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R HAM v London Borough of Brent

Judgment Public and Third Sector Law Reports Cited authorities 20 Cited in 20 Precedent Map Related
Vincent
JurisdictionEngland & Wales
JudgeMr Justice Swift
Judgment Date22 July 2022
Neutral Citation[2022] EWHC 1924 (Admin)
Docket NumberCO/4346/2021
CourtQueen's Bench Division (Administrative Court)
Year2022
Categories
Between:
The Queen on the application of HAM
Claimant
and
London Borough of Brent
Defendant

[2022] EWHC 1924 (Admin)

Before:

Mr Justice Swift

CO/4346/2021

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Philip Rule (instructed by Instalaw Solicitors) for the Claimant

Joshua Swirsky (instructed by London Borough of Brent) for the Defendant

Hearing date: 5 April 2022

Approved Judgment

Mr Justice Swift

A. Introduction

1

The Claimant is a Sudanese national who arrived in the United Kingdom on 21 May 2021. On arrival he made a claim for asylum. This litigation does not concern his asylum claim, but rather the provision made for him pending determination of that claim. On arrival, the Claimant told Home Office officials at the Kent Intake Unit that his date of birth was 16 March 2004. On that basis he was aged 17 and should, for the purposes of provision of accommodation and support, have been treated as a child. The officials at the Kent Intake Unit did not believe the Claimant to be a child; they assessed him to be 23 years old with a date of birth as 16 March 1998. The Claimant was treated as an adult and provided with initial accommodation at a hotel in Wembley, in the area of the Defendant local authority.

2

Subsequently, social workers employed by the Defendant (“the Council”) also assessed the Claimant to be 23 years old. That decision was made on 4 August 2021. In these proceedings, filed on 20 December 2021 and issued on 23 December 2021, the Claimant challenges that decision and a further decision evidenced by an email from the Council dated 30 November 2021. The further decision came about as follows. On 24 September 2021, solicitors acting for the Claimant sent a pre-action letter setting out a number of criticisms of the way the age assessment process had been conducted, overall, asserting that the assessment had not been lawfully conducted. The response to that letter was sent on 1 October 2021 (the letter bears the date 1 September 2021; it is common ground that was in error). In that letter the Council rejected the complaint made about the age assessment process. The next correspondence was an email from the Claimant's solicitors sent on 29 November 2021. That email enclosed “additional evidence” in respect of the Claimant's age, and requested the Council to reconsider its decision. The new evidence was a letter dated 26 November 2021 from Daniel Smith, a Senior Youth Case Worker at “Young Roots”, a charity that provides support to asylum claimants aged between 11 and 25 years old. The material part of the letter said this:

“I have met [the Claimant] on two occasions, both times at our “Ahlan” youth club which is set up specifically to support young males up to the age of 25 living in Home Office contingency hotels in West London. [The Claimant] is a regular attendee at this youth club where he enjoys playing pool, PlayStation, learning English and socialising with other young people. In the two meetings I had with [the Claimant], we discussed his welfare and wellbeing in the hotel. He told me he was finding it very hard to live amongst older people. I offered to assist him find legal representation as he was very confused about the legal process. It transpired that [the Claimant] already had legal representation for both his age dispute and his immigration matters but was seemingly unsure about who they were and struggled to understand their different roles. This type of confusion is very common in the young people we work with. [The Claimant] is friends with another young Sudanese male who he plays pool with at our youth club. This person has a claimed age as 16, a little bit younger than [the Claimant]. They are friends and comfortable socialising together. Young people tend to gravitate towards those of similar ages. It is rare for young people to befriend people who are significantly older or younger than themselves. I have not seen anything that suggests to me he is lying about his age. He presents like a 17 year old. From the interactions I have had with him, his appearance, demeanour and interactions with other young people indicate he is likely to be 17 years old.”

The Council replied on 30 November 2021.

“My client instructed that the additional evidence that you provided in support of your client's age is not enough for us to reconsider.

