Petition Of Ala For Judicial Review And Answers
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2012] CSOH 135 |
| Date | 24 August 2012 |
| Docket Number | P1222/10 |
| Court | Court of Session |
| Published date | 24 August 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 135 | |
| P1222/10 | OPINION OF LORD STEWART in the Petition of ALA Petitioner; for Judicial Review of a decision by Angus Council dated 16 September 2010 that the petitioner ALA is over the age of 18 years and of a decision consequent thereon to transfer the petitioner to Glasgow and Answers for Angus Council, Respondents: ________________ |
Petitioner: Ms Stirling, advocate; Drummond Miller LLP, solicitors
Respondents: A Smith QC; Tods Murray LLP, solicitors
24 August 2012
[1] This is an application for a fact-finding, age assessment judicial review presented by a young Nigerian male visa‑overstayer, petitioner ALA. On or about 9 April 2010 petitioner ALA and another young Nigerian male stated to be his brother, petitioner ISA, also a visa‑overstayer, came into the de facto care of the respondents' social work department in circumstances described in my opinion in relation to petitioner ISA's petition. At that time petitioner ALA claimed to be 12 years old. He was in possession of a birth certificate showing his date of birth as 5 June 1997. The United Kingdom Border Agency [UKBA] visa application record shows that when the application was made the petitioner held a passport giving his date of birth as 5 June 1991. The birth certificate would make him 14 years old at today's date and the passport would make him 20. The passport is genuine and the birth certificate is a forgery: but these facts were not clear to the respondents on 9 April 2010.
[2] The respondents are a local government authority with responsibilities for children in need under the Children (Scotland) Act 1995. In terms of the 1995 Act a "child" is "a person under the age of 18". On 16 September 2010 the respondents carried out an age assessment. They assessed petitioner ALA's age at "18+". In other words petitioner ALA was not accepted by the respondents as being a "child" within the meaning of the Children (Scotland) Act 1995.
[3] Petitioner ALA's application seeks (a) declarator that the respondents' age
assessment is "wrong as a matter of fact" and that the age assessment was procedurally unfair; (b) reduction of the age assessment; (c) declarator that the petitioner is a child for the purposes of chapter 1 of Part II of the Children (Scotland) Act 1995, being a person under the age of 18 years and that he was born on 5 June 1997, or 5 July 1995 or 5 June 1995 or on such date after 9 April 1992 as the court thinks fit; (d) declarator that even if the respondents' age assessment was correct the respondents' decision to transfer the petitioner to the YMCA Glasgow is unlawful; (e) reduction of the decision to transfer the petitioner; and various ancillary orders. Petitioner ISA also seeks judicial review of the respondents' assessment of his age. The applications have been heard together.
[4] Having heard proof followed by counsel's submissions culminating on 28 October 2011 I made avizandum. I have now decided to grant the petition for petitioner ALA to the effect of declaring that the respondents' age assessment was wrong as a matter of fact. I shall reduce the age assessment. The Wednesbury attack on the fairness of the respondents' age assessment process has not been insisted on. The respondents' decision to transfer the petitioner to Glasgow in the autumn of 2010 has been completely overtaken by events; and counsel for the petitioner made very limited submissions about that matter. My own view on the information put before me is that petitioner ALA was probably about 17 years old at the time of the respondents' assessment which found the petitioner to be "18 +". The difference is material or at least was material at the date of the respondents' age assessment.
[5] There is no known technique or combination of techniques for determining age at a particular moment in time [T Smith and L Brownlees, Age Assessment Practices: a Literature Review and Annotated Bibliography, UNICEF Discussion Paper (New York, 2011)]. Margins of at least plus or minus two years are routinely quoted. Unusually, in the present case, there have been successive paediatric assessments. The most useful pieces of information available to me are the finding of Dr Birch, paediatrician, about the petitioner's growth over a six-month period and the opinion of Professor Cole, medical statistician, as to the petitioner's likely age derived from the fact and rate of growth. Dr Birch found the petitioner to be still growing after the date of the respondents' age assessment. On that basis Professor Cole stated that petitioner ALA was under 18 years of age. As a rule human males have stopped growing by the age of 18, the age at which they become statutory adults. On the evidence in this case it is for consideration whether asylum seekers claiming to be children should have their height measured on arrival or presentation and at six‑monthly intervals thereafter [see also AM, R (on the application of) v Solihull Metropolitan Borough Council (AAJR) (Rev 1) [2012] UKUT 118 (IAC) (14 June 2012), § 17].
[6] I have told the story of petitioners ISA and ALA in my opinion about petitioner ISA's application. The story of the petitioners is worth telling in some detail for the way it illustrates the challenges that can face asylum seekers claiming to be children without reliable age documentation, the challenges that face the public authorities who have to deal with them and the challenges that face judicial decision makers when required to undertake fact-finding age assessment judicial reviews. These challenges arise in large measure from the secretary of state's policy of granting unaccompanied asylum‑seeking children [UASCs] so‑called discretionary leave to remain until they are adults. By the time they are adults, or are, should I say, definitively determined to be adults, such claimants may hope to have acquired ECHR article 8 (family and private life) rights in the United Kingdom which prevent their removal even if their asylum claims are unfounded. The other advantage of being determined to be a UASC and of being accommodated by a local authority as a child in need is that formerly "looked after" children are entitled to local authority after-care services and support until the age of 25 or so.
Age Assessment Judicial Reviews
[7] Fact-finding judicial reviews for age assessment purposes are authorised by the decision of the Supreme Court in R(A) v Croydon London Borough Council [2009] 1 WLR 2557. This is a decision on the Children Act 1989, a statute which does not extend to Scotland. In terms of section 20(1) of the 1989 Act, the threshold qualification for obtaining accommodation from a local authority in England & Wales is that the applicant is "a child", meaning "a person under the age of eighteen". As I understand R(A) v Croydon London Borough Council, the question "child or not?" is a pseudo‑jurisdictional issue that has to be resolved before the local authority can be seised of the question whether, in relation to the applicant, it is bound to exercise its power to provide accommodation. If the local authority's assessment of age is disputed, the question whether the applicant is a child is an issue of fact to be determined by the court.
[8] The decision of the Supreme Court is not binding as to the construction of the
Children (Scotland) Act 1995; and there have to be reservations, with respect, as to whether the reasoning of the Supreme Court is persuasive in relation to the differently‑worded Scots statute. The application in Scotland of R(A) v Croydon London Borough Council is discussed in my opinion in L v Angus Council 2012 SLT 304 at §§ 115-164 and also in my opinion in the petition of petitioner ISA linked to this one. I incline to the view that the question whether an individual without reliable birth documentation is a child at a particular moment in time is a question of judgment rather than a question of fact; that this is recognised in the wording of the Children (Scotland) Act 1995; and that Scottish local authority age assessments are amenable to judicial review only on traditional Wednesbury grounds. Wednesbury review was the only remedy in England & Wales until the decision of the Supreme Court in R(A) v Croydon London Borough Council.
[9] However, in the present proceedings parties have joined issue on the
assumption that the Supreme Court's decision applies and have placed the question of petitioner ALA's age before me as an issue of fact for me to decide on the available evidence. So that is what I have done. The applications of petitioner ISA and petitioner ALA have been remitted for proof together. Parties are agreed that the evidence is to be shared. I refer to my opinion in the case of petitioner ISA for a detailed discussion of the evidence and the legal framework.
The respondents' age assessments
[10] The petitioners, petitioner ISA and petitioner ALA, arrived at Heathrow Airport on a direct flight from Lagos, Nigeria, on 11 April 2008. They were granted entry on accompanied-child, limited-stay tourist visas. Petitioner ISA travelled on a passport showing his date of birth as 06/11/1993, making him 14 years old at the date of entry. Petitioner ALA travelled on a passport showing his date of birth to be 05/06/1991, making him 16 years old at the date of entry. According to the petitioners they came to the United Kingdom with their father and another "boy", whom they did not know and who was passed off as their father's son. The consistent story of the petitioners is that they went with their father and the "stepbrother" to stay with their father's friend in a "tall, brown house" at an unidentified address in London.
[11] In June or July 2008 the father left, stating that he had urgent business elsewhere, otherwise reported as "an urgent family matter", but that he would come back for the petitioners. He reportedly took the petitioners' passports with him; and he never did come back....
To continue reading
Request your trial
-
Mohammed Ismael Suliman Abdullah For Judicial Review
...expressed by the same Lord Ordinary who decided L v Angus Council in ISA v Angus Council [2012] CSOH 134 at [11] and ALA v Angus Council [2012] CSOH 135 at [8] cannot be accepted, and is answered completely by Baroness Hale in R(A) v Croydon at [27]: “But the question whether a person is a ......
-
Au Against (first) Glasgow City Council And (second) The Advocate General
...together. Each concerned the age of a male asylum seeker from Nigeria: ISA v Angus Council [2012] CSOH 134; and ALA v Angus Council [2012] CSOH 135. After several days of evidence, but before he had heard submissions, he issued his opinion in L. Not surprisingly, armed with that decision, s......
-
Upper Tribunal (Immigration and asylum chamber), 2013-05-14, [2013] UKUT 256 (IAC) (R (on the application of SO) v London Borough of Barking and Dagenham (AAJR))
...the document. 60. In re-examination Mr Ambat said that there was always judicial criticism. He was referred to tab 9 paragraph 49 in ALA [2012] CSOH 135 and agreed that it seemed Lord Stewart had accepted that he had substantial experience of age assessments. He was also referred to the dec......