Failure by council to carry out its own age assessment of asylum seeker was unlawful, deputy High Court judge rules

A judge has criticised a council for its “unhelpful" conduct in a case involving the age assessment of a young asylum seeker.

In AF, R (On the Application Of) v Milton Keynes Council [2023] EWHC 163 (Admin) Susie Alegre, sitting as a deputy judge of the High Court, dismissed Milton Keynes Council’s contention that the case had become academic as claimant AF had since passed his 18th birthday even on his own evidence, and made a mandatory order for Milton Keynes to take a decision on his age.

AF is a a Syrian asylum seeker who claimed to be a child when he entered the UK in November 2021.

He was assessed by the Kent Intake Unit (KIU), which determined he was over 18 and the Home Office recorded AF as an adult and allocated him to emergency accommodation in Milton Keynes.

In May 2022, AF's solicitors contacted the council to request copies of the age assessment documentation as they wanted to know why it was not providing services for AF under the Children Act 1989. They said AF was 17 and was residing in inappropriate accommodation.

Milton Keynes said it had not assessed AF’s age and relied on a Home Office letter and therefore considered any claim should be against the Home Office for its determination.

The lawyers later responded with a pre-action letter and the council’s response stated it had no duty to undertake an age assessment in the circumstances.

AF contended that Milton Keynes’ refusal to assess his age was unlawful as it failed to ensure it had adequate information to determine whether AF was a child to whom it owed a duty to provide services.

He also argued that the decision was ‘Wednesbury’ unreasonable in that any reasonable public body would have determined that it must properly assess the claimant's age itself in the circumstances - without sight of an age assessment, and with full knowledge of the unlawfulness of the KIU assessment process.

The guidance relating to such age assessments had subsequently been found unlawful in R (MA and HT) v Secretary of State for the Home Department [2022] EWHC 98 (Admin)

AF argued that a local authority must satisfy itself whether an applicant is a child by an age assessment and cannot simply rely on the Home Office's assessment and its actions were therefore unlawful.

Milton Keynes did not challenge this but said the claim should now be rejected as academic because AF was, on his own case, now 18 and so not be entitled to support and accommodation under sections 17 and 20 of the 1989 Act.

AF argued the claim was not academic as failure to make the assessment would mean he would go through life categorised with the wrong age.

A local authority can still exercise its discretion to provide services for someone over 18 even if they had not been classified as a 'former relevant child' for the purposes of s23C of the 1989 Act, the court was told.

Ms Alegre said it was clear Milton Keynes had a public law duty to make the necessary inquiries to arrive at an informed decision on AF's age by way of a ‘Merton’ compliant age assessment.

"The failure to discharge this duty lawfully gives rise to a public error of law rendering the decision not to make inquiries unlawful,” she said.

Milton Keynes had ceased to argue that the Home Office letter and KIU assessment were sufficient and “the claim succeeds on the substance”.

Turning to whether the case had become academic, Ms Alegre said many of the delays that had taken the case past AF’s 18th birthday “were due to failures of [Milton Keynes] to respond to correspondence from the claimant's solicitors or, indeed, to engage properly with the legal proceedings.

“I therefore give no weight to assertions that the claimant was responsible for delays that could have rendered the claim academic.”

She explained: “It is impossible to know what consequences will flow from the age assessment without first conducting it, but remedying the unlawful failure to conduct an age assessment on AF is still of practical value and therefore I find the claim is not academic.”

The judge said any decision by the council to exercise discretion over the provision of services to AF in the absence of a new age assessment would be premature and “in light of the unhelpful way that [Milton Keynes] has behaved so far in relation to this claim and its limited responses, it may also be counter-productive.

“I am concerned at the [council’s] failure to respond to requests and correspondence from the claimant and, indeed, failure to follow procedure in a timely fashion in these proceedings.”

She made a mandatory order for Milton Keynes to take a decision within good time in the exercise of its discretion to provide services in accordance with s.23C of the 1989 Act should the new age assessment confirm AF's stated age.

Mark Smulian