MA (by his litigation friend Roxanne Nanton of the Refugee Council) v Coventry City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henshaw |
| Judgment Date | 19 January 2022 |
| Neutral Citation | [2022] EWHC 98 (Admin) |
| Docket Number | Case No: CO/428/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen on the Application of
and
[2022] EWHC 98 (Admin)
BEFORE THE HONOURABLE Mr Justice Henshaw
Case No: CO/428/2021
CO/524/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Shu Shin Luh and Antonia Benfield (instructed by Instalaw Solicitors) for the Claimants
Deok Joo Rhee Q.C. and William Irwin (instructed by Government Legal Department) for the Second Defendant
The First Defendant and the Interested Party did not appear and were not represented
Hearing dates: 20–21 October 2021
Further written submissions received 1 December 2021
Draft circulated to the parties: 11 January 2022
Approved Judgment
| (A) INTRODUCTION | 3 |
| (B) FACTUAL BACKGROUND | 9 |
| (C) APPLICABLE PRINCIPLES | 14 |
| (1) Legislation | 14 |
| (2) Case law: age assessment | 16 |
| (3) Pre-existing age assessment policies and guidelines | 30 |
| (a) “Assessing age” | 31 |
| (b) EIG Chapter 55 | 36 |
| (c) Detention Services Order 02/2019 | 36 |
| (d) Joint Working Guidance | 38 |
| (4) Case law: lawfulness of policies | 39 |
| (D) THE GUIDANCE | 47 |
| (E) LAWFULNESS OF DETENTION AND THE GUIDANCE | 51 |
| (1) Age assessment while in detention | 51 |
| (2) Compliance with Merton case law | 55 |
| (3) Compliance with existing policies | 62 |
| (E) CLAIMANTS' APPLICATION TO ADMIT FURTHER EVIDENCE | 63 |
| (F) CONCLUSIONS | 65 |
(A) INTRODUCTION
By these claims MA and HT (“ the Claimants”) challenge or challenged the lawfulness of:
i) the Kent Intake Unit Social Worker Guidance (“ the Guidance”), pursuant to which they were each assessed by social workers on the basis of a ‘short’ age assessment (“ the KIU age assessments”) to be adults, the assessments having been carried out in respect of each of MA and HT on the date on which he was apprehended, viz 15 December 2020 and 10 January 2021 respectively;
ii) the subsequent decisions by the Second Defendant (“ SSHD”), taken following and on the basis of the KIU age assessments, to treat each of the Claimants as an adult (“ the Contested Decisions”), those decisions having been taken on the date of the assessment as indicated above; and
iii) their detention both (a) pending the carrying out of the KIU age assessments and (b) thereafter for 3 days at Yarl's Wood (in the case of MA), and for 4 days at Tinsley House (in the case of HT), following which they were dispersed to the First Defendant's area on 18 December 2020 and 14 January 2021 respectively.
As set out in their respective Detailed Statements of Facts and Grounds, the bases of the Claimants' challenges are as follows.
i) Ground 1: The SSHD acted unlawfully in disputing the Claimant's age for the purpose of his asylum claim on the basis of the KIU age assessment, which is not Merton compliant [i.e. in accordance with the principles set out in R (B) v London Borough of Merton [2003] 4 All E.R. 280, [2003] EWHC 1689 (Admin) (“ Merton”) and subsequent cases] and is not conducted in accordance with the SSHD's own published guidance, “ Assessing age”. Contrary to that guidance, the SSHD acted unlawfully in failing to refer the Claimant to a local authority for a full Merton compliant age assessment, on the basis that this was a case that under the policy required a full assessment to be conducted.
ii) Ground 2: The Guidance is unlawful on the basis that it is incompatible with “Assessing age” and further on the basis that it fails to adequately take account of the Court of Appeal judgment in BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872 [since reversed by the Supreme Court as noted later]; and therefore failing to specify that “ clearly an adult” must be an equivalent threshold to “ significantly over 18”. The Guidance is further unlawful due to the absence of provision in the policy for there to be a requirement for a form IS97M which relies upon a KIU assessment to state that expressly: absent which there is a high degree of likelihood of a lack of clarity as to who conducted the assessment, such that an individual assessed by Kent Intake Unit (“ KIU”) is unable swiftly to challenge that assessment. The policy should make clear that the assessment was conducted by KIU social workers (who are employed by the Home Office) and not Kent Social Services. The Guidance and the assessments in this case are further unlawful for failing properly to discharge the SSHD's duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to promote and safeguard the best interests of children.
