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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> ZS (Afghanistan), R (on the application of) v Secretary of State for the Home Department  EWCA Civ 1137 (06 November 2015)
Cite as:  EWCA Civ 1137
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISON, ADMINISTRATIVE COURT
ROBIN PURCHAS QC (sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE BURNETT
| The Queen on the Application of ZS (Afghanistan)
|- and -
|Secretary of State for the Home Department
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 :
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?
i) Observation of interaction with peers;
ii) Family and social history;
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.
"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."
"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.
The Detention Claim
"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  EWCA Civ 1238 at  described as a "pragmatic and purposive construction": R (Das) v. Secretary of State for the Home Department  1 WLR 3538, per Beatson LJ at .
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  EWCA Civ 597. Richards LJ stated at  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  EWCA Civ 999 at . That was the approach followed by the Supreme Court in R (AA (Afghanistan)) v. Secretary of State for the Home Department  1 WLR 2224;  UKSC 49.
"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:
- there is credible and clear documentary evidence that they are 18 years of age or over;
- a full "Merton-compliant" age assessment by social services is available stating that they are 18 years of age or over. (Note that assessments completed by social services emergency duty teams are not acceptable evidence of age);
- their physical appearance/demeanour very strongly indicates that they are significantly over 18 years of age and no other credible evidence exists to the contrary.
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:
- we do not accept that the applicant is a child and the reason for this (for example, visual assessment suggests the applicant is 18 years of age or over), and
- in the absence of acceptable documentation or other persuasive evidence the applicant is to be treated as an adult.
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."
"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 decision maker must explain to the applicant the purpose of the interview.
- Except in clear cases, the decision maker cannot determine age solely on the basis of the appearance of the applicant.
- In general, the decision maker must seek to elicit the general background of the applicant, including the applicant's family circumstances and history, educational background, and the applicant's activities during the previous few years. Ethnic and cultural information may also be important. If there is reason to doubt the applicant's statement as to their age, the decision maker will have to make an assessment of the applicant's credibility, and he will have to ask questions designed to test the applicant's credibility.
- If the decision maker forms the provisional view that the applicant is lying, the applicant must be given the opportunity to address the matters that have led to that view.
- Adequate reasons must be given for a decision that an applicant claiming to be a child is not a child (though they need not be long or elaborate).
- Cases vary, and the level of inquiry required in one case may not be necessary in another.
- A local authority may take into account information obtained by the Home Office, but it must make its own decision, and for that reason must have adequate information available to it."
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.
"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."
"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)
Two Social Workers
"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."
An Independent Adult
"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  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."
No opportunity to respond to adverse conclusions of those who had dealt with the appellant
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
"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 126.96.36.199. 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 188.8.131.52, 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  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 ). The conclusion that it was Merton-compliant was "an unreasonable and irrational conclusion" (at ).
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 184.108.40.206. 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."
The "Fresh Claim"
Did the Home Office misunderstand the finding by the First-tier Tribunal that the appellant was an adult in February 2009?
"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."
Lord Justice Tomlinson:
Lady Justice Black: