R (A) v Croydon Social Services, London Borough of Croydon

JurisdictionEngland & Wales
JudgeMr Justice COLLINS
Judgment Date08 May 2009
Neutral Citation[2009] EWHC 939 (Admin)
Docket NumberCase No: CO/2334/2008
CourtQueen's Bench Division (Administrative Court)
Date08 May 2009
Between
(1) A
Claimant
and
London Borough of Croydon
Defendant
and
Secretary of State for the Home Department
Interested Party
(2) WK
Claimant
and
Secretary of State for the Home Department First
Defendant
and
Kent County Council Second
Defendant

[2009] EWHC 939 (Admin)

Before: Mr Justice Collins

Case No: CO/2334/2008

CO/9557/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(1) Mr Ian Wise & Mr Azeem Suterwalla (instructed by Harter & Loveless) for the First Claimant

Mr Bryan McGuire & Ms Peggy Etiebet (instructed by the Solicitor to the Council) for the Defendant

Mr James Strachan & Ms Deok Joo Rhee (instructed by the Treasury Solicitor) for the Interested Party

(2) Mr Gavin Millar Q.C. & Mr Graham Denholm (instructed by Bennett Wilkins) for the Second Claimant

For the First Defendant; as in (1) for the Interested Party

Mr Charles Béar Q.C. & Mr Jon Holbrook (instructed by Kent County Council) for the Second Defendant

Hearing dates: 10 – 13 March 2009

Mr Justice COLLINS

Mr Justice COLLINS:

1

A number of individuals arrive in this country seeking asylum and claiming to be under 18. Most are males and have entered or have sought to enter by clandestine means. They are referred to as Unaccompanied Asylum Seeking Children (UASC). That description includes those who assert that they are under 18. Many who travel from countries where they allege they are being persecuted such as Afghanistan or Iraq will have been assisted by agents and in any event the advantages of persuading the authorities that they are under 18 are well-known. Those advantages include the automatic grant of leave to remain until aged 18 coupled with the inability to return to Member States of the European Union if the individual would otherwise be returnable in accordance with the Dublin Regulations. In addition, as children they will usually be entitled to the care and accommodation which a local authority is obliged to provide to children in need. Thus the assessment of their age is most important.

2

These two claims come before me in order to enable guidance to be given on the proper approach to be applied by the Secretary of State or local authorities who, having made their assessment of age, are presented with a report from a paediatrician whose opinion is that their assessment was wrong. For obvious reasons, this arises when the assessment made was that the individual was over 18. The opinion obtained from the paediatrician asserts that in the doctor's view he (or in rare instances she) is under 18. I was told that there were more than 70 claims for judicial review challenging the refusal of the relevant authority to follow the paediatrician's opinion or at least to accept that it raises a doubt and the benefit of that doubt should be given to the claimant in question. I have had full argument based on what counsel and I are satisfied is all relevant material. Thus this judgment should be treated as determining the correct approach for the court to adopt in age assessment cases. Naturally, the individual circumstances of a particular case may show, at least arguably, that the assessment was in all the circumstances flawed as a matter of law. But, for reasons which will become apparent, that is likely to turn on the reasons given or the procedures adopted by the decision maker rather than on the subsequent opinion of a paediatrician.

3

A and a number of other claimants asserted that the absence of any right to make representations on the facts or any appeal breached Article 6 of the ECHR. It was said, as part of the grounds, that the court could not comply with Article 6 unless it treated the assessment of age as a precedent fact which it had to determine. On 14 April 2008 Holman J directed that A and a case entitled M v Lambeth (CO/2130/2007) should be heard as lead cases to determine the Article 6 ground as a preliminary issue. On 20 June 2008, Bennett J decided the issue against the claimants: see [2008] 2 FLR 1026. There was no breach of Article 6 and the court was not required to treat the issue as precedent fact. Bennett J was asked to consider the evidential value of the experts' reports but declined to do so. Holman J had said that the trial judge could, if he considered it proper to do so, decide an issue raised by Lambeth, formulated thus:—

“For the purpose of assessing whether a child is a child, is paediatric evidence of the sort produced by Dr Michie and/or Dr Birch in these cases scientifically ill-founded and of no evidential value?”

