Bethan Davies sets out key features of a successful defence to legal challenges over age assessment decisions.
The task of assessing the age of purported unaccompanied asylum-seeking children (‘UASC’) is notoriously vexed, and yet is one with which local authorities must continuously grapple in order to ensure the provision of safe and appropriate service to those in their care. The public law decisions that are made determining age are frequently litigated by claimant solicitors under legal aid.
Invicta Law regularly advises local authorities in relation to UASC and the myriad challenges that can arise in relation to their care. One of its main clients is Kent County Council (KCC); owing to the large number of asylum seekers arriving at the port of Dover, it is responsible for assessing a large proportion of purported UASC.
Reaching an accurate determination of age is important in itself as a matter of legal propriety, but also carries significant ongoing implications. Notably, an unaccompanied child is by definition deemed to be ‘in need’ for the purposes of section 17 of the Children Act 1989, giving rise to a s20 duty on the part of the relevant local authority to provide appropriate care. It is therefore of paramount importance that only those who are in fact children be treated as such, so as to appropriately safeguard other children in residential and educational settings.
Due to the gravity of the decision and magnitude of its consequences, a number of safeguards have been laid down in case law to ensure procedural fairness. These include the fact that the assessment should take into account the UASC’s medical, family, and social history (R (B) v Merton  EWHC 1689 (Admin)); that the assessment must be carried out by two appropriately trained social workers (ibid); and that the UASC must have the opportunity to respond to any adverse points made against them (R(FZ) v London Borough Council of Croydon  EWCA Civ 59). It is necessary for those social workers conducting age assessments to have undergone the appropriate training in what constitutes a fair and legally compliant assessment, and to have access to excellent legal advice when required.
Should the UASC dispute the outcome of the local authority’s age assessment, it is open to them to bring a challenge to this decision by way of judicial review. Their age thereby becomes a matter for the court to determine on the balance of probabilities (R(A) v Croydon LBC, UKSC 8 ).
Over the course of the last year, Invicta Law has successfully defended a significant number of judicial review challenges against age assessment decisions brought by UASC. The majority of these have either been determined or settled in favour of the local authority’s age assessment. There remain several awaiting final determination, and fresh claims continue to be filed. KCC has borne the brunt of such challenges, with 730 UASC arriving into Dover in 2021 and over 540 already in 2022.
In one case defended by Invicta Law, LYB v KCC (JR/491/2021), the applicant had been assessed by KCC as being 20 years old, as compared to his claimed age of 16. He had left his native Sudan in 2018, arriving in the UK in 2020 without any identity documents to support his claimed age, based on a date of birth reportedly told to him by his father. The judge’s reasoning in rejecting LYB’s challenge to the age assessment outcome included the fact that i) third-party evidence in favour of LYB’s age could not be substantiated; ii) A’s own account was internally inconsistent, thereby bringing into question his credibility; and iii) evidence from LYB’s social media profiles called into question the veracity of his reported timeline.
Similarly, in AB v KCC, (JR/1947/2020), the applicant claimed to be 15 years old upon his arrival to the UK, with his year of birth being 2004 but was instead assessed by KCC as having been over 20. He had previously claimed asylum in Austria, telling authorities there that he had been born in 1999. It was found by the court in dismissing AB’s claimed age that he had been coached on what to say, gave inconsistent accounts as to his knowledge of his own age, and that he was ‘assertive and unchildlike’ in his demeanour.
In rejecting several such age assessment challenges in favour of KCC’s age decision, the courts have relied on a variety of arguments including but not limited to:
- That fingerprint evidence supported a finding that the applicant had been registered as an adult in other European countries (YMA v KCC, CO/1505/2020);
- That the applicant claimed to German Authorities that she was 19 years old, and was accepted as such, whereas at that time she would have been just 12 on her current claimed age (MA v KCC, JR/1053/2021);
- That documentary evidence presented by the applicant was unreliable, raising doubts as to the truthfulness of his account (MYR v KCC, JR/812/2021);
- That differing accounts were given by the applicant in the age assessment and during cross examination respectively (MA v KCC, JR/1053/2021); and
- That the local authority was entitled to rely on third party opinions and determine the appropriate weight to give them (MM v KCC, CO/4214/2021).
Moreover, the decisions in several of these cases were attributed to the high standard of the age assessment itself, reinforcing the proposition that the starting point for the court is the age assessment itself and that the quality of the initial decision making is key in assisting the court to make an accurate conclusion as to age.
Bethan Davies is a Trainee Solicitor at Invicta Law.
KCC was represented by lawyers within the Asylum team at Invicta Law, a specialist public sector law firm based in the south east of England.