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Cite as: [2015] EWCA Civ 1137

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Neutral Citation Number: [2015] EWCA Civ 1137
Case No: C4/2013/1515/QBACF

ROBIN PURCHAS QC (sitting as a Deputy High Court Judge)

Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



The Queen on the Application of ZS (Afghanistan)
- and -

Secretary of State for the Home Department


Stephanie Harrison QC and Greg Ó Ceallaigh (instructed by TV Edwards LLP) for the Appellant
Robin Tam QC and Zoe Leventhal (instructed by Government Legal Department) for the Respondent
Hearing dates: 15th and 16th July 2015



Crown Copyright ©

    Lord Justice Burnett :

  1. This appeal raises three issues:
  2. i) Was the appellant unlawfully detained by the Secretary of State between 27 September and 21 October 2011 under schedule 2 paragraph 16(2) of the Immigration Act 1971 because the detention breached the relevant Home Office policy?

    ii) Should the Secretary of State have regarded a letter written by the appellant's solicitors on 7 October 2011 as a fresh claim for asylum or humanitarian protection for the purposes of paragraph 353 of the Immigration Rules, as well as a renewed application for discretionary leave to remain as a failed asylum seeker who was under the age of 18?

    iii) In refusing the appellant discretionary leave to remain in response to that renewed application, was the Secretary of State's decision flawed because she misunderstood the status of a finding of the First-tier Tribunal that he was 18 or over?

  3. In an ex tempore judgment at the hearing of the application for judicial review on 15 May 2013 Robin Purchas QC, sitting as a Deputy High Court Judge, concluded each issue against the appellant, [2013] EWHC 1619 (Admin).
  4. The Facts

  5. The appellant arrived clandestinely in the United Kingdom through Dover on 4 February 2009. He was born in Afghanistan. He applied for asylum and claimed to be a child born on 10 March 1994 and so approaching his 15th birthday. Kent County Council ["KCC"] and the immigration authorities ["the Home Office"] treated him as a minor when he first came to their attention, with the former providing appropriate support. An age assessment was carried out on 24 February 2009 for KCC by a social worker and support worker which took into account the observations of those who had had close contact with the appellant in the intervening 20 days. They concluded that the appellant was over 18. In consequence, for the purposes of their statutory functions KCC decided to treat him as an adult. That information was conveyed to the Home Office in a letter of the same date which also said that "the assessment was a full assessment as required by 'Merton'". That was a reference to the decision of Stanley Burnton J in R (B) v Merton London Borough Council [2003] 4 All ER 280.
  6. A sheet was attached to the letter entitled "Unaccompanied Minor Age Assessment Results" which indicated that the appellant's physical appearance and demeanour strongly suggested he was an adult and referred to a series of factors which also had been taken into account in reaching the decision that he was over 18. They were:
  7. i) Observation of interaction with peers;

    ii) Family and social history;

    iii) Education;

    iv) Independent self-care skills;

    v) Interaction of person during assessment;

    vi) Cultural and linguistic ability; and

    vii) Maturity and developmental considerations.

    These factors formed part of a list of 11 provided on the document against which either a 'Y' or 'N' was typed to indicate whether it was considered. The others, against which 'N' was typed, were

    viii) Self disclosure;

    ix) Health or medical consideration, if any;

    x) Other e.g. documents validated by IND;

    xi) Medical Reports.

