R (B) v Merton
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton |
| Judgment Date | 14 July 2003 |
| Neutral Citation | [2003] EWHC 1689 (Admin) |
| Docket Number | Case No: CO/881/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 July 2003 |
[2003] EWHC 1689 (Admin)
The Honourable Mr Justice Stanley Burnton
Case No: CO/881/2003
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Robert Latham (instructed by Shelter Legal Services) for the Claimant
Nicholas O'Brien (instructed by the Head of Legal Services of the London Borough of Merton) for the Defendant
Introduction
The Claimant is an asylum-seeker. He has no means of support in this country. He claims to be aged 17. If so, he is not an asylum-seeker within the meaning of the Nationality, Immigration and Asylum Act 2002, which does not apply to those who are not aged at least 18 years (section 18(1)(a)), and the Secretary of State for the Home Department has no responsibility for his support under that Act. But, if he is under 18, and is in need, he is owed a duty under Part III of the Children Act 1989 by the local authority in whose area he is, including a duty under section 20 of that Act, to provide him with accommodation.
However, on 13 February 2003 the Defendant determined that he was aged at least 18. On that basis, he was not a child and the local authority owed him no duty under the Children Act 1989.
In these proceedings the Claimant seeks the judicial review of that determination.
Both parties have asked the Court to give guidance as to the requirements of a lawful assessment by a local authority of the age of a young asylum seeker claiming to be under the age of 18 years. There are significant numbers of unaccompanied children entering the United Kingdom and claiming asylum. An acronym has come into use: UASC (Unaccompanied Asylum-Seeking Child).
The facts
The Claimant's case is as follows. He was born in the Ivory Coast on 6 February 1986. His father was a Catholic; his mother a Muslim. She was Senegalese. He was educated in part in Catholic schools and confirmed into the Catholic faith in 2000. His mother died in 2001 and was buried in Senegal. His father and he went to Senegal for the funeral, and while there his father was murdered. He then spent a year living on the streets in Senegal. He speaks French, but not English.
The Claimant states that he arrived in the United Kingdom from Senegal on 1 February 2003. On 7 February he was taken to the Refugee Council, which secured accommodation for him for the weekend.
On Monday 10 February 2003 he applied for asylum at Croydon. He could not name the airport where he had arrived in this country. The National Asylum Support Service (NASS) decided that he was not a minor and should be treated as an adult; they refused him support on the ground that they were not satisfied that he had made his asylum claim as soon as reasonably practicable after his arrival in the United Kingdom.
On 12 February the Refugee Council referred the Claimant to the Defendant borough for assistance under section 17 of the Children Act 1989. The Defendant did not assess him immediately, and asked him to return on 13 February.
On that day, he was interviewed by Christine Rodney, a social worker of the Defendant's Department of Housing and Social Services. He had with him the NASS letter of 10 February stating that the Home Secretary did not consider him to be a minor and refusing him support, and he produced it to Ms Rodney. The duration of the interview is in issue, the Claimant estimating it at 25 to 30 minutes and Ms Rodney at 45 minutes, but it is accepted by both sides that my decision cannot turn on this issue. Ms Rodney does not speak French. The interview was conducted through an interpreter on the other end of a telephone: Miss Rodney would give the interpreter the question, the telephone was then passed to the Claimant for him to hear the French translation and to give his answer, and the telephone would then be passed to Ms Rodney for her to hear the translation of the Claimant's answer and to ask the next question.
Ms Rodney did not keep a verbatim record of the interview. She used a pro-forma document, the Framework of Assessment for Children in Need and their Families, and completed it following the interview. She noted that he had gone to a Catholic school, but also that he identified with the Islamic faith and its culture. She took a family history, which included the murder of his father. She noted:
"Both (B's) parents are dead. His father was slayed by masked men. (B) was able to escape. (B) spent a year in Senegal on the streets before being assisted in coming to the UK."
