R AB v The London Borough of Brent

Hearing date: 13 October 2021

Introduction

These three claims for judicial review concern the Defendant local authority's obligations to provide accommodation under section 20 of the Children Act 1989 for unaccompanied asylum seekers pending the completion of assessments of their age. In each case the Defendant declined to accommodate the Claimant under s.20 of the Children Act 1989 on the grounds that they did not appear to the local authority to require accommodation.

The relevant statutory duties and powers, and statutory and non-statutory guidance were reviewed by Lavender J in R(S) v Croydon LBC[2017] EWHC 265 (Admin), [2017] PTSR 744 in which he held that it was unlawful for Croydon LBC not to treat the claimant as a child pending determination of his age assessment and allowed a claim for judicial review of a refusal to provide accommodation and support to the claimant pending the conclusion of an age assessment. In the present cases the Defendant local authority accepts that, pending the conclusion of an age assessment, each Claimant fell to be treated as a child but contends that given the timeframe for their age assessment and their placement at a hotel, it was lawful for it to decline to provide accommodation to them.

I have received witness statements from each Claimant, from social workers for the local authority, from AD's foster carer, and from Helen Johnson, Head of the Refugee Council's Children's Section.

Background

On or around 4 September 2020 the Home Office placed some 180–200 asylum seekers in the Holiday Inn, Empire Way, Wembley, London, under s.98 of the Immigration and Asylum Act 1999, using the National Asylum Support Service (“NASS”). Over time, some occupants were dispersed and new occupants arrived but the overall numbers placed in the hotel remained roughly constant. Before placing the asylum seekers at the hotel, the Home Office had taken the view that each one of them was an adult. They could not be provided with NASS accommodation unless they were adults. In the last few months of 2020, the Defendant local authority received referrals for at least ten of those asylum seekers, including the three Claimants, for services to be provided to them as putative children. The local authority owes certain obligations to children, including under s.20 of the Children Act 1989, but those obligations are not owed to adults.

AB

AB states that he is an unaccompanied child from Afghanistan who arrived in the United Kingdom on 27 September 2020. He was placed in the Holiday Inn, Empire Way, on the same date. As set out in its letter of response to his solicitor dated 10 December 2020, the local authority first received a referral in relation to AB on 30 October 2020. The local authority carried out an initial visit on 2 November 2020 and sought to arrange assessment interviews. On 4 December 2020 solicitors for AB referred his case to the local authority for Children Act support. On 8 December 2020 a pre-action letter was sent to the Defendant challenging the failure to afford such support. On 10 December 2020 the Defendant responded: it stated that age assessment interviews had been scheduled for 11 and 17 December 2020 and that the age assessment process “will therefore be completed within a short period of time”. It denied that it had unlawfully failed to provide AB with accommodation under s.20 of the Children Act 1989, and wrote,

“As a significant number of alleged UASC (Unaccompanied Asylum Seeking Children) have approached the Local Authority, it was proposed that the Local Authority will:

1) Within two working days of the referral through Brent Family Front Door (and legal services) seek to undertake an initial assessment of the person subject of the referral.

The Local Authority will take a preliminary view as to the welfare of the person and assess whether there are any apparent safeguarding issues. Provided that there are no immediate issues and that the person is not going to be dispersed imminently;

2) The person will remain in the accommodation provided by the Home Office, for a short period whilst the Local Authority make arrangements to carry out a Merton Compliant age assessment.

Should the subject of the referral face immediate risk of dispersal in advance of us completing the age assessment, provided that the Local Authority has been notified by the Home Office of the risk of dispersal, the Local Authority will seek to accommodate such person.

If at any stage it is apparent that the person subject to the referral is a child the Local Authority will seek to accommodate that person in a placement in accordance with the preliminary assessed age and needs until such time that a full Merton complaint age assessment can be completed.

The Home office has provided your client with NASS accommodation at the Holiday Inn – Empire Way. This accommodation is comprised of hotel rooms with their own shower facilities and provision of basic toiletries. The Home Office has put in additional support and facilities for the residents… These include: 24 hour security, a manager and 3 support staff, meals, medical assistance and three meals a day.

The Local Authority contends that for at least a short period, the NASS accommodation provided by the Home Office is suitable accommodation, considering the circumstances and subject to the Local Authority's initial assessment and age assessment.”

Also on 10 December 2020, the local authority emailed AB's solicitors that,

“… although the second assessment interview will take place on 17.12.20 you will appreciate that the assessor requires time to complete the report and this can take up to in the region of 14 days and go through the local authority's approval process. We must also allow for the upcoming Christmas period.”

AB's claim for judicial review was issued on 21 December 2020. On the following day Julian Knowles J granted interim relief, ordering the Defendant to “treat the Claimant as a child pending a completed age assessment” and to secure that the Claimant “is accommodated under s. 20 Children Act 1989 … until 14 days after notification to the Claimant's solicitor of the completion of an age assessment said to show the Claimant to be an adult.” Permission to apply for judicial review was granted on 4 March 2021. Following the grant of interim relief, AB was placed with a foster family. He has told the court that “I feel stable and secure and for the first time [since coming to the UK] I am feeling happy.” Whilst with foster carers he has been taught basic living skills and started on-line English classes. Whilst in the Holiday Inn he felt scared, trapped, stressed, and isolated. He had no educational provision and no activities. He did not like the food and sometimes missed meals.

AB's age assessment was concluded on 6 May 2021. The written assessment is 41 pages long. It concludes that AB was born on 7 April 2004, so he was 16 when placed at the Holiday Inn.

NLK

NLK states that he came to the United Kingdom unaccompanied from Sudan. He arrived on or around 20 August 2020. He says that he experienced traumatic early life experiences including torture. He was dispersed to the Defendant's area and was placed in the Holiday Inn, Empire Way from on or about 4 September 2020. On 16 November 2020 his solicitor referred him to the local authority for services as a putative child. The following day a pre-action letter was sent to the Defendant challenging the failure to afford Children Act support. On 19 November 2020 the Defendant visited NLK and responded to the pre-action letter. The local authority did not set out any timetable for conducting an age assessment but otherwise the letter is in identical terms to those quoted from the letter of response regarding AB at paragraph 5 above.

NLK issued a judicial review application on 3 December 2020. On the same day NLK was removed into immigration detention. The local authority had not been informed in advance. NLK's belongings remained in his room at the Holiday Inn. On 7 December 2020 Fordham J granted interim relief to the same effect as that granted by Julian Knowles J in the case of AB. Permission to apply for Judicial Review was granted on 2 January 2021.

Following the interim relief order the local authority managed to secure the return of NLK to its area and on 10 December 2020 placed him in a semi-independent unit for young people. Ms Grahovac, Social Worker, says that it was “at this point” that Brent decided that it would undertake a full age assessment. NLK speaks Fur (a rare Western Sudanese dialect) and it was difficult to find an interpreter. The age assessment process was completed on 9 April 2021. The written assessment is 33 pages long and concludes that NLK is an adult born on 1 January 1995, so he was 25 years old when placed at the Holiday Inn.

AD

AD says that he entered the United Kingdom unaccompanied from Afghanistan. He entered on 4 September 2020 and claimed asylum. He was placed by the Home Office at the Holiday Inn, Empire Way. His solicitor made a referral to the local authority on 24 September 2020 stating that he was a putative child. A pre-action letter was written on 12 October 2020 and the Defendant...