  8. The assessment itself was not provided to the Home Office then, or ever. It is in the papers before the court. It provides details of the assessment made, the substance of the answers and explanations given by the appellant and the views of others who had been dealing with him since his arrival. It was not until 29 June 2010, more than 16 months after his arrival in the United Kingdom, that a decision was made on the appellant's asylum and humanitarian protection claim. The claims were rejected. The appellant's account of events said to have occurred in Afghanistan and relating to his departure from Afghanistan was considered by the Home Office to be incredible. One of the factors leading to the overall conclusion that the appellant was not credible was that the Home Office did not accept that he was, as he claimed, born in 1994. That stemmed in part from his own uncertainty about how old he was, the outcome of the age assessment conducted by KCC (which had not been challenged by the appellant) and the production of a birth certificate which was not considered to be authentic. It was the policy of the Home Office, in cases involving an unaccompanied minor who unsuccessfully claimed asylum, to grant him discretionary leave to remain until his 18th birthday. That did not arise in the appellant's case because he was considered to be an adult.
  9. In April 2009 the appellant had been dispersed to Cardiff and was placed in adult accommodation. The Welsh Refugee Council then asked for his status to be reconsidered. Nonetheless, he continued to reside in adult accommodation until October 2010 when TV Edwards LLP, his current solicitors, asked Cardiff to undertake a fresh age assessment. On 25 October 2010 two social workers concluded that he may be a child. However, in the light of further information obtained by Cardiff (to which I shall return) when the full age assessment was completed on 20 December 2010 its conclusion was that the appellant was over 18.
  10. In the meantime the appellant had exercised his right of appeal to the First-tier Tribunal against the decision refusing asylum of 29 June 2010. Immigration Judge Crawshay heard the appeal on 9 August 2010 and dismissed the appeal in a determination issued on 17 August 2010. The appellant was unrepresented but had the assistance of Asylum Justice. On his behalf that organisation produced two bundles of documents and a skeleton argument. In addition the appellant produced and relied upon a statement. The second bundle of material produced by Asylum Justice was directed towards the appellant's age. There were three letters from representatives of organisations who had contact with the appellant whilst he was in Cardiff which expressed the opinion that he was under 18. We have not seen the witness statement made by the appellant for the tribunal appeal, but it is clear that he had put his age in issue. The judge noted that the Home Office Presenting Officer produced the result of the KCC age assessment at the hearing. The parties have agreed that to be a reference to the letter and attachment to which I have already referred.
  11. The judge explored the appellant's evidence with him and took him through much of the documentary material. He was then cross-examined. The judge's approach was meticulous in seeking to enable the appellant to explain his case fully. The appellant told the judge that he was 16 years and 5 months old. The judge made a finding on the totality of the evidence before him that the appellant was over 18 when he arrived in the United Kingdom. A finding to the contrary would not have resulted in the asylum and humanitarian protection appeal being allowed. It would have led the Home Office to reconsider the question of discretionary leave to remain until the appellant reached the age of 18 in accordance with its policy. The judge found that the appellant's evidence about alleged events in Afghanistan was incredible and riddled with inconsistencies and contradictions. The judge did not link the adverse credibility findings to his determination of the appellant's age. The appeal was dismissed.
  12. The appellant sought permission to appeal to the Upper Tribunal. As is the invariable practice, that application was considered initially by a different judge of the First-tier Tribunal. The application was refused on 1 September 2010 on the basis that the complaint was about factual findings open to the judge, rather than any error of law. The appellant renewed his application to the Upper Tribunal, but that was refused on 24 September 2010. It was at that stage that the appellant's appeal rights were exhausted. The Home Office case record sheets show that steps were taken to remove the appellant from the United Kingdom in early November 2010 but, for reasons it is unnecessary to explore, that did not happen. Removal directions were later set for 9 February 2011 and the appellant was taken into custody briefly pending removal. No complaint has been made about that period of detention. The appellant was released when his current solicitors told the Home Office that he was challenging the age assessment by Cardiff City Council concluding that he was over 18. A note to that effect for 21 January 2011 appears in the Home Office records.
  13. By this time the appellant had been in the United Kingdom for a few weeks short of two years and, if his account was correct, was approaching his 17th birthday.
  14. The Cardiff assessment came to be made in unusual circumstances. We have seen that Cardiff treated the appellant as an adult, no doubt because that was the conclusion of KCC, a conclusion which the appellant had taken no steps to challenge. The request for an age assessment came from the appellant's solicitors immediately following the refusal of permission to appeal by the Upper Tribunal. They relied upon the three letters which had been before the First-tier Tribunal, together with the birth certificate and an identity document which both the Home Office and judge had seen but discounted as inauthentic. They wrote a pre-action protocol letter to Cardiff of 28 September 2010 challenging the treatment of the appellant as an adult. When two social workers conducted the assessment on 25 October they were unaware that the appellant had appealed to the First-tier Tribunal, that there was a judicial finding that he was over 18, or that the three letters relied upon had been before the judge. That was because the solicitors had not mentioned those facts in the correspondence, still less produced a copy of the determination of the judge. Neither was a full copy of the KCC age assessment provided to Cardiff. Having interviewed the appellant, the social workers' immediate conclusion was that he was between 17 and 19. That resulted in his being given the benefit of the doubt about whether he was under 18, with the consequence that from the beginning of November 2010 he was treated by Cardiff as a child for the purposes of the Children Act 1989.
  15. Cardiff were then informed of the true position regarding the background by the Home Office. Cardiff obtained the determination of the judge and a copy of the full KCC age assessment. Cardiff's own formal age assessment stated that "we take the view that the fresh evidence presented to us by TV Edwards carries no weight and we concur with the view of Kent County Council and the AIT that [the appellant] is now over 18."
  16. Judicial review proceedings were issued by the appellant against Cardiff City Council. John Howell QC, sitting as a Deputy High Court Judge, granted permission to apply for judicial review on 30 March 2011. He indicated in his detailed written reasons that the conclusion I have quoted gave rise to an arguable public law error, in particular, that the local authority should not have concluded that the letters expressing the opinion that the appellant was under 18 carried "no weight". He noted that the immigration judge had not discussed their content in his determination. The deputy judge therefore concluded that at a contested factual hearing in judicial review proceedings it might be determined that the appellant was in fact under 18 at the material time. He transferred the claim to the Upper Tribunal for such a factual hearing to take place. That was in accordance with the approach that challenges to a local authority's age assessment required a court to determine for itself the age of the person concerned: R (A) v. Croydon London Borough Council [2009] 1 WLR 2557, [2009] UKSC 8.
  17. Any public authority involved in such proceedings is expected to review its position in the light of permission being granted. That is what happened. Cardiff decided not to contest the proceedings. On 4 May 2011 a solicitor acting for Cardiff City Council wrote to the Administrative Court Office indicating that they took the view that the original decision of the social workers on 25 October 2010 would be 'upheld'. In short, Cardiff's view of the totality of the material led its legal team to conclude that the Upper Tribunal would probably accept that the appellant was under 18. Cardiff was prepared to accept the appellant's claimed date of birth and continued to treat him as a child for the purposes of the Children Act 1989. The writer indicated that a copy of the letter had been sent to the appellant's solicitors.
  18. Between 21 January 2011, when the appellant's solicitors told the Home Office of the challenge to the Cardiff age assessment and 21 June 2011, the Home Office heard nothing. On that date they received a letter dated 20 June from different solicitors, Duncan Moghal Solicitors and Advocates, enclosing the letter dated 4 May 2011 from Cardiff's solicitor and the three letters which had been before the judge and later before Cardiff City Council. The request was that the Home Office should grant discretionary leave to remain under the policy which accords that status to unaccompanied minors in the appellant's position until they reach their 18th birthdays. The simple point being made was that the evidence now suggested that the appellant was under 18 and would not reach his 18th birthday for another nine months. On 5 July 2011 Chris Williams of the asylum team responded:
  19. "Thank you for your letter dated 20 June 2011, in which you request that your client is granted Discretionary Leave in line with the UK Border Agency policy on Unaccompanied Asylum Seeking Children.
    It is noted from their letter dated 04 May 2011 that Cardiff County Council eventually accepted that your client's date of birth is 10 March 1994 on the basis of letters from two of his educational providers and the Child Advocacy Officer at the Welsh Refugee Council.
    All three of these letters were before the Immigration Judge at your client's appeal hearing on 09 August 2010 and are referred to in paragraph 4 of the resulting determination dated 11 August 2010. In considering your client's claimed age at paragraph 36 of the said determination, the Immigration Judge found that your client had submitted unreliable documents and concluded "I am led on the evidence to find that the appellant in February 2009 was over 18 years old."
    As noted above, the evidence that led the Immigration Judge to this conclusion included the three letters that were later provided to Cardiff County Council. It is noted that the Immigration Judge's findings were upheld following unsuccessful requests for permission to appeal to the First-tier Tribunal and Upper-tier Tribunal. As such it is concluded that there is no reason to depart from the Immigration Judge's finding that your client was over 18 years old in February 2009. He will therefore continue to be treated as an adult with a date of birth of 10 February 1991 and will not be granted Discretionary Leave.
    Should you wish to discuss this further, please do not hesitate to contact me."
  20. The invitation in the last paragraph was not taken up. The Home Office letter elicited no response at all, still less an indication that the decision to refuse discretionary leave would be challenged, as it could have been in judicial review proceedings. The decision gave no right to a fresh appeal to the First-tier Tribunal.
  21. It was in those circumstances that action was taken to remove the appellant from the United Kingdom. Removal directions were set for 12 October 2011 and he was taken into custody on 27 September. In the meantime, on 22 August 2011 the Upper Tribunal made a consent order reflecting that Cardiff accepted the appellant's date of birth as 10 March 1994.
  22. On 7 October 2011 TV Edwards LLP (who had reappeared as the appellant's solicitors) wrote a pre-action protocol letter challenging the detention and removal. A copy of the order made by the Upper Tribunal was provided to the Home Office. They asserted that the Home Office was "bound" by that decision to accept that the appellant was only 17½ . I should note immediately that Miss Harrison QC did not seek to support that contention on behalf of the appellant. The factual recital in the letter before claim referred only to the approach of Cardiff and to various stages in the proceedings against them. It suggested that it was wrong to detain the appellant as an adult. He was a child and thus his detention breached the Home Office policy not to detain minors save "in exceptional circumstances and then only overnight". The action that the Home Office was asked to take was (a) to confirm that removal directions would be cancelled; (b) to confirm that no steps would be taken to remove the appellant whilst he was a minor; and (c) to confirm that he would be released immediately. There was no mention of a fresh asylum or humanitarian protection claim in the letter or of any facts touching on such a claim. There was also no reference to discretionary leave to remain until the appellant became 18 (judged by the date of birth accepted by Cardiff) or any suggestion of a challenge to the earlier decision refusing such leave. On his own account the appellant would cease to be a minor in March 2012 at which time the policy would, on any view, have no continuing application. The letter was striking also for the absence of any reference to the applicable policy on detention, the KCC age assessment or any suggestion that it was not Merton-compliant for the reasons now advanced, or any other reason.
  23. An official from the office responsible for "removals logistics" at the Home Office responded by letter on 9 October in the following terms:
  24. "You have requested that the removal directions set for 12th October 2011 at 02:40 be cancelled, in view that your client is a minor and his removal would be unlawful. You state that Cardiff County Council have accepted your client's date of birth as 10/03/1994 and a Consent Order was approved and sealed by the Honourable Mr Justice Ockleton of the Upper Tribunal on 22nd August 2011.
    I have given full consideration to your representations and the documentary evidence. However, as stated in the UK BA letter of 5th July 2011, copy following for your information, if as in your client's case, the Immigration Tribunal has ruled that [ZS] is an adult then the UK BA are bound by that ruling, whatever a local authority may have concluded afterwards. Your representations are hereby rejected. There are no barriers to your client's removal. … which will proceed as stated above."
    It is apparent that the author did not treat the letter of 7 October as a fresh claim for asylum and humanitarian protection. There was no mention of such matters in the reply. Nor did she expressly treat it as a further application for discretionary leave, although the only barrier to removal would have been a conclusion that the appellant was under 18, and so entitled under the policy to discretionary leave until his 18th birthday. The response mirrored the solicitors' letter which sought to put the appellant's age in issue once more. The claim for judicial review was issued on 11 October 2011. Silber J ordered a stay on removal that same day pending determination of the question whether to grant permission to apply for judicial review. On 21 October the appellant was released from custody back into the care of Cardiff who continued to treat him as a child for the purposes of the Children Act 1989.
  25. An acknowledgement of service followed on 20 March 2012 by which time, even on his own case, the appellant had reached the age of 18. By then he could not be granted discretionary leave under the relevant policy. The question of his age remained relevant to the alleged unlawful detention raised in the proceedings. The Home Office argued that it continued to rely upon the decision of the judge, who had all the written material later before Cardiff. Permission to apply for judicial review was granted on 19 June 2012. At the hearing of the claim before the deputy judge on 15 May 2013 the appellant unsuccessfully sought to amend his grounds to challenge the decision of 5 July 2011 which had refused to grant discretionary leave to remain in the light of Cardiff's acceptance that he was a minor.
  26. Permission to appeal to the Court of Appeal was granted on the papers on 4 October 2013.
  27. The Detention Claim

