The Queen (on the application of Birmingham City Council) v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 15 July 2021 |
| Neutral Citation | [2021] EWHC 1990 (Admin) |
| Docket Number | Case No: CO/5492/2017 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1990 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
THE HONOURABLE Mr Justice Morris
Case No: CO/5492/2017
and
and
Christine Cooper (instructed by Birmingham City Council Legal Services) for the Claimant
Joshua Swirsky (instructed by London Borough of Croydon Legal Services) for the Defendant
Antonia Benfield (instructed by Bhatia Best, Solicitors) for the First Interested Party
The Second Interested Party did not appear
Hearing dates: 4 and 5 February 2021
Approved Judgment
Introduction
By these proceedings for judicial review, the Court is asked to determine the extent of the duties owed by the defendant, the London Borough of Croydon (“Croydon”) to an unaccompanied asylum seeking child, YG, and the consequences that flow from any failure to fulfil those duties.
The claim was commenced by YG on 24 November 2017. However pursuant to an order of Swift J made on 8 April 2019, Birmingham City Council (“Birmingham”) was substituted as the claimant, in place of YG. YG became an interested party. The second interested party is the Secretary of State for the Home Department (“the Secretary of State” or “the Home Office”).
YG claimed asylum as a child, but was treated by the Secretary of State as an adult because she considered her to be over 18 years old. At that point YG was placed in adult accommodation, first in Southwark, and then in Birmingham. YG then sought appropriate accommodation and support under the Children Act 1989 (“CA 1989”). Birmingham agreed to accommodate her on a without prejudice basis, but maintained that Croydon was the responsible authority. Once Birmingham was substituted as the claimant, the essential dispute became one between the two local authorities.
The Facts
YG is an Eritrean national. She is now aged 20. She entered the UK on 26 October 2017 as an unaccompanied asylum seeker. On the same day, she presented herself at the Home Office at Lunar House in Croydon for the purpose of claiming asylum. She claimed that her date of birth was 10 October 2000 and thus that she was 17 years old.
At the time there was in operation a joint working protocol (“the Protocol”) between Croydon and the UK Visas and Immigration Department of the Home Office (“UKVI”). Under the Protocol, a duty social worker from Croydon is present in the Home Office asylum screening unit at Lunar House during normal working hours. On 26 October 2017, the duty social worker from Croydon was Mr Paul James.
The asylum screening interview: 26 October 2017
On that day, the Home Office conducted an asylum screening interview with the duty social worker from Croydon in attendance, acting as the “Appropriate Adult” for YG. The Home Office caseworker reached a decision as to YG's age on the basis of her physical appearance and demeanour. The Home Office has subsequently asserted that the duty social worker agreed with that age assessment.
The IS.97M letter
On the same day the Home Office issued a formal letter on standard form IS.97M. It was signed by a chief immigration officer. The IS.97M letter has the box ticked which states “ Your physical appearance/demeanour very strongly suggests that you are significantly over 18 years, of age.” ( emphasis added). However the letter starts as follows: “ Dear Miss [YG] Eritrea 10 October 1999”, thus suggesting that YG's date of birth was 10 October 1999. (This is not stated to be an estimated or assessed date of birth). That date of birth made her just 18 years and 16 days old at that time. The inconsistency between these two statements of her age, and whether Mr James was aware of it, are at the heart of the dispute in this case.
The IS.97M letter goes on to state:
“In the absence of credible documentary evidence to the contrary, the Secretary of State does not accept that you are a child and from this point therefore you will be treated as an adult applicant for asylum….
The Home Office's determination of your age does not prevent you from approaching a local authority's Children's Services department with a view to them undertaking their own assessment of your age. If the Children's Services assessment concludes that you are a child and the Home Office is provided with sufficient evidence of this, the Home Office's determination of your age will be reviewed.”
( emphasis added)
The Home Office processed YG's asylum claim on the basis that she was an adult. Initially she was moved to accommodation within the London Borough of Southwark where she remained for a number of days. She was then moved on to accommodation at 3 Stone Road in Birmingham. Croydon did not take any action itself in relation to YG. Mr James has no recollection of YG.