Your client has had two assessments, one by KIU Intake Team and the second by ourselves. In fact your client himself told us he did not know if he was child or adult.

In the circumstances, we maintain the conclusion made in the assessment filed on 04 August 2021.”

3

So far as concerns the 4 August 2021 decision, the grounds of challenge set out in the Statement of Facts and Grounds largely follow the complaint made in the 24 September 2021 pre-action letter. The 30 November 2021 email is challenged on the basis that the decision not to reconsider the August 2021 decision was unlawful given both (a) the criticisms set out in the 24 September 2021 letter; and (b) the further information in Mr Smith's letter.

4

Although the parties, quite properly, plead their cases by reference to the facts of this case, the submissions for both sides have also been put on a wider basis: whether, and if so in what circumstances, a local authority may lawfully carry out an age assessment without conducting what is referred to in the submissions and commonly described as a “full, Merton-compliant assessment”, but instead by conducting what was referred to in submissions as a “short-form assessment”.

B. Fairness and the decision in Merton

5

If a person claiming asylum is under the age of 18 the local authority whose area he is in must exercise various powers available to it under Part III of the Children's Act 1989 (“the 1989 Act”) to provide accommodation and support. For this purpose, whether the person concerned is under 18 years old is a question of jurisdictional fact: ultimately it is a matter for determination by a relevant court, not a question to be determined as a matter of reasonable assessment by the local authority subject only to the usual requirements of public law legality: see R(A) v London Borough of Croydon [2009] 1 WLR 2557. In practice, when in asylum cases there is a need for judicial determination of a person's age, that task will be undertaken in proceedings before the Upper Tribunal Immigration and Asylum Chamber.

6

There is also a distinct requirement that age assessment decisions must be the product of a fair procedure. The initial emphasis in this area on the need for a fair procedure pre-dated the decision of the House of Lords in A v Croydon. Prior to that judgment, when determination of whether an asylum claimant was a child was a matter of assessment for the relevant local authority, there were obvious reasons for a heightened focus on the need for fair procedure. Notwithstanding the recognition in A v Croydon that whether a person was a child is, so far as concerns the duties under the 1989 Act, a matter of jurisdictional fact, the requirement for fairness has not diminished. If the decision has been taken by a process considered not to meet the legal standard of fairness it can be challenged and may be quashed on that ground alone, entirely independent of its substantive merit.

7

The benchmark for what fairness requires in this context is commonly referred to as a “ Merton-complainant assessment” after the judgment of Stanley Burnton J in R(B) v Merton London Borough Council [2003] 4 All ER 280. The headnote in the All England Reports summarises the situation before the court in that case:

“The claimant was an unaccompanied asylum seeker with no means of support in the United Kingdom. He claimed to be 17 years old. The Home Office did not consider him to be a minor and treated him as an adult. As a person aged under 18 and in need, he would have been owed a duty of part (iii) of the Children's Act 1989 by the local authority in whose area he was, including a duty to provide him with accommodation. The Defendant local authority interviewed him in order to assess whether he was a child in need. The interview was conducted by a social worker in person with an interpreter available on the telephone. The social worker considered there were a number of inconsistencies in the claimant's account of his history which led her to doubt his credibility, but she did not put those inconsistencies to the claimant. She determined that, while in need, the claimant was aged at least 18. He sought judicial review of that determination. The court was asked to give guidance of the requirements of the lawful assessment of the part (iii) of the 1989 Act by a local authority of the age of a young asylum seeker claiming to be under the age of 18 years.”

8

Several passages in Stanley Burnton's judgment are taken to describe the elements of a fair procedure in this context. For sake of clarity I will set out those passages in this judgment.

“20. 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.

21. 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.

…

27. Of course, there may be cases where it is very obvious that a person is under or over 18. In such cases there is normally no need for prolonged inquiry; indeed, if the person is obviously a child, no inquiry at all is called for. The present is not such a case. The difficulty normally only arises in cases, such as the present, where the...

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