  28. The statutory authority to detain an illegal entrant pending removal is found in paragraph 16 of schedule 2 to the Immigration Act 1971. Whilst couched in broad discretionary terms, the power to detain is subject to a number of implied limitations, conveniently described as the Hardial Singh principles (see R v. Secretary of State for the Home Department ex parte Hardial Singh [1984] 1WLR 704). Nothing in this appeal turns upon the terms of the statutory power to detain or upon Hardial Singh. The power to detain is also subject to a public law limitation: to the extent that the Secretary of State has in place a policy which governs detention in the circumstances affecting the individual concerned, she may only detain him in accordance with the policy, absent good reason to the contrary: see R (Lumba) v. Secretary of State for the Home Department [2012] AC 245.
  29. The dispute on this aspect of the appeal centres on whether the appellant's detention in September and October 2011 was in accordance with the relevant policies. Those policies are found in Chapter 55 of "Enforcement Instructions and Guidance" ["EIG"] read with the guidance on "Assessing Age".
  30. It is for the court to determine the meaning of the policy: R (Raissi) v. Home Secretary [2008] QB 836. "The citizen is entitled to rely upon the language of the statement, seen as always in its proper context": Lord Steyn in In Re McFarland [2005] 1 WLR 1289 HL at [24]. In interpreting a policy of this sort, it is not appropriate to subject the policy document to fine analysis in the same way as one would a statute: R v. Secretary of State for the Home Department, Ex p Ozminnos [1994] IMM AR 287 at 292. Furthermore,
  31. "Care must be taken not to stray beyond interpretation into what is in substance policy formulation by judicial glosses which unduly circumscribe what is meant by a discretionary exercise by the executive branch of government. … What is needed is what Maurice Kay LJ in the MD Angola case [2011] EWCA Civ 1238 at [16] described as a "pragmatic and purposive construction": R (Das) v. Secretary of State for the Home Department [2014] 1 WLR 3538, per Beatson LJ at [48].
    Having determined the meaning of the policy, the issue arises whether the court should decide for itself whether there was (or was not) a breach of the policy; or review the decision made by the Home Office on traditional public law grounds. Although there have been conflicting decisions in this court on the point, the issue was resolved in R (LE) Jamaica v. Secretary of State for the Home Department [2012] EWCA Civ 597. Richards LJ stated at [29] that compliance with the policy limitations should be reviewed on Wednesbury grounds, echoing the same conclusion he had reached in R (OM) v. Secretary of State for the Home Department [2011] EWCA Civ 999 at [24]. That was the approach followed by the Supreme Court in R (AA (Afghanistan)) v. Secretary of State for the Home Department [2013] 1 WLR 2224; [2013] UKSC 49.
  32. The detention in this case was authorised pending the appellant's proposed removal a short time thereafter. No argument would or could be raised over the legality of his detention were it accepted that he was an adult.
  33. Paragraph 55.5.3 EIG identifies the detention of an unaccompanied minor as a "special case" that requires high level authorisation. Paragraph 55.9.3 limits the circumstances in which a person under 18 may be detained, including that detention pending removal may occur only on the day of such removal for the purpose of proper and safe escort to the aircraft. The paragraph also provides that if a person is detained as an adult but subsequently is accepted as being a child, he should be released into local authority care as soon as arrangements can be made. The overall intention of this part of the policy is to ensure that children are only rarely detained using immigration powers.
  34. Paragraph EIG is entitled "Persons claiming to be under 18". It provides (in the quotations that follow from both policies all emphasis is in the originals):
  35. "Sometimes people over the age of 18 claim to be children in order to prevent their detention or effect their release once detained. Information on the [Assessing Age] policy and procedures concerning persons whose ages have been disputed is available on the website …
    UK Border Agency will accept an individual as under 18 (including those who have previously claimed to be an adult) unless one or more of the following criteria apply:
    UK Border Agency does not commission age assessments. However the claimant may submit medical or other evidence of age independently. This must be considered and due weight attached to it where appropriate, It should be noted though that the margin for error in medical assessments in these cases can be as large as 5 years either way, and the approaches of medical practitioners may vary widely. This is a complex area and, if in doubt, caseworkers should seek advice …
    Once treated as a child, the applicant must be released to the care of the local authority as soon as possible. Suitable alternative arrangements for their care are entirely the responsibility of the local authority. Care should be taken to ensure the safety of the child during any handover arrangements, preferably by agreement with the local authority.
    Where an applicant claims to be a child but their appearance very strongly suggests that they are significantly over 18 years of age, the applicant should be treated as an adult until such time as credible documentary or other persuasive evidence such as a full "Merton-compliant" age assessment by Social Services is produced which demonstrates that they are the age claimed…
    In borderline cases it will be appropriate to give the applicant the benefit of the doubt and to deal with the applicant as a child.
    It is UK Border Agency policy not to detain children other than in the most exceptional circumstances. However, where the applicant's appearance very strongly suggests that they are an adult and the decision is taken to detain it should be made clear to the applicant and their representative that:
    In these cases, form IS97M must be completed and sent to DEPMU, and the assessed date of birth must be recorded on CID so that all documentation shows the assessed date of birth rather than that claimed. Failure to do so will result in DEPMU refusing to allocate detention space in adult accommodation to those claiming to be children."
  36. The Assessing Age policy identifies its purpose as to set out procedures that apply when an asylum applicant claims to be a child, but has little or no evidence in support, and the claim is doubted. It is not directly concerned with detention but it casts light on what was understood to be a Merton-compliant age assessment and also other matters which inform the question: is an applicant for asylum a child? It makes clear that Home Office policy is to rely upon Merton-compliant age assessments undertaken by local authorities. Section 5 of the policy document deals with local authority age assessments. The version in the papers provided by the parties is that from 17 June 2011, at which time it was substantially redrafted. That was the version of the document in force when the appellant was detained, but not when KCC conducted the age assessment in early 2009 or when Cardiff was involved at the end of 2010 and early in 2011.
  37. Paragraph 5.1 deals with the judgment in Merton.
  38. "There is no prescribed way in which local authorities are obliged to carry out age assessments; the courts have, however, provided some general guidance to local authorities in a case involving Merton Council … Some of the key points noted by the court were:
    The policy continues by requiring officials to give considerable weight to findings of age made by local authorities, recognising their expertise in the matter, and says that a local authority assessment "will normally be accepted as decisive" in cases where it is the only source of evidence relating to age. In appropriate cases the case owner at the Home Office (as the official concerned is described) could discuss the matter with the local authority particularly where there were doubts about the reliability of the assessment or whether the general principles of Merton had been adhered to.
  39. At paragraph 5.3 the policy suggests that case owners should obtain a full copy of an age assessment and confirmation from the local authority that it was conducted in accordance with the guidelines in Merton. The policy notes a problem in that some local authorities feel constrained by data protection laws to refuse disclosure of the assessment unless permission is sought from (and given by) the person concerned. That was the attitude of KCC at all times material in this case. The document they provided to the Home Office following the assessment advised "the Home Office, judges, solicitors and other parties to obtain the assessed person's written permission to allow" KCC to disclose the full assessment. In A v. London Borough of Croydon and the Secretary of State for the Home Department [2009] EWHC 939 (Admin) at [38] and [39] Collins J noted that this problem had arisen and expressed the view that it was reasonable for local authorities to provide such assessments. That case was concerned primarily with the question of the impact of paediatric medical reports on the question of age assessment. The transcript of the judgment does not suggest that the substance of the concern expressed by local authorities (data protection legislation) was subject to argument; and we have heard no argument on it either. The guidance continues by saying that the case owner should "obtain in writing, at the very least, their [i.e. the local authority's] reasons on which their conclusion is based and an assurance that their assessment complies with [Merton]". Then,
  40. "Where applicants have been assessed as adults by the local authority, but maintain they are children, it is important to establish the local authority's reasons for their decision on age."
  41. Part 8 of the guidance deals with conflicting evidence, including cases in which contradictory age assessments have been made by two different local authorities. It advises that the second local authority should be asked to confirm it has considered the findings of the first. If the conflict remains, the case worker must make a judgement on all the evidence. Similarly, if further evidence is provided to the Home Office after a decision relating to age has been taken it should be considered and, if appropriate, the earlier decision withdrawn. Section 11 of the policy is concerned with findings of age made by Immigration Judges. Normally the Home Office will not depart from an immigration judge's finding on age but there are limited circumstances in which it would be proper to do so in the light of additional evidence not before the tribunal.
  42. Miss Harrison submits that on receipt of the letter before action on 7 October 2011 the appellant should immediately have been released because the Home Office did not have available to it a Merton-compliant age assessment determining that he was over 18, in circumstances when he was disputing his age. That is because "available" in paragraph EIG means "has a copy". She submits that the KCC age assessment was not Merton-compliant and that in any event the Home Office could place no reliance upon it in the absence of obtaining a full copy, rather than the document with which it was provided in 2009. Even if it were not necessary to obtain a copy of the full assessment, Miss Harrison submits that before relying on any summary it must provide sufficient detail to show that it was Merton-compliant, including short reasons. She submits that the document provided by KCC in 2009 did not meet that requirement. The statement that the assessment was Merton- compliant was insufficient. She submits that the whole period of detention from 27 September 2011 was unlawful for the simple reason that the appellant was disputing his age (notwithstanding his silence since his application for discretionary leave was rejected on 5 July) and there was no Merton-compliant age assessment. Her focus was on the second bullet point in paragraph She did not accept that the first bullet point (credible and clear documentary evidence that a person is under 18) could be interpreted as including a judicial determination of age. In this case she submits that the finding of the immigration judge is also flawed because he did not have the full age assessment. She went so far as to describe the judicial finding as "irrelevant" by October 2011. Nonetheless, she accepted that in the absence of new material following the determination of age by the immigration judge the Home Office would have been entitled to rely upon it. No doubt that is why the appellant accepts that the brief period of detention pending removal at the beginning of 2011 was lawful. The new material, that is to say the initial view of the Cardiff social workers that the appellant was under 18, the subsequent assessment that he was over 18 and Cardiff's reversal of position when that age assessment was challenged, overtook the position which obtained before the immigration judge.
  43. The statement of facts and grounds of claim identify three features of the KCC age assessment which it is said render it non-compliant with Merton. First, it was conducted by a social worker and a support worker, rather than two social workers. Secondly, there was no independent adult present, other than an interpreter. Thirdly, the appellant was not given the opportunity to respond to comments of the staff members who believed him to be an adult. That is a reference to observations from five support workers at the reception unit who had observed the appellant over the previous 20 days and expressed their opinion that he was over 18. As a matter of fact the first two points are not in dispute. The first assessor was an experienced social worker. The second assessor was the appellant's support worker whilst he was being looked after at the reception and assessment centre, not apparently qualified as a social worker. There was no independent adult present but the statement of facts is silent on whether the appellant was given the opportunity to have one present.
  44. There is no evidence of the detail of what occurred at the assessment, outside the written up document itself, save for the statement in the letter sent by KCC to the Immigration Screening Centre at Dover on 24 February 2009 that the assessment was a full assessment as required by Merton. Thus, by contrast with cases where an age assessment is subject to direct challenge, there is no statement in the proceedings from the assessors themselves dealing with points of criticism raised and evidenced by a claimant. There is also no statement from the appellant in these proceedings providing any detail of what he says occurred in the age assessment process.
  45. The skeleton argument produced for the appeal adds three more features said to make the KCC age assessment not compliant with Merton. First, factors held against the appellant were not put to him for comment. Secondly, there is no record in the assessment of when or how long the interview took place or whether the appellant was offered any breaks. Thirdly, the assessment made comment about the interaction of the appellant with the interpreter but there is no evidence that the assessors spoke Pashtu or sought the views of the interpreter.
  46. The assessment is not a verbatim record of what occurred. The statement of facts does not suggest that the appellant was denied an opportunity to comment on matters which the assessors were concerned about. Neither is any complaint made about the time and duration of the interview, or the absence or otherwise of breaks. In any event, the absence of the time of commencement and completion of the interview in the assessment document, or the question of breaks, does not make the process defective, however desirable such information might be. Similarly, the implicit suggestion that the assessors should not have had regard to the appellant's interaction with the interpreter in the absence of further information is, in my view, unsustainable. There is no such suggestion in the statement of facts. For my part, I would not be willing to make assumptions on these matters in the absence of their being raised in the claim form and evidenced.
  47. The term "Merton-compliant" has for many become shorthand for an age assessment that satisfies all the desiderata identified in a range of judicial decisions starting with Merton itself. At their core is the question of natural justice and fairness. In recent joint guidance between the Home Office and Local Authorities published in June 2015 the term "Merton-compliant" was explained:
  48. "This term is often used to describe whether an age assessment is case law compliant. … All local authority age assessments must be compliant with the case law of Merton and following case law since this judgement." (original emphasis)
  49. The term has been in use in local authorities and the Home Office for at least 10 years. In my judgment, this definition of "Merton-compliant" found in the 2015 joint guidance reflects what the term means in paragraph of the EIG. By 'compliant with case law' the term contemplates an age assessment which would not be quashed by the High Court in judicial review proceedings. It would be artificial to suppose that it should be fossilised at the time of Merton itself (not, I should emphasise, a submission advanced by Mr Tam QC on behalf of the Secretary of State) since the obvious purpose of referring to a Merton-compliant age assessment is to distinguish between those on which the Home Office may rely, and those on which it should not rely, at least not without more. The understanding of what amounts to a Merton-compliant age assessment has therefore evolved over the years, as we shall see when looking at the particular criticisms advanced on behalf of the appellant.
  50. The chronology in this case raises a question relating to when an age assessment must be Merton-compliant. Ordinarily the issue over a young person's age arises when he is first involved with the Home Office and a local authority. The judgement made at that stage determines how he is treated by the local authority for the purposes of their statutory duties and also by the Home Office for the purposes of immigration powers. Compliance with the policy is an issue which calls for determination immediately. Here, the age assessment was separated from the operative decision on detention by over two and half years. It would, I think, be impractical to interpret the policy as requiring a fresh look at whether an age assessment was or was not Merton-compliant by reference to developing case law every time an immigration-related decision was being made in which the age of the person concerned might affect the outcome. It would be unreal to approach its interpretation on the basis that an assessment which was Merton-compliant at the time it was conducted, and relied upon as such, becomes non-compliant for the purposes of the policy as a result of later judicial determinations. Merton-compliance should be judged by the standard at the time the age assessment was conducted.
  51. Two Social Workers