iii) Ground 3: [MA] The SSHD unlawfully detained the Claimant at the KIU in circumstances where he had not been the subject of a Merton compliant age assessment and therefore should not have been detained under immigration powers. [HT] In the light of the fact that KIU age assessments are routinely conducted in a detained environment, in the absence of a Merton compliant assessment, the Claimant has been unlawfully detained.
The gist of the Claimants' challenges is as follows. Since September 2020, the SSHD has been detaining newly arrived unaccompanied young people at the KIU, a short-term detention holding facility at Dover port, and carrying out short assessments of their age using social workers whom she has employed. These assessments are conducted inter alia where the young person's claimed age is in doubt but the SSHD's officers do not consider that their physical appearance and demeanour very strongly suggest that they are significantly over the age of 18.
The procedure is said to be contrary to the SSHD's policies, and to law, because:
i) the age assessment is carried out whilst the young person is detained under immigration powers, contrary to established Home Office policy which states that age disputed young people must not remain in detention pending a Merton compliant age assessment;
ii) the assessment takes place within hours or a day of the young person's arrival into the UK, often after a long and traumatic journey by small boat or in the back of the lorry;
iii) the Guidance directs social workers to assume that young people who require age assessment at the KIU are “potentially clearly 18 and over” and to carry out only truncated age assessments which last no more than an hour, which (it is alleged) fails to afford the “benefit of the doubt” (i.e. to presume childhood to all age disputed children who require an age assessment because their physical appearance and demeanour does not very strongly suggest that they are significantly over 18, unless and until the assessment concludes otherwise and is Merton-compliant);
iv) no independent appropriate adult is offered to the age disputed young person at the assessment with social workers in a position of authority, at a time when they have just arrived in the UK, without adult family members, unfamiliar with the processes and practices here, and unaware of their rights; and
v) the evidence shows that no or no proper opportunity is given to the young person to know the adverse matters taken against them in a minded-to process and to have a fair opportunity to provide corrections, clarification and further information before a final decision on age is reached.
Each of the two Claimants was subject to a KIU age assessment when they arrived into the UK through Kent after difficult journeys to the UK. The First Claimant, MA, is a Kuwaiti Bidoon, whose claimed date of birth is 15 June 2004, who arrived in Kent following a long and difficult journey from France in the back of a lorry; was picked up by Kent police at a petrol station just after midnight on 15 December 2020 after asking for “ help”. His age assessment was carried out at around noon the same day, lasted for 42 minutes and concluded that he was 20 years old. MA's evidence is that he was not offered the opportunity to have an independent appropriate adult present at the assessment, was not given any opportunity to know what adverse matters the social workers were minded to rely upon to conclude he was older than claimed; and was not given any opportunity to provide clarification, corrections or further information about his age. Shortly afterwards, he was transferred to Yarl's Wood Immigration Removal Centre for three days, before being released to adult asylum support accommodation in Coventry.
The Second Claimant, HT, is an Iranian national, who claims to have been born on 6 May 2003, and to have been 17 on arrival in the UK. He was rescued at sea following a long journey in a rubber dinghy across the English Channel, at around 10.30am on 10 January 2021. His age assessment took place at 2.05pm the same day, lasted for an hour, and concluded that he was 21 years old. HT's evidence is that he did not have the opportunity to have an independent appropriate adult, to know what adverse matters the social workers were minded to rely upon to dispute his age, or to provide clarification, correction or further information about his age. On the evening of the same day, HT was transferred to Tinsley House Immigration Removal Centre for five days, before being put in adult asylum support accommodation in Coventry. During his detention at Tinsley House, the SSHD made a decision that his case was suitable for inadmissibility action under Immigration Rule 345A, a provision that applies only to adults and not children, and a notice of intent was sent to that effect.
Permission to apply for judicial review was granted by Foxton J on 11 May 2021. The First Defendant, Coventry City Council, subsequently decided to accept HT's...
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