R (on the application of AM) v Solihull Borough Council
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,C Lane |
| Judgment Date | 12 October 2011 |
| Neutral Citation | [2012] UKUT 118 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 12 October 2011 |
[2012] UKUT 118 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Mr C M G Ockelton, Vice President
Upper Tribunal Judge C Lane
In The Matter of an Application for Judicial Review
The Queen on the Application of
For the Claimant: Mr Adrian Berry, instructed by Public Law Solicitors
For the Defendant: Mr Jon Holbrook, instructed by Solihull MBC
R (on the application of AM) v Solihull Metropolitan Borough Council (AAJR)
The claimant claims to be a minor, born in 1994. He arrived in the United Kingdom in January 2010 and claimed asylum. He was placed with foster parents, Mr and Mrs Patel, and attended Washwood Heath School. Quite soon, the school expressed doubts about his claimed age, and at the school's request Solihull MBC, in whose area Mr and Mrs Patel live, undertook an age assessment.
Solihull has undertaken two assessments, one in May 2010 and one in December 2010, and concluded that it would be right to assign to the claimant a nominal date of birth of 1 January 1992, making him over 18 when he came to the United Kingdom. It is the second assessment, dated 17 December 2010 that the claimant challenges in these proceedings. The claim form was not issued until 17 March 2011. It was accompanied by an application for urgent consideration and interim relief. Blake J declined to grant interim relief before permission, remarking that “it could be said that the claimant has not acted promptly in the adverse age assessment” and extended time for the acknowledgement of service. Walker J ordered the application for permission into court and by order dated 14 April 2011 granted permission and interim relief, and transferred the claim to this Tribunal.
Meanwhile, the Secretary of State considered his asylum claim. On 31 March 2010 the claimant was issued with what is called an “Immigration Status Document”, indicating the British Government's recognition of him as a refugee and describing him as born on 1 September 1994. On the basis of that status he has limited leave to remain in the United Kingdom until 13 March 2015. But following the second age assessment by Solihull, the Secretary of State wrote on 22 December 2010 to the claimant, indicating that she proposed to cancel refugee status for the following reason:
“You made an asylum claim as an unaccompanied asylum-seeking child and your asylum decision was made on that basis. However, it has since been deemed by Social Services that you are over 18 years of age.”
We are not directly concerned with that question in these proceedings.
Whilst the claim was before the High Court, the claimant had a litigation friend in the person of the official solicitor. Following transfer, the question was raised whether the Tribunal had power to appoint a litigation friend, and if so who that should be. The Tribunal considered the matter on 28 July 2011 and decided that (i) the Tribunal has power to operate through a litigation friend; (ii) in the circumstances of this case it was appropriate for one to be appointed and (iii) it was appropriate to appoint James Whitehouse.
We heard evidence on 10 and 11 October 2011 and submissions on 12 October. In addition to the oral evidence we take into account the written evidence given at various stages.
The starting point is the decision of the Supreme Court in R (A) v Croydon LEC [2009] UKSC 8. Lady Hale JSC, who gave the first speech, set out the importance of a decision as to the age of a young person, particularly an unaccompanied asylum seeker. She then considered whether, in Judicial Review proceedings challenging an assessment by the Local Authority, the latter could adequately defend itself by showing that its decision had in every respect been made appropriately on the basis of the material available; or whether it was open to the claimant to show that, even if that were the case, it was factually wrong. After considering certain questions that she described as “evaluative questions”, she turned to the duty under s. 20 (1) of the Children Act 1989. That is expressed in the Act as follows:
“Every local authority shall provide accommodation for any child in need within their area”,
and by s.105 (1) of that Act,
““Child” means. a person under the age of 18”.
Lady Hale JSC said this:
“[27] But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision-makers
[32l However, as already explained, the Act does draw a distinction between a “child” and a “child in need” and even does so in terms which suggest that they are two different kinds of question. The word “child” is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.
[33] The final arguments raised against such a conclusion are of a practical kind. The only remedy available is judicial review and this is not well suited to the determination of disputed questions of fact. This is true but it can be so adapted if the need arises: see R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419. That the remedy is judicial review does not dictate the issue for the court to decide or the way in which it should do so, as the cases on jurisdictional fact illustrate. Clearly, as those cases also illustrate, the public authority, whether the children's services authority or the UK Border Agency, has to make its own determination in the first instance and it is only if this remains disputed that the court may have to intervene. But the better the quality of the initial decision-making, the less likely it is that the court will come to any different decision upon the evidence. If the other members of the court agree with my approach to the determination of age, it does not mean that all the other judgments involved in the decision whether or not to provide services to children or to other client groups must be subject to determination by the courts. They remain governed by conventional principles.
[46] …. The result is that if live issues remain about the age of a person seeking accommodation under section 20(1) of the 1989 Act, then the court will have to determine where the truth lies on the evidence available.”
Lord Hope DPSC, in a concurring judgment, offered the following observations amongst others on this issue:
“[51] It seems to me that the question whether or not a person is a child for the purposes of section 20 of the 1989 Act is a question of fact which must ultimately be decided by the court. There is no denying the difficulties that the social worker is likely to face in carrying out an assessment of the question whether an unaccompanied asylum seeker is or is not under the age of 18. Reliable documentary evidence is almost always lacking in such cases. So the process has to be one of assessment. This involves the application of judgment on a variety of factors, as Stanley Burnton J recognised in R (B) v Merton London Borough Council [2003] 4 All ER 280. para 37. But the question is not whether the person can properly be described as a child. Section 105(1) of he Act provides: “In this Act … ‘child’ means, subject to paragraph 16 of Schedule 1, a person under the age of 18.” The question is whether the person is, or is not, under the age of 18. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.
[53] If, as the respondents contend, and Ward LJ in the Court of Appeal [2009] PTSR 1011, para 25 accepted, the phrase “child in need” which sets the threshold for the provision of accommodation under section 20 must be taken as a whole, the judgment that must be made will fall ll1to the latter category. But the definition of “child” in section 105(1) applies to the Act as a whole, without qualification or exception. The question whether the child is “in need” is for the social worker to determine. But the question whether a person is or is not a child depends entirely upon the person's age, which is an objective fact. The scheme of the Act shows that it was not Parliament's intention to leave this matter to the judgment of the local authority.
[54] As for the practical consequences, the process begins with the carrying out of an assessment of the person's age by the social worker. Resort to the court will only be necessary in the event of a challenge to that assessment. So I do not accept that our conclusion will inevitably result in an inappropriate judicialisation of the process. It may, of course, require a judicial decision in some cases. But I would hope that that the fact that the final decision rests with the court will assist in reducing the number of challenges. The initial decision taker must appreciate that no margin of discretion is enjoyed by the local authority on this issue. But the issue is not to be determined by a consideration of issues of policy or by a view as to whether resort to a decision by the court in such cases in inappropriate. It depends entirely on the meaning of the statute. We must construe the Act as we find it. As I have said,...
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