  52. Merton itself was decided on the basis that the claimant was not given an opportunity to meet the criticisms in his evidence upon which he was assessed to be under 18: see [15] and [55]. That had been a feature of a Merton-compliant assessment from the outset. Additionally, Stanley Burnton J made observations about the desirability of an interpreter being present, rather than being at the end of a telephone, and of there being a verbatim note of an interview, albeit neither was necessary as a matter of law, [52] to [54]. He concluded that the need to put matters to the claimant was reinforced in that case by possible confusion relating to the interpretation. At [33] he noted that draft guidelines prepared by the London Boroughs of Hillingdon and Croydon made "sensible suggestions", including that "it is beneficial to have two assessing workers: clearly two heads may be better than one." The totality of what was said on this topic in the draft guidelines was, "when practical, two assessing workers is beneficial." That glancing observation appears to be the genesis of the suggestion that a Merton-compliant age assessment must invariably be conducted by two social workers. In R(A) (cited above at [30]) Collins J understood that to be a reference to "two professionals" (at [13]) but later (at [38]) he referred to two social workers. As it happens, the age assessment under scrutiny in Merton was conducted by a single social worker. That fact did not play any part in the decision to set it aside. In R (C) v London Borough of Merton [2005] EWHC 1753 (Admin) the age assessment was carried out by two social workers, as were the assessments undertaken by Croydon and Lambeth which formed part of the background to the decision of the House of Lords in the Croydon case already referred to. They were undertaken in 2006 and 2007. The evidence before Collins J from both KCC and Croydon in May 2009 suggested that their practice was to use two social workers. The evidence from KCC was provided by Karen Goodman, who was one of the authors of the Hillingdon guidelines.
  53. It is safe to assume that by the time R(A) came to be decided in May 2009 there was a recognition that the use of two social workers was desirable and such a practice was normal. Nonetheless, as the age assessment in this case demonstrates, it was not universal even in Kent where a large number of such assessments were carried out.
  54. Merton was reviewed by this court in R (Z) v. Croydon London Borough Council [2011] EWCA Civ 59; [2011] PTSR 748. Sir Anthony May P, giving the judgment of the court, noted in [2] that "a process has developed whereby an assessment is undertaken by two or more social workers … who conduct a formal interview." He summarised the effect of Merton in [3]:
  55. "In [Merton] Stanley Burnton J gave guidance in judicial review proceedings on appropriate processes to be adopted when a local authority is assessing a young person's age in borderline cases. The assessment does not require anything approaching a trial and judicialisation of the process is to be avoided. The matter can be determined informally provided that there are minimum standards of inquiry and fairness. Except in clear cases, age cannot be determined solely from appearance. The decision-maker should explain to the young person the purpose of the interview. Questions should elicit background, family and educational circumstances and history, and ethnic and cultural matters may be relevant. The decision-maker may have to assess the applicant's credibility. Questions of the burden of proof do not apply. The local authority should make its own decision and not simply adopt a decision made, for instance, by the Home Office, if there has been a referral. It is not necessary to obtain a medical report, although paediatric expert evidence is sometimes provided in these cases, and there is some difference of view as to its persuasiveness in borderline cases. If the decision-maker forms a view that the young person may be lying, he should be given the opportunity to address the matters that may lead to that view. Adverse provisional conclusions should be put to him, so that he may have the opportunity to deal with them and rectify misunderstandings. The local authority is obliged to give reasons for its decision, although these need not be long or elaborate. This decision and its guidance have led to the development of what is sometimes referred to as a "Merton compliant" interview or process."
  56. The question whether Merton-compliance for the purposes of the policy invariably requires an assessment to be conducted by two social workers is not entirely straightforward, nor is the question when (if that be the case) it became a necessary ingredient of Merton-compliance. Stanley Burnton J supported the desirability of two "workers" making the assessment. His approbation of the Hillingdon guidelines did not amount to a stipulation to that effect. Even then it is unclear whether what was contemplated by Hillingdon was two qualified social workers. The reference in R(Z) to the development of a practice (which on any view is beneficial) was not expressed as being a requirement.
  57. The desirability of two heads rather than one adds confidence that the assessment of age is more likely to be right in an environment where the determination of the young person's age has a profound impact on his life and the decision can be a difficult one. The Home Office policies import the concept of Merton-compliance not only to make sure that the process has been fair, but also to provide confidence that the decision reached by the local authority is right.
  58. A number of decisions at first instance have proceeded on the basis that an assessment conducted by only one social worker is not Merton-compliant. Examples before us include R (AAM) v. Secretary of State for the Home Department [2012] EWHC 2567 (QB) at [94] where the assessment was conducted by a social worker with another worker present to provide support to the young person but who was not involved in the assessment itself; and R (J) v. Secretary of State for the Home Department [2011] EWHC 3073 (Admin) at [13] where the assessment was carried out by a single social worker.
  59. Thus it can be seen that something considered to be desirable if it was practical, developed first into a widespread but not universal practice, before fructifying into a requirement. I understand that to be the universal current understanding of Merton-compliance in this context but the question whether that current understanding is right is not before us.
  60. The age assessment in this case was undertaken in February 2009. Whilst the authorities suggest that the process of movement regarding two social workers from being something desirable to something necessary was well underway by that time I am not persuaded that in February 2009 the term Merton-compliant, as understood by the policies, would have invariably required the presence of two social workers. In consequence, I do not accept the submission of the appellant that the KCC age assessment was not Merton-compliant in that respect.
  61. An Independent Adult

