R (PM) v Hertfordshire County Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HICKINBOTTOM |
| Judgment Date | 04 August 2010 |
| Neutral Citation | [2010] EWHC 2056 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5901/2010 |
| Date | 04 August 2010 |
[2010] EWHC 2056 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Hon Mr Justice Hickinbottom
Case No: CO/5901/2010
Christopher Buttler (instructed by Steel & Shamash) for the Claimant
Holly Stout (instructed by Kathryn Pettitt, Chief Legal Officer, Hertfordshire County Council) for the Defendant
Hearing date: 20 July 2010
MR JUSTICE HICKINBOTTOM:
Introduction
On 14 April 2010, following a finding of the First-tier Tribunal (Immigration & Asylum Chamber) (“the FTT”) in the course of an asylum appeal that the Defendant was over 18 years old, the Defendant local authority (“the Council”) withdrew the accommodation and other support it had made available to the Claimant, PM, as a child, since November 2008. In this claim, with the permission of Michael Supperstone QC, sitting then as a Deputy High Court Judge, the Claimant challenges that decision.
The claim raises the important issue of how local authorities should properly address an age finding of the FTT (or its predecessor, the Asylum & Immigration Tribunal, “the AIT”), and in particular whether authorities are bound by such findings.
The Relevance of Age to Asylum Seekers
To many people, age matters. As birthdays are passed, one becomes entitled or disentitled to particular benefits, and subject to or relieved from particular burdens.
Age certainly matters to young people who seek refuge in this country, often in a state of confusion, and often traumatised by the events that have caused them to flee their own land and the tortuous journey they have made from their land to this. It matters because, although their confusion and trauma may not be significantly different if they are just under or just over 18 years of age, in the United Kingdom, the entitlements of a child are very different from those of an adult. This case focuses upon two particular differences.
First, there is a significant difference in the accommodation and other benefits to which an adult and a child asylum seeker are respectively entitled.
Adult asylum seekers are entitled to support from central government. Under section 4 and Part 6 of the Immigration & Asylum Act 1999, the Secretary of State may provide an adult asylum seeker with support, including accommodation and essential living needs. In terms of accommodation, in practice asylum seekers are dispersed throughout the United Kingdom, to accommodation which has been described as “often… less than adequate” (Macdonald's Immigration Law & Practice, 7th Edition (2008), paragraph 13.99). Asylum support is provided to those who are destitute or likely to become destitute within a limited time under a scheme administered by the National Asylum Support Service (“NASS”), at rates set out in the Asylum Support Regulations 2000 (SI 2000 No 704) as amended by the Asylum Support (Amendment) Regulations 2010 (SI 2010 No 784). The current rate for a single person aged 18–24 is £35.52 per week.
Support is provided to child asylum seekers through local authorities, under statutory provisions imposing duties on those authorities in respect of any child in their area, notably Part 3 of the Children Act 1989 (“the 1989 Act”).
Section 17 of the 1989 Act imposes a general duty upon a local authority to safeguard and promote the welfare of children within their area who are in need. By section 20, a local authority is required to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of (a) there being no person who has parental responsibility for him; or (b) his being lost or having been abandoned: or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care; which is likely to include most if not all unaccompanied minor asylum seekers. Section 23 imposes further obligations in respect of accommodation and maintenance of children being looked after by a local authority. By section 105(1), “'child' means… a person under the age of eighteen”. “Child in need” is defined in section 17(1)) in terms of health and development needs: which, again, is likely to include most unaccompanied minor asylum seekers.
In addition to the 1989 Act obligations, where a child is looked after by a local authority, the parental obligation under section 7 of the Education Act 1996 to ensure a child is educated effectively falls upon that authority, that duty being enforced by Article 2 of the First Protocol of the European Convention on Human Rights.
The obligations of local authorities to children in their care do not cease when the young person reaches the age of 18. Section 24 of the 1989 Act always required a local authority to “advise and befriend”, and a power to “give assistance” to those under 21 who that authority had, until their majority, looked after. The Children (Leaving Care) Act 2000 imposes more duties upon authorities in respect of such young people, some of the new duties extending beyond childhood to the age of 21, or even 24 if a young person is pursuing a particular planned educational course. These duties of local authorities to young people beyond the age of 18 are known as the “leaving care” obligations.
Second, although age in itself cannot be determinative of a person's refugee status, there is a significant difference in the way in which the Secretary of State exercises her immigration powers in relation to adult and child asylum seekers. Children being inherently more vulnerable than adults, she has historically adopted different, more favourable policies in relation to asylum seekers who are under 18; and, since 2 November 2009, she has been under a duty to ensure that her functions exercised through the United Kingdom Border Agency (“the UKBA”) are discharged having regard to the need to safeguard and promote the welfare of children (section 55 of the Borders, Citizen and Immigration Act 2009). I was referred to the UKBA's published guidance to their own staff, “Processing an Asylum Claim Application from a Child”, a substantial document which seeks to give practical effect to that duty.
By way of example of the differences in policy, currently, as I understand it, the Secretary of State will not detain a child under her administrative immigration powers, save in exceptional circumstances and then only overnight; and will not remove a failed child asylum seeker for three years or until he reaches the age of 17 1/2 years, whichever is the sooner, unless there are adequate arrangements to receive and look after him in his country of origin on his return.
Therefore, the age of an asylum seeker is important both for the determination of who has an obligation to accommodate and support that person, and the level of that support; and for the exercise of the Secretary of State's immigration powers.
Facts
The Claimant was arrested on 24 November 2008, as part of a group of ten suspected illegal immigrants, as he was getting off the back of a lorry in Hemel Hempstead.
He was born in Kabul, and is an Afghan national. He left Afghanistan on 9 April 2008 on a long and hard journey that took him through various countries including Pakistan, Greece and France, to arrive in the United Kingdom the day before his arrest. He claimed asylum, on the basis that his family were involved in a feud with his cousins and, if he were to return to Afghanistan, he faced a real risk of suffering serious harm or death at their hands.
He was unable to give an exact date of birth, but claimed to be 14 years of age. The Council's Children's Asylum and Refugee Team gave him a brief initial assessment, from which they considered that it was more likely than not that he was a child, and he was duly placed in accommodation with support. On the basis of his assertion as to age, he was initially given a default date of birth of 15 November 1994.
A formal age assessment was completed by 12 December 2008, the outcome of which was that it was not accepted he was as young as 14 years old. It was thought that he was in the range of 16–19 years of age; and he was given the date of birth of 15 November 1991, meaning that he was just 17 years of age. That age assessment was not accepted by the Claimant who, at his asylum interview on 17 December, maintained that he was 14. A date of birth of 15 November 1994 was consequently recorded, but not accepted, by the UKBA.
In view of the continued issue about the Claimant's age, with the agreement of both the Claimant and his solicitor, a referral was made to King's College Hospital, London for a dental age assessment, which was conducted on 3 June 2009, the result being received by the Council on 1 July 2009. That assessment concluded, on the basis of the mature development of his teeth, that his age was 19 years 8 months.
The Claimant's asylum claim was refused on 24 July 2009. The decision letter indicated that the Secretary of State considered that the Claimant had fabricated his age in order to strengthen his claim for asylum, on this basis (paragraph 11):
“It has been noted that you have had a dental age assessment that concludes you are 19 years and 8 months old, making your date of birth 15 November 1989. This has been accepted by social services. It is therefore not accepted that your date of birth is as claimed and it is asserted that your actual age is as...
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