Under the heading of "Ethnicity", Ms Rodney noted:
"(B) is a Black African, he is of the Catholic faith. �"
Under the heading "Summary", she noted:
"(B) is a young man who claims to be 17 years old. (B's) appearance is that of a much older man. My calculated guess (is that) he is in his late teens. Unfortunately, (B's) history is that of � experiencing loss and violence and this alone will affect him emotionally."
The original manuscript of the form shows that the number 17 was written over another number. The typescript made from the manuscript has the figure 16. Ms Rodney does not deal with this discrepancy in her witness statement. The most likely explanation is that the figure of 16 was originally written on the form, on the basis of her calculation of his age from the date of birth he had given and which she had written on page 1 of the form.
Ms Rodney concluded that although the Claimant was in need, he was not a child. Her assessment was as follows:
"(B) is not a child in need. I am not disputing that he is in need in his own right. I have followed the procedure by undertaking an assessment and from this assessment I am taking the stance of the Home Office."
In her witness statement, Ms Rodney stated:
"(Mr B) has the physical appearance of a person older than 17. He does not have a youthful appearance and in my view is at least 18�20 years old.
Throughout the interview (Mr B) was very mature and confident. I am of the view that (Mr B's) level of confidence is unusual for an unaccompanied minor."
Mr Latham relied upon the difference between this statement and that in the form that he was "in his late teens", and said that this part of her witness statement was an ex post facto attempt to justify her decision.
Ms Rodney also referred in her witness statement to inconsistencies in the Claimant's account of his history. In paragraph 23, she stated:
"There were a number of inconsistencies in (Mr B's) account of his history which made (me) doubt his credibility as follows:
a. (Mr B) did not remember what one of his educational diplomas was for. I am of the view that this is unusual for a 17 year old.
b. (Mr B) indicated that he was in school until 4 months ago but later in the interview said that he had been on the streets in Senegal for a year.
c. (Mr B) said that 4 months ago he had to stop school because his parents could no longer afford the fees, yet he said that his father had died a year ago and his mother before that.
d. (Mr B) said that he had been befriended by two strangers (one in the UK who took him to the Refugee Council and one in Senegal who took him to this country). (Mr B) was unable to identify these people. I am of the view that this account was a little far fetched."
At the end of the interview, Ms Rodney gave the Claimant a decision letter, dated 13 February 2003, signed by her team manager. It stated:
"This Department has taken the stance of the Home Office.
The Secretary of State does not accept that you are a minor and is satisfied that you should be treated as an adult. Accordingly, you will need to return to the Refugee Council and request that they advocate on your behalf with the Home Office."
The parties' contentions in summary
The Claimant contends:
i) The inquiries made by the Defendant were inadequate. It is not possible to determine age on the basis of appearance only, and the Defendant should have arranged for a medical examination before making its decision.
ii) There was procedural unfairness, in that he should have been given an adequate opportunity to answer the points that the Defendant was minded to hold against him.
iii) The Defendant did not itself make a determination of the Claimant's age, but simply adopted the conclusion of the Home Secretary.
The Defendant contends that the assessment process was rational, adequate and lawful; the decision made by it was a reasonable decision on a question of fact; and therefore that it cannot be impugned.
Mr Latham also submitted that the determination of the age of the Claimant was a determination of his civil rights within the meaning of Article 6 of the European Convention on Human Rights. If it is, clearly the decision of the Defendant's social worker is not that of an independent and impartial tribunal. However, Mr Latham also accepted that judicial review of the Defendant's decision would render the process as a whole Convention compliant.
The background
In a case such as the present, the applicant does not produce any reliable documentary evidence of his date of birth or age. In such circumstances, the determination of the age of the applicant will depend on the history he gives, on his physical appearance and on his behaviour.
There is no statutory procedure or guidance issued to local authorities as to how to conduct an assessment of the age of a person claiming to be under 18 for the purpose of deciding on the applicability of Part III of the Children Act 1989.
The determination of an applicant's age is rendered...
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