  62. Merton made no mention of an independent adult being present. Neither did the Hillingdon guidelines.
  63. The first reference in the authorities before us to an independent adult in this context is in R(A). Collins J noted at [42] that the practice at Croydon was to advise an applicant "that he may have a person present to support him by observing the interview". That was part of his short summary of the evidence from Croydon of its procedures. He did not explicitly suggest that such a practice was necessary although he did, at [44], in general terms say that "all the safeguards to ensure fairness" should be in place. Four months later in R (NA) v. London Borough of Croydon [2009] EWHC 2357 (Admin) at [50] Blake J took that general reference in R(A) to include an invitation to have an independent adult present and regarded it as an aspect of "best practice". He concluded that not every departure from good practice would result in unfairness, but that in the context of the facts in NA that aspect of the Croydon procedure was important.
  64. Both these cases follow by some months the age assessment conducted by KCC. Although the evidence is silent on whether the appellant was made this offer (rather than that an independent adult was not in fact present) case law had not at the time identified it as necessary.
  65. The case law developed. The issue was confronted in R (Z). That case was in part concerned with the circumstances in which permission should be given to challenge an age assessment in judicial review proceedings and substantially with the question whether a proper opportunity had been given to the young person to meet the interviewers' concerns. However, one of the questions raised in the appeal was "whether the local authority should in fairness offer the young person the opportunity to have an appropriate adult present at the age assessment interview" [18]. This court's conclusions on that issue were,
  66. "23. … [I]t is generally accepted in a variety of contexts that, where children or other vulnerable people are to be interviewed, they should have the opportunity to have an appropriate adult present. Reference may be made in this respect to the Police and Criminal Evidence Act Code C at paragraph 11.17; R (DPP) v Stratford Youth Court [2001] EWHC 615 (Admin) at paragraph 11; and the Home Office Guidance for Appropriate Adults. Apparently Croydon do adopt this procedure in many of their cases, but they did not make the offer at the assessment on 4th September 2009. However, the appellant's key worker was present at the reviewing interview on 16th April 2010. The requirement does not feature in their written procedure, or in the attached form. In an age assessment case, the young person will at least claim to be a child. The present appellant did so and at the time it was agreed that he was. Additionally he was known to have mental health problems. In R (NA) v London Borough of Croydon, Blake J recognised at paragraph 50(1) the need in that case for the claimant to be asked whether he wanted to have an independent adult present.
    25. In our judgment, the appellant should have had the opportunity to have an appropriate adult present, and the fact that he was not given this opportunity contributes to our decision whether he should be given permission to proceed."
  67. Thus Z confirmed that an opportunity should be given to a young person to have an independent adult present at an age assessment interview. Judgment was given in Z in February 2011. The need to provide an opportunity for an independent adult to be present during an age assessment interview was by then a required part of the process.
  68. I have indicated that the evidence does not support the proposition that the appellant was not offered the presence of an independent adult. Even if he was not, I do not accept that by February 2009 the term Merton-compliance in the EIG and Age Assessment policies was understood to include this requirement.
  69. No opportunity to respond to adverse conclusions of those who had dealt with the appellant

