MVN v London Borough of Greenwich
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Picken |
| Judgment Date | 10 July 2015 |
| Neutral Citation | [2015] EWHC 1942 (Admin) |
| Docket Number | Case No: CO/3153/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 July 2015 |
[2015] EWHC 1942 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Picken
Case No: CO/3153/2014
Shu Shin Luh (instructed by Scott-Moncrieff & Associates) for the Claimant
Genevieve Screeche-Powell (instructed by the legal department of the London Borough of Greenwich) for the Defendant
Hearing dates: 23, 24, 26 and 29 June 2015
Introduction
My task in this case is to determine the age of the claimant ("MVN"), in the context of MVN's challenge to the decision of the London Borough of Greenwich ("Greenwich") made on 11 February 2014 assessing him to be an adult who was born on 8 July 1990. It is MVN's position that this assessment is wrong and that his actual birth date is almost seven years later, namely 13 May 1997. Therefore, whereas Greenwich has assessed MVN as being almost 25 years of age, MVN insists that he has only just, in May, turned 18.
It will be immediately appreciated that, given this wide disparity in the parties' positions concerning MVN's age, this is a somewhat unusual case. I acknowledge that there have been other cases in which the dispute over the age of a claimant has been not inconsiderable. So, for example, in R(Y) v LB of Hillingdon [2011] EWHC 1477 (Admin), the claimant was assessed as having been born in 1990 and so over 19, when her case was that she was 15 1/2 years old; and in a case earlier this year, R(A) v LB of Croydon JR/3436/2014, the claimant was claiming that she was born in 1997, yet the local authority assessed her date of birth to have been eleven years before that. MVN's case is not, therefore, exceptional despite being unusual.
The case, however, is notable for another reason also. This is because of the account given by MVN as to how he came to the United Kingdom. I stress that this is MVN's account, and that I shall come on later to deal with its credibility. That said, it is an account which is largely accepted by Greenwich, although not completely and certainly not inasmuch as it involves MVN's insistence that, in travelling to the United Kingdom, he did so as a minor rather than as an adult.
MVN grew up in the northern part of Vietnam in a village called Lan To in the commune of Thanh Cong in Thanh Nguyen Province. His parents farmed the land and raised livestock, and MVN attended the local primary school from the age of six, later moving to the secondary school, which shared the name Thanh Cong with the primary school which he had previously attended. MVN says that he left before completing year 7, and that this was in 2009 when he was 12 years old. MVN goes on to explain that his family was very poor, and that his father developed a drinking and gambling problem, which led him to become violent towards MVN's mother. It was because of this, MVN explains, that his mother left the family home suddenly and without saying goodbye. MVN understands that his mother, who left in 2008, went to live in England with a friend. However, MVN does not know whether this is in fact the case, having had no contact with his mother since 2009.
After MVN's mother left the family home, MVN states that he and his father struggled to cope, and that he left school (in 2009) in order to help look after the livestock and the house. MVN's father subsequently fell ill with liver cancer, and died, on MVN's account, when MVN was 13. This was in February 2010, and led to MVN going to live with one of his father's friends, a Mr Du, for a few months. According to MVN, it became clear that he could not stay in Vietnam because his father owed a criminal gang money and it was not safe for MVN to remain. Mr Du, therefore, arranged for an agent to take MVN out of Vietnam, in order that MVN could ultimately come to the United Kingdom to look for his mother. The agent was paid, MVN explains, with money (approximately US$4,000) which MVN had inherited from his father after his father had sold some land in the lead-up to his death.
MVN travelled initially by plane to Russia on a fake passport. He stayed in Russia for one or two days, before being taken in a lorry to Hungary. There, he was arrested by police along with the agent accompanying him, a Mr Hung, as the two of them were looking for food. Although Mr Hung was released, MVN was taken to an adult prison, MVN having given the police a date of birth in 1990 which meant that he was treated as an adult. There he remained for several months (strictly speaking, he served time in two separate prisons). He was then released from prison and taken to a detention centre which he was able to enter and leave at will, MVN having by this stage applied for asylum in Hungary. This was a claim which, however, was to fail. That failure led MVN to abscond and to go to the Czech Republic in the company of a Vietnamese man who was an associate of Mr Hung, who by this stage was himself in detention.
MVN stayed in the Czech Republic for about two months in the company of Vietnamese factory workers. He was subsequently taken by car from the Czech Republic to France in January 2011. In the car with him were two agents and two other Vietnamese people. After arriving in France, the agent who was driving the car left the group on the side of a motorway, and the other agent then took MVN and the other two Vietnamese people to a place in a forest known as the " jungle".
MVN stayed there for about ten days before concealing himself in a lorry which took him to the United Kingdom later the same month. MVN explains that there were six people in the lorry, and that all of them were Vietnamese. Half an hour or so after arriving in the United Kingdom, the lorry was stopped by the police and all its occupants were arrested and taken to a police station. It was at this stage that MVN gave his real name and true date of birth, something which he was insistent in evidence he had not previously done, in particular, in Hungary when in detention. MVN explained that he gave his real name and true date of birth because he was anxious to find his mother. MVN's position throughout his time in this country is that his date of birth is 13 May 1997.
After being held in a room at the police station for the best part of a day, MVN was collected by a social worker and taken into foster care. MVN stayed with his foster carer for two or three days, on the last day being taken out by the foster carer with another foster child in order to go to a local bank. After leaving the bank, his foster carer left him and the other child to walk around town, and the two of them went into a games shop. MVN left that shop in order to buy a drink when he was approached by two Vietnamese people who spoke to him. He asked them whether there were any Vietnamese grocery shops nearby and they said that they would take him to such shops as well as to a Vietnamese restaurant, promising to bring him back afterwards.
MVN went with these two people in their car on a journey which lasted one or two hours and during which MVN became frightened, saying that he wanted to go back and starting to cry. MVN states that his two companions threatened to kill him if he did not listen to them, and that they then took him to a house where he was forced to work in a cannabis factory. He was required, in particular, to water cannabis plants once a day and sometimes once every two days. He was in the house alone, with the two Vietnamese people taking turns to keep an eye on him. He was also beaten on one occasion and threatened with a gun, being told not to try to escape.
MVN remained in the house for just over two years, until 5 March 2013 when he was able to escape, the kidnappers having left the front door unlocked which they were generally careful not to do. MVN ran out of the house and, after about two hours, was able to flag down a car and ask the driver to call the police. The police arrived and MVN explained what had happened to him. The next day, he was interviewed by an immigration officer and then placed into foster care, where he remained until Greenwich assessed his age as being that of an adult rather than a child.
As I have indicated, there are aspects of this account which are not accepted by Greenwich, specifically MVN's insistence that at all times he was a minor, not an adult. I shall, therefore, have to return to these matters later, in addressing the central issue in this case, namely MVN's credibility and specifically his credibility in relation to the evidence he gave concerning his age and history. First, however, having given a flavour of the underlying factual background, I should say something about the legal principles applicable in an age assessment case such as this.
The law
There was essentially common ground between Miss Luh, MVN's counsel, and Miss Screeche-Powell, Greenwich's counsel, as to the relevant legal principles. What follows, therefore, draws on the various submissions made by both counsel. As will be seen, there is, however, one matter about which there is not agreement.
Significance of age assessment
I start by making it clear that the fact that, even on his case, MVN has recently become an adult does not make these proceedings academic. This is because, as Miss Screeche-Powell explained in her opening skeleton argument, local authorities owe duties under the Children Act 1989 to children in need in their area, duties which include a duty to provide accommodation and a duty to maintain, and those duties do not end when the...
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