High Court orders dispute over age of refugee to be heard by Upper Tribunal after council errors

A dispute about the age of an Afghan refugee must be sent to the Upper Tribunal for determination, the High Court has said.

In M, R (On the Application Of) v London Borough of Waltham Forest [2021] EWHC 2241 Dan Squires QC, sitting as a deputy judge of the High Court, said the London Borough of Waltham Forest had wrongly conducted its initial age assessment of M and then carried the errors made forward into a second assessment.

M arrived in the UK in October 2019 and claimed to be aged 13 or 14 but Waltham Forest’s assessment later concluded he had already been an adult on arrival.

He challenged this on the ground that he was not given an opportunity to deal with points regarded as adverse to his case while the assessment was still at a formative stage.

M also disputed what weight could be given to later material obtained by the council that suggested that since M’s height had not changed over the course of a year it was unlikely he was 13 or 14 as he would then still be growing.

Judge Squires said that once Waltham Forest had concluded M was an adult “the conclusion was read out to the claimant but he was not given the opportunity to comment on the assessors' adverse conclusions while they were at a formative stage”.

Waltham Forest’s findings were based on M’s physical appearance, his claim to have attended a madrassa, and that he had given his age as 18 when detained for a month in Bulgaria on his way to the UK.

Judge Squires said: “The case before me in relation to fairness turns then on two questions. Was the May 2020 age assessment flawed? If so, did that taint the conclusion of the October 2020 assessment to such an extent that it should be regarded as having been unfairly conducted, or was the [council] entitled to conclude that the new evidence was so compelling it could simply update the May 2020 assessment to incorporate it?”

He added: ”In my view it is clear that the May 2020 assessment did not satisfy the requirements of a Merton compliant process, and the decision taken on the basis of it did not meet the minimum standards of fairness required in this context.”.

The judge rejected all the other grounds advanced by M and said he was left with three options: to decline any relief pursuant to s 31(2A) of the Senior Courts' Act 1981; transfer the matter to the Upper Tribunal to determine M’s age; or remit the matter to Waltham Forest for a further age assessment.

He said: “Unless I am able to conclude that the claimant's case, taken at its highest, could not properly succeed at a contested hearing before the Upper Tribunal, it is at least amenable to transfer.

“I consider that that relatively low threshold is met in this case. While there is evidence to suggest that the claimant may be over 18, its weight is limited by the fact that there has not been a Merton compliant process and much of it points to the claimant being older than 13/14 but not necessarily that he was 18 as of October 2019.”

Mark Smulian