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Abbreviated age assessment of Afghan national carried out by council was unlawful, High Court rules

A council’s assessment of an Afghan national’s age, based on his physical appearance and demeanour, was unlawful because the abbreviated assessment undertaken failed to adequately acknowledge the potential margin for error and give him the corresponding benefit of the doubt, a High Court judge has found.

The claimant in AB v Kent County Council [2020] EWHC 109 (Admin) had arrived in the UK, in the back of a lorry, at the Port of Dover on 26 July 2019 at 4.20am. He claimed asylum and said he was 15 years old.

Later that day social workers from Kent County Council concluded that AB presented physically and in his demeanour as aged between 20-25 years. The council therefore treated him as an adult and declined to provide him with accommodation and other assistance pursuant to its duties under the Children Act 1989.

In turn, in reliance on the council's assessment, the Home Office treated him as an adult and arrested him as liable for detention at 17.15pm the same day, before releasing him on bail.

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AB, by his litigation friend, challenged the lawfulness of the council's assessment of his age as procedurally unfair and unlawful.

Mrs Justice Thornton said the issues raised by the claim were:

(1) the lawfulness of an abbreviated assessment of age by a local authority, based on physical appearance and demeanour, which does not comply with the full panoply of procedural safeguards laid down in caselaw for such assessments and are often referred to as "Merton compliant" assessments, after the leading case of R (B) v London Borough of Merton [2003] 4 All ER 280; [2003] EWHC 1689 (Admin);

(2) The applicability of the recent Court of Appeal decision in BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872, to an abbreviated assessment by a local authority.

There were four grounds of challenge to the age assessment by Kent:

(1) The age assessment was procedurally unfair and lacked a number of appropriate safeguards (e.g. failing to provide an appropriate adult; failure to account for cultural, racial and social differences).

(2) The council should have conducted a Merton compliant assessment.

(3) The assessment was unreasonable, irrational, unreliable and failed to give sufficient consideration to material evidence and facts, and failed to give reasons.

(4) The defendant's assessment was wrong as a question of fact. The parties were agreed that the factual assessment of AB's age should be transferred to the Upper Tribunal. They could not agree, however, whether permission had been granted for this aspect of the claim.

Counsel for AB did not seriously dispute the principle of an abbreviated assessment but focussed on the circumstances in which it would be permissible, Mrs Justice Thornton said.

The judge said: “[Whilst] it may be legitimate for a local authority to assess age based on an abbreviated assessment of physical appearance and demeanour, it is incumbent on the authority to ensure that any such decision takes into account the margin for error in the abbreviated nature of the assessment.”

Counsel for AB sought a ruling from the Court that, as a matter of principle, an initial assessment, based on physical attributes and demeanour, should not be treated as determinative by the local authority unless it concluded that the person in question was 25 years or over.

In response, counsel for Kent contended that this would radically alter the way in which local authorities currently conduct assessments (using the benchmark of 18 years) and would have significant resource and cost implications for a local authority like the defendant.

Mrs Justice Thornton said she did not consider it appropriate for the court to specify a permissible margin of error for initial assessments by local authorities based on physical appearance and demeanour, “not least, it seems to me, because the margin of error may depend on the circumstances of the assessment”.  

The judge also said that a decision not to follow up on potential relevant evidence – AB had provided details of an uncle who might have been able to verify his age and a phone number (although the council argued the identity of the person who answered would be difficult to verify) – or to come to a view on AB's credibility ought to be reflected in an acknowledgement of the margin for error in not doing so.

Kent’s decision letter also made no reference to the views of a caseworker from the Refugee Council, in whose care AB was, or why they were not meritorious. In the caseworker's opinion AB's physical appearance and his behaviour outside of an interview setting presented as consistent with his experience of other Afghan minors.

Mrs Justice Thornton said the council's decision letter contained no express acknowledgement of the margin for error in its assessment. “Nonetheless, [counsel for Kent] pointed to the conclusion that AB presented as twenty – twenty five years and said this was consistent with any requirement to acknowledge the margin for error and appropriate in the circumstances of this case. However, given the potential margin for error identified above, I am of the view that Kent Council should have given AB the benefit of the doubt and conducted a Merton compliant assessment.

“[A member of the Home Office asylum support team] assessed AB as 'around' twenty to twenty one years. The formal decision assessed him at twenty – twenty five years. In the circumstances of this abbreviated assessment, the assessed age is too close to the cut off of eighteen years for the council not to give AB the benefit of the doubt.”

Ruling that the abbreviated age assessment was unlawful, Mrs Justice Thornton ordered a full Merton assessment to be carried out by independent social workers.

In relation to the original assessment, the judge said that providing its limitations as set out in her judgment were recognised, she accepted it provided relevant material for the local authority to build upon. Accordingly, she declined to quash tht assessment.

Mrs Justice Thornton confirmed that the case should be transferred to the Upper Tribunal if a dispute remains following the full Merton assessment. She said AB’s date of birth would be a matter of fact for the UT to determine.

Instalaw, the law firm that acted for the claimant, said: “Whilst the circumstances of this case are important, the judgment of the court is of wider application that will impact upon how all local authorities approach the conduct and outcome of any 'short form' age assessment.”

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