  70. I have touched upon the paucity of evidence on this matter. The KCC material states that the assessment was Merton-compliant. I would accept that the appellant should have been made aware that others thought he was 18 or over because that would very probably have been a matter which informed the conclusion of the assessors. Merton requires that the young person should be given the opportunity to address matters that have led to the assessors to form the view that his account of being under 18 is untrue. This feature was at the heart of Merton itself and so if the assurance from KCC meant anything, it would suggest that a proper opportunity was given to the appellant to meet the concerns of those conducting the assessment, including that a range of those who had been caring for him had come to the conclusion that he was over 18. The evidential foundation for suggesting that this aspect of Merton-compliance was overlooked is altogether too weak to enable a finding that there was non-compliance.
  71. In summary, in respect of the three features of non-compliance with Merton identified in the grounds, I conclude:
  72. i) Whilst the assessment was conducted by a social worker and support worker, rather than two social workers, in February 2009 the involvement of two social workers was not a requirement of Merton-compliance.

    ii) Similarly, the requirement to offer the presence of an independent adult had not by then become a requirement of Merton-compliance. In any event the evidence is silent on this point. The complaint made in the grounds is that an independent adult was not in fact present.

    iii) In the face of the assertion by KCC in the contemporary material that the assessment was Merton-compliant and the absence of any evidence from the appellant on the question of alerting him to the adverse conclusions of those who had worked with him, this criticism is not established.

    It is for these reasons that I am unpersuaded that the age assessment carried out in February 2009 by KCC failed to comply with Merton as understood by the relevant policy.

