that it is not only lawful, but expected, that a fully detailed age assessment process is not undertaken unless there is real reason to believe that the person may be a child.

Jonathan Auburn

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