R "R" v The London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 14 June 2011 |
| Neutral Citation | [2011] EWHC 1473 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 June 2011 |
| Docket Number | Case No: CO/9807/2008 |
[2011] EWHC 1473 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kenneth Parker
Case No: CO/9807/2008
Mr Azeem Suterwalla (instructed by Harter and Loveless) for the Claimant
Ms Catherine Rowlands (instructed by DMH Stallard) for the Defendant
Hearing dates: 24 and 25 May 2011
Introduction
In this claim for judicial review the Claimant, R, challenges the determination of his age by the Defendant, the London Borough of Croydon. R is an asylum seeker who is originally from Afghanistan. He claims that he is presently a child aged 17. R is unaware of his exact date of birth ("d.o.b") but his case is that he was born in the Afghan year 1372. The Afghan year runs from March to March. The year 1372 is equivalent to 1993/94 so R's case is that he was born on a date between 21 March 1993 and 20 March 1994. R submits that if he persuades the Court that he was born in 1372, fairness dictates that the mid-point of that year, 21 September 1993, should be adopted as R's nominal d.o.b., making him now (at the beginning of June 2011) about 17 years and 8 months. However, in an assessment of R's age carried out in May 2008, the Defendant assessed R to be over 18 years old. This decision was reaffirmed when the Defendant carried out a second assessment of R's age in December 2010. Therefore, on the Defendant's assessment R is currently 21 years old or over.
In the light of the decision of the Supreme Court in R (A) v LB Croydon [2009] UKSC 8 it is for the Court to determine R's age/d.o.b.
R's age is significant for at least two reasons:
i) If he is a child he is entitled to accommodation and support under the Children Act 1989 ("CA"). R is presently living in accommodation provided for adults by the United Kingdom Border Agency ("UKBA"). R does not receive any care or support, as he would do under the CA.
ii) If R's age were accepted and he had received accommodation pursuant to Section 20 CA for a period of 13 weeks or more before turning 18 (when the duty to provide accommodation under Section 20 CA ceases) he would acquire the status of a "former relevant child" (within the meaning of section 23C CA) and as a result would be owed further duties (such as assessments of needs, planning, a personal advisor, help with education and training) up until the age of 21.
Factual Background
R is from Maidan Wadark, Bisood Village in Afghanistan. He alleges that his entire immediate family was killed when he was three years old, following a land dispute between his father and a neighbour. R fled to Iran with his paternal uncle. He remained in Iran until the latter part of 2007, when he made his journey to the UK. R arrived in the UK by lorry on 21 May 2008. He met another Afghani who offered him accommodation and on the following day, 22 May 2008, took R to the offices of the UKBA in Croydon.
On 22 May 2008 R made an application for asylum. The UKBA's initial position was that R's claim was a "Third Country" case and therefore his asylum application would not be considered within the UK. In a letter dated 21 October 2010 the UKBA stated that it had withdrawn the Third Country Certificate and it would proceed to consider R's asylum claim in the UK. R's claim for asylum was subsequently considered and refused. He submitted an appeal which was to be heard on 15 May 2011. Following his application for asylum R was referred by the UKBA to the Defendant. The local authority decided to carry out an assessment of R's age, which it did on 27 May 2008. R claimed he was 15 years old but at the conclusion of the assessment he was assessed to be "over 18 years of age". He was referred to the UKBA for accommodation and since 27 May 2008 has been provided with accommodation and subsistence support through that agency.
In the light of the Defendant's decision, R asserts that he arranged for his uncle to send him his ID document issued in Afghanistan. A copy of that document was sent to the UKBA on 12 June 2008. The translation of the ID document states that R was 11 years of age in the year 1383 by the Afghan calendar.
The Afghan calendar is such that its years run from 21 March to 20 March by the Gregorian calendar. If the ID is accurate then R would have been born in the year 1372 (1383 less 11 years). R's case, therefore, is that he was born at some point between 21 March 1993 and 20 March 1994 although he remains unclear as to his exact d.o.b.