    The application of the policy in this case

  73. The appellant's argument does not ultimately depend upon whether the assessment was or was not Merton-compliant. Whether or not it was in fact compliant, the appellant contends that the assessment was not "available" to the Home Office (alternatively neither was a sufficient summary) with the consequence that detention was not compatible with the EIG, in particular paragraph This raises the issue whether the Home Office must have a full copy of the assessment before deciding to take any step (including detention) in reliance upon it.
  74. The appellant further contends that even if possession of the full age assessment was not a requirement of the policy, the detail provided by KCC in February 2009 was inadequate to enable the Home Office to satisfy itself that the assessment was Merton-compliant.
  75. In AA (Afghanistan) the Supreme Court read the Assessing Age policy and EIG together when considering whether detention was lawful. In the course of his judgment Lord Toulson JSC considered AAM. He disapproved it in one respect, namely its conclusions on section 55 of the Borders, Citizenship and Immigration Act 2009, but there was no criticism of the balance of the judgment of Lang J. Indeed it received the approbation of the Supreme Court: see in particular [31] which referred to her Ladyship's approach to the interpretation of the policy set out at [107] and following of her judgment. On that she concluded:
  76. "107. The Defendant submitted that, on a proper interpretation of the policy, an immigration officer was required to make an independent evaluation and exercise his judgment, when deciding whether or not the criteria in paragraph are met. Although the wording might appear to impose a pre-condition that a Merton-compliant age assessment has been carried out, the policy should not be construed strictly as if it was a statute. Having regard to the other criteria set out in the paragraph, which plainly are evaluative in nature, and taking into account the purpose of this section of the policy, and the related Age Assessment guidance issued by UKBA, it is clear that the immigration officer is expected to carry out an evaluation of the age assessment and satisfy himself both that it is Merton-compliant and that its conclusion on age is reliable. As with any other judgement based upon evidence, there remains a risk that it will turn out to be factually incorrect, as in this case.
    108. I accept the Defendant's submissions. On my interpretation of the policy, under paragraph, the immigration officer is required to make an evaluation of the evidence, and form a judgement, applying one or more of the three criteria. This is the case even under criterion 2, where there has been a local authority assessment, as is apparent from the UKBA guidance on 'Age Assessment', which requires officers to consider whether or not the age assessment is reliable and Merton-compliant:
    "5.2 Case owners should give considerable weight to the findings of age made by local authorities, recognising the particular expertise they have through working with children. In cases where the local authority's assessment is the only source of information about the applicant's age their assessment will normally be accepted as decisive evidence.
    Nevertheless, case owners should carefully consider the findings of the local authority and discuss the matter with them in appropriate circumstances, such as where the findings are unclear; or do not seem to be supported by evidence; or it appears that the case is finely balanced and the applicant has not been given the benefit of the doubt; or that it appears the general principles set out in the Merton judgment were not adhered to."
    109. In R (J) v Secretary of State for the Home Department [2011] EWHC 3073 (Admin) Coulson J. found that the age assessment in that case was patently inadequate and not Merton-compliant. He held that the immigration officer had "an independent obligation … to consider that assessment and to reach her own conclusion as to whether or not it was Merton compliant" (at [31]). The conclusion that it was Merton-compliant was "an unreasonable and irrational conclusion" (at [32]).
    110. In my judgment, the approach taken by Coulson J. was correct in law. On an objective interpretation of the policy, the immigration officer is required to evaluate the evidence and form a judgment under the criteria in paragraph In doing so, he is subject to the supervisory jurisdiction of the court on traditional public law grounds. The fact that, in this case, the local authority's age assessment was not Merton-compliant did not, of itself, invalidate the immigration officer's decision. Whether or not there was in existence a Merton-compliant age assessment was not an objective fact on which there could only be one correct answer (as in the case of A). The immigration officer had to make a judgment on whether or not the age assessment was Merton-compliant and this was a question upon which views might well differ. …
    111. … In the same way as I have described above, in relation to compliance with the Merton standards, it is for the immigration officer to go on to satisfy himself , in accordance with the 'Age Assessment' guidance, that there is reliable evidence that the person is 18 years or over and therefore should not be treated as a child."
  77. In both AAM and R (J) the Home Office had the full assessment. In AAM it was common ground that the age assessment was not Merton-compliant and in R (J) the judge concluded not only that the age assessment was not Merton-compliant but also that it was obviously deficient, to the extent that nobody considering it could have concluded that it was Merton-compliant. Neither case considered the question whether before detaining a person who disputes that he is an adult in reliance on an age assessment, it is necessary to have a full copy.
  78. Miss Harrison's argument is that "available" in this context means "has a copy of". I am unable to accept that submission. The ordinary meaning of the word "available" does not necessarily connote that the thing which is available is in the immediate possession of someone to whom it is available. It generally means "obtainable" or "accessible", if required. In this court we are told frequently that a document not found in our papers is available if the court wishes to see it. Furthermore, to read the word "available" in the way suggested by the appellant would be inconsistent with paragraph 5.3 of the Age Assessment policy which, whilst commending the practice of obtaining a full copy of the assessment, contemplates making decisions on age without it, but nonetheless having regard to its conclusions. That is consistent with the underlying reality that disclosure of the full assessment was often not made without the consent of its subject. Furthermore, paragraph itself draws a distinction between an age assessment being "available" and one being "produced" by a person claiming to be under 18 whose appearance very strongly suggests he is significantly older.
  79. We heard this appeal at the same time as the appeal in VS v. The Home Office [2014] EWHC 2483. In his judgment the deputy judge, Simon Picken QC, came to the same conclusion, see in particular [128].
  80. The 2015 Age Assessment Joint Working Guidance now in force provides a "model information sharing proforma" which is designed to make clear whether an assessment is Merton-compliant, without provision of the full assessment. It provides information which enables the Home Office to make an independent judgement whether the assessment is Merton-compliant, as it is required by the policy to do. The Home Office cannot accept an assessment as Merton-compliant (in the sense understood in EIG) if there are clear indications to the contrary. That said, it is not the function of the Home Office to police the exercise by local authorities of their statutory obligation to assess the age of an unaccompanied asylum seeker for the purposes of the Children Act 1989 in the sense of acting as a surrogate court of review. The exercise is a less intense one. As the Assessing Age guidance makes clear, the role of the age assessment in the hands of the Home Office is as important evidence in its own independent function of determining whether an applicant for asylum is to be treated as an adult.
  81. The arguments which have been joined in this appeal should not arise in the future given this new guidance.
  82. Ordinarily, the question whether an applicant for asylum is under 18 is one determined early in the process. It is in that context that an age assessment will be undertaken by a local authority and its results provided to the Home office. VS provides an example. By contrast, this case is unusual in that the appellant relies upon its deficiencies to prevent his detention prior to removal when he has consistently been treated as an adult by the Home Office for two and a half years.
  83. By the time the appellant sought discretionary leave in July 2011 and resisted removal in October 2011, the KCC age assessment was part of the history which had been taken into account in deciding to treat the appellant as an adult when his asylum claim was determined. It had been taken into account by the immigration judge when he determined the appeal and decided that the appellant was an adult. It had been taken into account by Cardiff when they formally assessed the appellant as being over 18, but in compromising the judicial review proceedings they decided not to stand by that assessment.
  84. Unlike in the case of VS, the Home Office did not justify the detention of this appellant on the basis that there had been a Merton-compliant age assessment in February 2009 saying he was an adult. The justification for detention as an adult was because the Home office was not persuaded to go behind the finding of the immigration judge to that effect.
  85. In VS it was necessary to consider, in a claim involving detention at an early stage, whether the Home Office was entitled to conclude that a Merton-compliant age assessment was available. Only if that were the case would the detention be justified by EIG paragraph For the reasons set out in the judgment of Black LJ between paragraphs [42] and [46] it could not come to that conclusion. As in this case, the full assessment had not been provided to the Home Office. A similar results form had been provided which identified the factors taken into account in reaching the assessment, but without providing any reasons properly so called. As Black LJ explains, absent the full local authority age assessment, the Age Assessment policy requires at least the conclusion, an assurance that the assessment was Merton-compliant and short reasons.
  86. The document provided to the Home Office by KCC in this case contained its conclusion and the assurance that the assessment had been carried out in accordance with Merton. It identified the features that had been taken into account in reaching the conclusion, and to that extent confirmed that it traversed much of the ground identified by Stanley Burnton J in Merton itself. What it did not do was provide reasons for the conclusion and thus for rejecting the appellant's contention that he was under 18. The only 'reason' vouchsafed by the document was that his appearance strongly suggested that he was over 18. Yet that is not an adequate reason for the purposes of Merton-compliance.
  87. Before considering compliance with paragraph, there is an anterior question in determining whether the detention of the appellant in September 2011 was lawful. For the purposes of paragraph, at the time that he was taken into custody, was the appellant "a person claiming to be under 18"? Was he someone whose age was any longer in dispute? When he was detained he was not detained as a young person but as an adult. That was because he had been treated as an adult in the asylum process on the strength of the KCC assessment, which he did not challenge, and on the strength of which Cardiff also treated him as an adult. His treatment as such had been upheld by the First-tier Tribunal and maintained in the decision of July 2011 when the developments in Cardiff were considered by the Home Office.
  88. That decision in July 2011 amounted to a fresh determination for the purposes of the Age Assessment policy that the appellant was an adult. In the absence of any indication from the appellant following that determination that he continued to dispute that he was over 18, I do not consider that had any application to the decision to take him into custody on 27 September 2011 pending removal. It would be perverse to require the Home Office to accept the appellant as being under 18 for the purposes of detention pending removal when it had nearly three months earlier again determined him to be over 18 and there was no hint that the decision was being challenged. When he was detained the Home Office was entitled to proceed on the basis that he was an adult. The position would be the same had the appellant promptly challenged the decision of 5 July 2011 and been refused permission to apply for judicial review. If then taken into custody he could not assert that he was disputing his age when his challenge to the decision that he was an adult had failed. He cannot be in a better position having not challenged the decision of 5 July 2011, than having challenged it and failed.
  89. I have noted Miss Harrison's acceptance of the proposition that the appellant's detention and removal following the decision of the immigration judge (and exhaustion of his appeal rights) would have been lawful if no new information had come to light. That would be for the same reason – his age was no longer in dispute. The issue at that stage had been settled.
  90. I accept that the position changed when the Home Office received the letter of 7 October 2011 which again put his age in issue, albeit without directly seeking to challenge the July decision. Had the Home Office maintained detention on the basis that the KCC age assessment was Merton-compliant they would be in difficulty for the reasons I have given. The document from KCC with which they were provided in February 2009 did not provide the reasons in accordance with the Assessing Age policy necessary for the Home Office to come to that conclusion.
  91. Both the letters of 5 July and 9 October 2011 maintain the decision relating to the appellant's age by reference to the judicial determination of the immigration judge and not the KCC assessment. That approach was in accordance with the Assessing Age policy. The two policies sit together. Mr Tam submits that it would make a nonsense of the policies for there to be a lawful determination that a person is over 18, applying Assessing Age, but the same person could not be detained pending removal save as a child. In that he must be right. In my judgment the answer to that possible contradiction lies within paragraph itself. It refers to "credible and clear documentary evidence" that a person is 18 or over. Obvious instances of such evidence would include medical or educational records recording a date of birth or letters to or from the young person which make clear that he is 18 or over. In the circumstances of this case, a judicial determination that concludes that a person is over 18 is, for the purposes of "credible and clear documentary evidence" to that effect.
  92. For these reasons I conclude that the detention of the appellant impugned in these proceedings was lawful. At the time he was taken into custody his age was not in dispute. The Home Office were entitled to treat him as an adult and at all times his detention was lawful because the Home Office were entitled under the policy to continue to rely upon the judicial determination that he was over 18.
  93. Were I wrong in these conclusions, I would hold that the Home Office was not entitled to conclude that the document provided to them by KCC in February 2009 was sufficient to show that the age assessment was Merton-compliant. However, for the reasons discussed above when considering the appellant's pleaded criticisms of the age assessment, had the Home Office officials engaged in a discussion with KCC to explore the position, as the Age Assessment policy contemplates, it is very likely that they would have been satisfied that it was. In those circumstances whilst the detention would have been unlawful, applying Lumba only nominal damages would be payable.
  94. The "Fresh Claim"