For what seems to me to have been entirely correct reasons Bennett J decided that the issue was not appropriate for a preliminary hearing which focused on procedure rather than substance and that in any event it could not properly be determined without considering the full factual matrix of each case.

4

Bennett J gave leave to appeal. On 18 December 2008 the Court of Appeal dismissed the claimants' appeals ( 2008 EWCA Civ 1445). I gather that the House of Lords has accepted the petition for leave to appeal and the matter has been listed for 20 – 23 July 2009. However, that is no reason not to decide the claims before me, since the law to be applied is that set down by the decision of the Court of Appeal.

5

On 27 January 2009 Holman J decided that A and WK should be heard together as lead cases to determine all the issues and that other age assessment claims should await that hearing. WK took over from M because Lambeth decided that it did not wish that case to be pursued as a lead case. Mr Béar Q.C. appeared for Lambeth in M and so his approach was the same in WK as it had been in M. Indeed, important evidence from a Dr Stern, an eminent paediatrician, which was obtained by Lambeth and relied on in M, has been put before me and further evidence from Dr Stern commenting on that of Dr Birch, the paediatrician whose report has been put before the defendants in both A and WK and whose further evidence justifying her methodology and conclusions has been placed before me.

6

Unfortunately, although it had been regarded as desirable that age assessment claims should not be determined until the Court of Appeal's decision was known, in error one such claim came before Mr Stephen Morris Q.C., sitting as a Deputy Judge of this court, in November 2008. His decision was given on 28 November 2008: see R(A) v London Borough of Croydon [2008] EWHC 2921 (Admin). There were in that case two reports presented on behalf of the claimant, one from Dr Michie and a later one from Dr Birch. But Mr Morris did not have the advantage of the full material which has been put before me, and in particular the cogent criticism of the methodology and the value of the reports of both Dr Michie and Dr Birch. As will become apparent, I do not accept that the approach adopted by Mr Morris was correct. This is no criticism of him since he had to decide the case on the material put before him and he was inevitably and understandably influenced by the knowledge that in earlier cases judges of this court had been persuaded to overturn decisions made by the Secretary of State or local authorities in reliance on reports from Dr Michie or Dr Birch.

7

Before coming to the details of these cases, it is, I think, desirable to identify some general considerations. While I recognise that age determination impacts on all aspects of the asylum process and has serious consequences for the individual in question, the reality is that there are no reliable means whereby an exact conclusion can be reached. Furthermore, the decision which has to be made by whichever person, be he an immigration officer or a local government officer, has to deal with a particular UASC. The Secretary of State has very sensibly recognised that immigration officers are unable to rely on more than visual impression and whatever emerges from an interview and it would be entirely impractical to expect them to go into further detail. That would take time and a preliminary decision will be needed speedily. I shall refer to the guidance given in these cases in some detail, but essentially in cases where there is a belief that the UASC is over 18 but the immigration officer cannot feel sure about it he is to be referred to the relevant local authority which will then make the assessment. Unless satisfied that the local authority's assessment has failed to take account of some material evidence (for example, a birth certificate which is accepted to be authentic and reliable) or some new material which identifies a flaw in the determination reached has come to light, the Secretary of State will rely on that assessment. Since local authorities have to consider whether a person seeking to obtain assistance under the Children Act is indeed a child, they have or should have developed an expertise in this area. The problem arises regularly in the case of UASCs and a relatively small number of authorities are most frequently involved. Asylum seekers will apply to the Home Office in Croydon. Kent is involved because many unlawful entrants come through Dover or one of the Channel Ports in Kent. Hillingdon covers Heathrow Airport and Cambridgeshire has the centre at Oakington within the County. Other authorities may be involved because UASCs may apply after entry having found somewhere to stay with relatives or friends or they may have been dispersed to various parts of the country before the question of age has been considered. Thus Kent and Croydon in particular have developed an expertise, and the use by the Secretary of State of that expertise makes much sense.

8

Parliament has made clear that the decision...

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