Deputy High Court judge grants permission for challenge to age assessment

A claimant, who contends he is 17 years old, has been granted permission to apply for judicial review in relation to an alleged “flawed” age assessment conducted by Sefton Metropolitan Borough Council.

Karen Ridge sitting as a Deputy High Court Judge concluded that the documentation before the court “does raise a factual case on both grounds, which, taken at its highest, may succeed at a full hearing”.

Outlining the background to the case in NCH (Vietnam), R (On the Application Of) v Sefton Metropolitan Borough Council [2023] EWHC 1033 (Admin), Judge Ridge said that the claimant is a Vietnamese national who has claimed asylum and contends that he is a child.

She said: “The Claimant contends that his date of birth is 1 May 2005 and that he is now 17 years old and is in fact due to turn 18 years old in a matter of days.”

The claimant says that, on arrival in the United Kingdom in March 2021, he was kept in a warehouse for 10 days before being released after his sister had paid a sum of money.

“The claimant states he was homeless for three months and then was detained by four men and made to care for cannabis plants”, the judge said.

She added: “Approximately 10 days later the house in which he was detained was raided by the police, and he was placed in foster care. He ran away and was homeless."

The claimant appeared at Liverpool Magistrates Court on 25 September 2021 facing a charge of cannabis production. His defence raised the likelihood that he had been trafficked, said the Deputy High Court Judge.

A referral was made by West Midlands Police on 14 July 2021. On 3 February 2022 the claimant received a positive conclusion grounds decision following that referral.

The claimant was taken to the defendant council’s children's services accommodation and a full age assessment was undertaken.

On 23 February 2022 the conclusion of that assessment was that the claimant was 18 years or older, which is the decision subject to challenge.

The application for permission comprised two grounds:

1. Sefton's age assessment was flawed for reasons of procedural unfairness and a failure to ensure compliance with well-established principles on age assessment.
2. An allegation that the defendant failed to consider relevant matters, namely the claimant's experiences as a likely/potential victim of trafficking.

Looking at Ground 1, Judge Ridge said: “Both parties direct my attention to the Association of Directors of Children's Services (ADCS) Age Assessment Guidance which states that:

"Before reaching a decision that contradicts the stated age, you should discuss with the child or young person the factors which have led you to form your opinion. The interpreter and the appropriate adult should be present for that session to help the child or young person ask any questions or clarify information. If the child or young person offers any further information or explanation, this should be considered as part of the assessment before the final decision is made. Once all the information is compiled, you should set out the factors that lead to your conclusion."

The Deputy High Court Judge noted that the claimant's case is that, during the assessment interviews, the basis on which the decision on age assessment was going to be made was “not fully explained to the claimant such that he had an opportunity to address any perceived inconsistencies or deficiencies in his case”.

“Moreover, the claimant points to excerpts from the minded to interview which indicate that a concluded decision had been reached at the point at which the inconsistencies were put to him”, she said.

The claimant further pointed out that he was told how the decision had been reached and that he "had not been consistent when providing an account of his story" but that the particularities of any inconsistency were not explained to him.

The Deputy High Court Judge said: “For example, the council relied upon its own research into the Vietnamese education system which suggested that students in Grade 9 in Vietnam are 14 years old and the academic year runs from August to May.”

The council had therefore concluded that the claimant's 18th birthday would have fallen on 1 May 2021.

However, the claimant said those details were “not put to him in interview” and, if they had been, he would have informed the defendant that he began grade 9 in January 2018 at the age of 13 because children would start the new grade even if they were below the expected starting age and that the academic year in Vietnam began in January.

Considering whether there was an arguable case in relation to ground one, Karen Ridge said: “Whilst I accept that a verbatim note is not required of the interview, for the process to be fair, the claimant must have a sufficiently clear indication of the concerns regarding his account and other issues, to enable him to address those concerns.

“In this case the claimant appears to have a response to the concerns regarding the schooling timeline. This response was not provided but that may have been because the discrepancy was not put in sufficient detail. It is not sufficient for the defendant to say, in general terms, there are inconsistencies in your account without informing the concerned individual as to what those inconsistencies are.

“For those reasons I conclude that there is an arguable case in relation to ground 1 and that permission should be given."

Looking at the arguments in Ground 2, the Deputy High Court Judge said: “I note that the professionals involved in the claimant's care up to the point at which the age assessment was undertaken were mindful of his status as a potential victim of trafficking. Support was made available to him.

“However, there is no reference in the age assessment to the claimant being a possible victim of trafficking or that his responses and the issues as to credibility had been considered in the context of the likely trauma which may have been suffered by the claimant as a trafficking victim.

“Such a reference would have indicated that it remained in the minds of the decision makers at the appropriate time. Given the contextual background to the assessment, and the likely effects of potential trafficking upon the claimant, these are important considerations in an age assessment process.”

She concluded: “I consider that it was incumbent upon the decision maker to remain mindful at all times of the potentially traumatic experiences of the claimant and to look at questions of credibility and inconsistent accounts having regard to these matters. There is a positive duty imposed upon the decision maker by the guidance to do that. It is far from clear that this was the exercise undertaken. I therefore conclude that permission should be given on ground 2”.

The Deputy High Court judge granted permission to apply for judicial review pursuant to grounds 1 and 2.

However, she dismissed the application for interim relief.

Lottie Winson