T.l. No 2 (ap) For Judicial Review Of An Age Assessment By Angus Council That The Petitioner Is Over Eighteen Years Of Age
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2011] CSOH 196 |
| Docket Number | P268/11 |
| Date | 25 November 2011 |
| Published date | 25 November 2011 |
| Court | Court of Session |
| Year | 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 196 | |
| P268/11 | OPINION OF LORD STEWART in the Petition of TL [Assisted Person] No 2 Petitioner; for Judicial Review of an Age Assessment by Angus Council dated 24 January 2011 that the Petitioner is over eighteen years of age ________________ |
First Respondents: D B Ross, Advocate; Simpson & Marwick, solicitors for Angus Council
Second Respondents: Williamson, Advocate; Solicitor for the City of Edinburgh Council, solicitors for Glasgow City Council
25 November 2011
[1] How should the Court of Session deal with age assessment cases? Should the Court deal with age assessments at all? Should age assessment cases be transferred to the Tribunal system? These are some of the issues canvassed in the present proceedings about a North African who has arrived in Scotland claiming asylum and telling officials he is under 18 years of age.
Background
[2] On 29 December 2010 the master of a vessel lately arrived at Montrose from Morocco handed the petitioner to the UK Border Agency. The petitioner was said to be a stowaway. The petitioner landed without papers. He claimed at some stage to be a 15 year old Moroccan.
[3] The UK Border Agency requested the local authority, Angus Council, first respondents in the present process, to assist in accommodating the petitioner. The first respondents accommodated the petitioner in the Young People's Unit, Kinnaird Street, Arbroath.
[4] Ms Rinku Sharma, a social worker employed by the first respondents, undertook an assessment of the petitioner's age. The assessment is reported on a form headed "Age Assessment of Asylum Seeking Child" [Production No 6/1]. The assessment is dated 24 January 2011. The assessment is substantially based on interviews with the petitioner, through a Spanish-speaking interpreter, on 30 December 2010 and 7 January 2011.
[5] The assessment concludes that the petitioner is "18+". The "Age Assessment Form" states among other things: "Self care skills are those usually associated with a young adult and are performed by you without any form of prompting being required" [Production No 6/1].
[6] In oral submissions counsel for the petitioner told me that, in February 2011, precise date unspecified, the petitioner was transferred to the UK Border Agency Immigration Detention Centre at Dungavel, Lanarkshire. He was bailed from detention and is currently accommodated in self-catering accommodation provided by the National Asylum Support Service in Glasgow [NASS].
[7] By Reasons for Refusal Letter dated 9 March 2011 the UK Border Agency rejected the petitioner's applications for asylum, to be recognised as a refugee and for a grant of humanitarian protection and refused leave to enter or remain in the United Kingdom. The reasons included rejection of the petitioner's claim that he is a child, i.e. under 18 years of age, for the purposes of Immigration Rules HC 95, paragraph 349 [sic], having regard to inter alia the terms of the age assessment by the first respondents.
[8] There have been suggestions that the petitioner is not well-settled in NASS accommodation. He has been charged on summary complaint with a breach of the peace alleged to have been committed on 29 April 2011 at, I think, the common close of the block where he was then residing in Glasgow [Production No 7/1]. For further background see my Opinion issued in connection with the petitioner's application for interim orders [TL for Judicial Review of an Age Assessment [2011] CSOH 98 (7 June 2011)].
Judicial Review, remedies sought and decision
[9] The petitioner has invoked, or purported to invoke the supervisory jurisdiction of the Court of Session by an application for judicial review. Following amendment the remedies sought include (1) reduction of the age assessment decision made by the first respondents on 24 January 2011 on the ground that the decision‑making process was flawed; (2) reduction of said age assessment decision on the ground that the decision is factually wrong; (3) declarator that the petitioner was born on 7 October 1995; and (4) declarator that the petitioner's date of birth is 7 October 1995 for the purposes of the exercise by Glasgow City Council, second respondents, of their functions under the Children (Scotland) Act 1995, Chapter 1, Part II ("Support for Children and their Families").
[10] This sort of application has come to be known in England & Wales as an "age assessment judicial review". There are two others in the Court of Session that I know of. The two other applications involve Nigerians who are, or who claim to be brothers brought to the United Kingdom on visitor visas by their father and abandoned. Those applications have been joined for the purpose of a proof of age, allowed of consent by the Outer House Administrative Judge. I presided at the proof, which is now concluded but not yet advised after eight days of evidence and submissions. One foster parent, one Border Agency higher executive officer, one refugee support worker, one independent social worker the two claimants, two local authority social work staff and three medical professional have testified. There is also a large amount of affidavit evidence.
[11] In the present case I have had the opportunity to direct that before proof of age can be considered parties should address me on the question of competency, the question of transfer to the Upper Tribunal and the question of reduction on the ground of alleged flaws in the first respondents' decision-making. Submissions on these matters were made at a first hearing and a continued first hearing on 24 June and 13 July 2011.
[12] Having made avizandum I have decided that the application cannot be transferred to the Upper Tribunal; that insofar as it seeks reduction on the basis of factual error and declarators of a date of birth, the application is incompetent; and that insofar as it seeks reduction of the first respondents' age assessment on the basis of flawed decision‑making, the application is unfounded. My decision involves that the court should not hear witness evidence.
Age Assessment Judicial Reviews
[13] As at 12 January 2011 there were 64 age assessment judicial reviews pending in England & Wales. The phenomenon has been described by Mr Justice Keith [R (Y) v Hillingdon LBC [2011] EWHC 1477 (Admin) (15 June 2011) at § 1]:
"There is a new growth industry in the Administrative Court. It relates to those cases in which the court is being asked to assess the age of youngsters claiming to be children - almost all of them asylum-seekers from overseas arriving in this country as unaccompanied minors - who look to the local authority for accommodation and support. In the past, it was thought that it was the local authority which had to decide the youngster's age, subject only to judicial review on the usual principles of fairness and rationality. But the Supreme Court decided in R (on the application of A) v Croydon London Borough Council [2009] 1 WLR 2557 that in cases of dispute it is for the court to assess the youngster's age..."
In this context "children" are persons under the age of 18 years [United Nations Convention on the Rights of the Child art. 1; Borders, Citizenship and Immigration Act 2009 s. 55; Children Act 1989 s.105 (1); Children (Scotland) Act 1995 ss. 15 (1) and 93 (2) (a)].
[14] Mr Justice Hickinbottom has given a helpful outline of the legislative and administrative benefits for asylum seekers in England & Wales of being "children" [R (PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin) (4 August 2010)]:
"The Relevance of Age to Asylum Seekers
[...]
6. 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.
7. 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').
8. 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...
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Mohammed Ismael Suliman Abdullah For Judicial Review
...found that a person’s age clearly fell into the category of issues which could be determined by declarator, as had L v Angus Council [2011] CSOH 196, 2012 SLT 304 at [70]. [41] In R(A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557 the Supreme Court at [1] to [2] defined ......