  95. As the appellant correctly submits, a fresh claim for asylum or humanitarian protection made pursuant to paragraph 353 of the Statement of Changes in Immigration Rules need not be made in any particular form. The question is whether a communication contains submissions which amount to representations advanced on asylum or human rights grounds. The rule was considered by this court in R (AK (Sri Lanka)) v. Secretary of State for the Home Department [2010] 1 WLR 855 where Laws LJ explained at [20] that such representations could be 'short or long, reasoned or unreasoned'. The question for a court in a judicial review challenge when the Home Office has failed to treat a communication as representations within the meaning of paragraph 353 is whether a reasonable Secretary of State "might apprehend that what was put before her did not amount to further submissions": [22]. It is a Wednesbury review.
  96. In this case the Home Office did not treat the letter from the appellant's solicitors of 7 October 2011 as fresh submissions within the meaning of paragraph 353, because it did not appreciate that is what they were. Was that conclusion open to it?
  97. I have noted that the letter of 7 October was a formal pre-action protocol letter which challenged the detention and removal of the appellant. The alleged unlawful removal was expressly tied to his achieving the date he identified as his 18th birthday. There was nothing in the letter which gave any hint that the asylum or human rights claims considered by the judge were being revisited. Indeed, in suggesting that it would be unlawful to remove the appellant before his 18th birthday, and thus implicitly lawful thereafter, there was a positive indication that the asylum and human rights claims were not being prayed in aid. If they were, his removal would arguably have been unlawful whenever it might occur.
  98. There was nothing in the evidence filed on behalf of the appellant to suggest that when the solicitors wrote the letter of 7 October they intended or understood it to be advancing a fresh claim. Miss Harrison was given the opportunity to indicate the position on instructions but said that she was not able to suggest that it was intended as further submissions for the purpose of paragraph 353. It would be rather odd to condemn a failure by the recipient of a letter to appreciate it contained a fresh claim as irrational, when its writer took the same view. She could point to nothing in the letter which raised any asylum or human rights issues. Her submission was that all claims for discretionary leave to remain until 18 on the ground that the applicant is a minor carry an implied human rights or asylum claim. I am unable to understand why that should be so. The policy which provides for the grant of such discretionary leave proceeds on the basis that the other claims have not succeeded.
  99. In my judgment, it is clear that the Home Office was entitled to consider that the letter of 7 October did not contain further submissions for the purposes of paragraph 353.
  100. Did the Home Office misunderstand the finding by the First-tier Tribunal that the appellant was an adult in February 2009?

  101. The appellant's contention is that the refusal of the Home Office to treat him as being under 18 in its letter of 9 October 2011 was unlawful because its author suggested that she was "bound" by the decision of the immigration judge.
  102. Mr Tam readily accepted that if the Home Office considered itself "bound" by the decision of the immigration judge to reject the appellant's argument that he was in fact under 18, that would amount to an error of law. Such a decision carries weight and, as the Age Assessment guidance shows, will be followed absent a good reason. But it does not formally bind decision makers. On this argument the deputy judge said at [31]:
  103. "In my judgment, Miss Leventhal is correct in her submission that the letter of 9 October 2011, which enclosed the earlier decision letter, should not be read as indicating that the defendant had treated her discretion as fettered, or to be applied otherwise than in accordance with her own policy guidance, … It is manifest from the decision letter of 5 July 2011 that she expressly considered whether, in the light of the new material provided, she should depart from the conclusions of the immigration judge and determined that she should not."
  104. I agree. The author of the letter of 9 October used the word "bound" as shorthand for the more expansive "there is no reason to depart from the Immigration Judge's finding" found in the letter of 5 July. She said as much when she started the material sentence with the words "As stated in the UKBA letter of 5th July."
  105. Conclusion

  106. In view of my conclusions on each of the grounds advanced by the appellant, I would dismiss the appeal.
  107. Lord Justice Tomlinson:

  108. I agree.
  109. Lady Justice Black:

  110. I also agree.

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