The Refugee Legal Centre, which formerly represented R, arranged for him to be assessed by Dr Diana Birch, a paediatrician well known in cases of age assessment. She assessed R on 26 June 2008 and produced a report dated the same day. Dr Birch concluded that:
"… taking all parameters into consideration it is likely that [R] is aged 15.1 to 17.1 years of age – Calculation of 16.1 years – ie 16 years 1 month. This estimate is consistent with his given age of 15 years and 5 months."
The Refugee Legal Centre sent that report to the UKBA.
The UKBA subsequently informed the Refugee Legal Centre that they did not accept Dr Birch's opinion and would stand by the Defendant's assessment of 27 May 2008.
This claim was brought on 15 October 2008 and on 3 November 2008 the Defendant filed its Acknowledgment of Service and Summary Grounds of Resistance.
Pending R (A) v LB Croydon [2009] UKSC 8, on the preliminary issue of how the Court was to approach age dispute challenges, and R (A) and (WK) v LB Croydon and Kent CC [2009] EWHC 939 Admin, which concerned the weight to be placed upon paediatric evidence when assessing age, the claim was effectively stayed.
On 14 May 2010 R was reassessed by Dr Birch. In her report she stated that:
"1. [R] has now been monitored on two occasions over the period of 23 months.
2. There have been changes in his examination indicating increased maturity and hence this supports the premise that he was not fully developed or a young adult when first seen.
3. The findings are consistent with the degree of change that one might expect in a boy of R's claimed age.
4. The first assessment indicated that his age fell within a range about a mid point of 16 years.
5. Chronologically 23 months have elapsed since he was first seen and during that time he has progressed an equivalent degree of maturity.
6. The findings of the two examinations are consistent with his claimed age (which would now be 17 years and 4 months)."
On 9 December 2010 the Defendant carried out a second age assessment of R. It again concluded that R was " an adult 18+".
The Relevant Guidance on Age Assessment
There is no statutory scheme for the assessment of age. Procedures have developed on an ad hoc basis with local authorities and the Home Office developing their own practices over recent years. These policies and practices have been the subject of judicial scrutiny on a number of occasions.
A template entitled "Practice Guidelines for Age Assessment of Young Unaccompanied Asylum Seekers" ("Practice Guidelines") is commonly used by local authorities when carrying out age assessments (this document was formulated by the London Boroughs of Croydon and Hillingdon). The Practice Guidelines materially state that:
"The task of the assessing worker is to assess from a holistic perspective, and in the light of the available information, to be able to make an informed judgement that the person is probably within a certain age parameter. It is a process of professional judgment.
Age assessments are sometimes undertaken at the port of entry and the asylum screening unit where a decision is required in a short period of time, or sometimes at a later stage. In circumstances of age uncertainty, the benefit of doubt should always be the standard practice. When practical, two assessing workers is beneficial. Age assessments are also undertaken following the acceptance of a referral to social services to ascertain if the person is entitled to a service as a child. However, in some Local Authorities age assessments are undertaken on presentation when the stated age is disputed. Here the assessment can sometimes be undertaken over a period of time, and involve other professionals, for example residential social work staff, foster carers, doctors, panel advisors, teachers and other young people. It is very important to ensure that the young person understands the role of the assessing worker, and comprehends the interpreter. Attention should also be paid to the level of tiredness, trauma, bewilderment and anxiety that may be present for the young person. The ethnicity, culture, and customs of the person being assessed must be a key focus throughout the assessment.
It is also important to be mindful of the "coaching" that the asylum seeker may have had prior to arrival, in how to behave and what to say. Having clarified the role of the social services, it is important to engage with the person and establish as much rapport as the circumstances will allow. This process is sometimes known as "joining". The assessing worker needs to acknowledge with the young person that they will have had to already answer many questions, and that it may be difficult and distressing to answer some of the questions.
In utilising the assessment framework, the practitioner should ask open-ended, non — leading questions. It is not expected that the form should be completed by systematically going through each component, but rather by formulating the interview in a semi structured discussion gathering information at different stages. The use of circular questioning is a useful method, as it is less obvious to the person being assessed that the questions relate directly to age, and hence...
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