Events between 22 and 30 November 2017
November 2017
At 4:44pm on 22 November 2017 Bhatia Best, acting for YG, wrote to Birmingham seeking agreement that YG be treated as a putative child and provided with interim support pending a review of her entitlement to services under the CA 1989. Birmingham was given until 5pm the next day to confirm that they would take those steps.
November 2017
At 9:33am on 23 November 2017 Mr Bradley of Birmingham Children's Trust (acting on behalf of Birmingham) sent an email to the Home Office asking whether YG's age had been assessed by a local authority. At 10:52am the Home Office replied to Mr Bradley, in the following terms:
“Notes on our system suggest that this applicant is a disputed minor. She was issued with an IS.97M we currently have her on our system with a DOB of 10/10/1999. This applicant was fingerprinted when she was encountered in Italy on 07/04/2017. She claimed asylum in its Italy 17/04/2017. It looked like YG claimed DOB was 10/10/2000. This applicant was spoken to in the presence of Croydon Social Services duty social worker who agreed that she was significantly over the age of 18.” ( emphasis added)
At 1:18pm Birmingham responded to Bhatia Best stating that “ Birmingham has information that your client [YG] has been age assessed by Croydon to be an adult” and on that basis Birmingham did not accept responsibility for YG. Birmingham suggested that YG be referred back to Croydon to challenge the age assessment decision.
At 1:40pm Birmingham sent an email to Croydon providing YG's name and other references and requested confirmation of whether Croydon had undertaken an age assessment and a copy of any such assessment. At 2:09pm Bhatia Best replied to Birmingham stating that YG's age had only been assessed by the Home Office and that Croydon had not conducted an assessment. At 5:24pm Birmingham emailed the Third Country Unit (“TCU”) at the Home Office, requesting details of the social worker who had been present at YG's screening interview.
November 2017
At 9am Mr Luke of Bhatia Best sent an email to Croydon asking whether it had conducted an age assessment. He did not think it had done so, but another local authority was saying that Croydon had completed an age assessment. Rather Mr Luke thought that they were referring to a Home Office assessment and not an age assessment, because YG was only in Croydon's area for attending the Home Office. He suggested that Croydon might be made an interested party in YG's claim for judicial review. At 12:20pm Birmingham called Croydon on the telephone to request a response to previous emails. Croydon said that YG was not known on their database and that they were unable to provide a contact for the asylum team within children's services. At 1:07pm Birmingham decided internally that it would provide YG with accommodation on a temporary basis, pending further enquiries with Croydon.
At 1:46pm Croydon responded to Birmingham stating that it had “no trace” of YG on their system. At 1:48pm Birmingham replied, asking how it was possible that there was no record of YG when the Home Office had confirmed the involvement of a duty social worker. After further emails, Croydon gave Birmingham a telephone number for the “duty UASC” at Croydon.
During the afternoon YG was accommodated in supported accommodation suitable for 16 to 17-year-olds. By email at 3:47pm Croydon informed Bhatia Best that YG “has not been Age Assessed by Croydon”.
On that date YG's claim for judicial review against Birmingham was issued, together with an application for interim relief on an urgent basis. At that stage Croydon was not named as an interested party. Later that day Mrs Justice Yip made an order requiring Birmingham to respond to the claim for interim relief by 4pm on 28 November 2017.
November 2017
Mr Bradley of Birmingham Children's Trust telephoned the “duty UASC” at Croydon and was given further information about the role of the duty social worker at the Asylum Screening Unit. Then in an email to Mr Absolon, the unit manager at Croydon, Mr Bradley explained that in that telephone call, he had been told that the duty social worker was asked for an opinion on age, but the decision was that of the Home Office and no records were kept. He had been told that “ Croydon are not accountable as no “referral” was made to Croydon by the Home Office”. Mr Bradley argued, however, that the fact that the social worker is aware of the situation is essentially “a referral to the social worker”.
At 10:01 am, Mr Absolon at Croydon replied to Birmingham stating:
“… Where the Home Office believe someone to be a young person they are referred to us and we accommodate and age assess where relevant.
There will be times when people present at the Children's Screening Unit who are adults, and the social worker would have a...
To continue reading
Request your trial