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||Neutral Citation Number:  EWHC 1295 (Admin)
||Case No: CO/5855/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||26 May 2017
B e f o r e :
JOHN HOWELL QC
(Sitting as a Deputy High Court Judge)
|| The Queen (on the application of SS)
||- and -
||(1) Secretary of State for the Home Department
(2) Oxfordshire County Council
Ms Irena Sabic (instructed by Duncan Lewis) for the Claimant
Ms Saara Idelbi (instructed by Government Legal Dept.) for the First Defendant
Mr David Bedenham (instructed by Oxfordshire CC Legal Services) for the Second Defendant
Hearing dates: 2,3 and 5 May 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
John Howell QC :
- This is a claim for judicial review of two, possibly interrelated, matters: the Claimant's detention by the Secretary of State for the Home Department and the assessments of his age conducted by Oxfordshire County Council for the purpose of ascertaining whether he might be eligible for assistance under Part III of the Children Act 1989.
- The claim raises some questions of general application about detention in order to secure the transfer of an asylum claimant to another State under Regulation (EU) 604/2013 of the European Parliament and of the Council establishing criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person ("Dublin III").
- The Claimant is an Afghan national. On September 15th 2015 he was detained after he had been encountered having entered the United Kingdom concealed in the back of a train. He claimed asylum and that he was aged 16. A Chief Immigration Officer considered, however, that the Claimant's appearance and demeanour strongly suggested that he was over the age of 18 and decided, therefore, as permitted by the Secretary of State's policy, that the Claimant should be treated as an adult. He was fingerprinted and photographed. A Eurodac search also revealed on September 15th 2015 that the Claimant had claimed asylum in Bulgaria on May 29th 2015 (where his date of birth was recorded as May 29th 1997); that he had then entered Hungary illegally on June 4th 2015 and claimed asylum there on the following day; and that he had again claimed asylum in Germany on July 20th 2015 (where his date of birth was recorded as being June 18th 1997).
- Thereafter asylum screening and travel history interviews were conducted with the Claimant on September 17th and September 19th 2015. On September 27th 2015 the Claimant was informed that the application of Dublin III to his case was being considered and that a formal request had been made to Bulgaria for the transfer of his asylum claim to that country. On September 30th 2015, in response to that request, Bulgaria claimed that Hungary was the State responsible for assessing his asylum claim. The Secretary of State then, on October 15th 2015, asked Hungary and Germany to accept his transfer. On October 16th 2015 the Claimant's solicitors wrote to Kent Social Services asking them to undertake an assessment of the Claimant's age. It appears that request was forwarded to Oxfordshire County Council within whose area the Claimant was by then being detained at Campsfield Detention Centre. On October 27th 2015 Germany accepted responsibility for assessing the Claimant's asylum claim. On November 1st 2015 the Claimant's claim to asylum in the United Kingdom was refused and certified on safe Third Country Grounds under the Asylum and Immigration (Treatment of Claimants etc) Act 2004. On November 20th 2015 two social workers employed by Oxfordshire County Council, Ms Caroline Dodd and Ms Fiona Harrod, carried out an age assessment concluding that the Claimant was "very clearly over 18 years old". On November 27th 2015 directions for the Claimant's removal to Germany were set for November 30th 2015. They were deferred following receipt of this claim for judicial review. The Claimant was released from detention as result of the making of that claim on December 12th 2015.
- After permission to make the claim for judicial review was refused on the papers by Lavender J on February 17th 2016, the Claimant renewed his application for permission and his solicitors obtained an assessment of his age from two social workers, Ms Angeline Seymour and Ms Hannah Prince, ("the Seymour/Prince report"). They concluded that, as at March 23rd 2016, the Claimant's age was between 17 and 18. In the light of that report Oxfordshire County Council arranged for two other of their social workers, Ms Katie Thrussell and Ms Lucy Johnson, to conduct a full age assessment. In their assessment completed on May 25th 2016 ("the Thrussell/Johnson assessment"), they concluded that the Claimant was an adult and that they were confident then he was then 20 although he could possibly be older. They gave him a date of birth on January 1st 1996. The Claimant's grounds were then amended, with the Court's permission, on September 14th 2016 to impugn his detention by the Secretary of State and the County Council's age assessments.
- Permission to make this claim was granted by Turner J at a renewed oral permission hearing on December 6th 2016.
THE CLAIM THAT THE CLAIMANT WAS DETAINED UNLAWFULLY
- The Claimant contends that his detention was unlawful and claims damages in respect of it. Since no amount had been claimed as damages, I directed that the hearing would be limited to determining whether the Secretary of State is liable in principle.
- Under article 8.4 of Dublin III, in the absence of a family member, a sibling or relative in another Member State, the State responsible for determining an application for international protection by an unaccompanied minor, who has made such an application in more than one Member State, is the Member State in which that minor is present. Against that background the Claimant contended in his Amended Grounds that "as an age disputed child, [his] detention was unlawful" and that "whether a person is a minor is, in domestic law, a matter for judicial assessment rather than being solely a matter of opinion of the Secretary of State subject to review on public law grounds."
- As these contentions appeared to me to raise a question of the power or powers under which the Claimant had been detained, I indicated before the hearing began that I wished to know whether or not the parties contended that the Claimant was detained under article 28 of Dublin III (which allows for detention in order to secure transfer procedures under that Regulation) and, if so, on what basis its legality fell to be reviewed. On the first day of the hearing, having canvassed the issue with counsel, I asked the parties to submit skeleton arguments to address the question whether the Claimant fell within article 28 and, if so, what the consequences of that were in this case. Both Ms Sabic, who appeared on behalf of the Claimant, and Ms Idelbi, subsequently submitted skeleton arguments and I also heard argument on the issues. In the event Ms Sabic applied to amend her grounds to contend in addition to her pleaded grounds that the Claimant's detention was unlawful as it was contrary to article 28 of Dublin III. Ms Idelbi opposed that application. She submitted that it would be unfair if the Claimant could now rely on a case based on article 28 having only raised the point at a very late stage and that, had such a case been raised, the Secretary of State might have submitted further evidence or argument to address it. Having heard argument on the legal issues in any event, I reserved judgment on whether to permit that amendment.
- After the hearing had finished, Ms Idelbi applied by email for the issue to be stayed behind the case of Khaled v Secretary of State for the Home Department  EWHC 1394 (Admin),  1 WLR 4243 ("Khaled"), in which there is an outstanding application to the Court of Appeal for permission to appeal or alternatively for "three to four months" to enable the Secretary of State to provide further written submissions once she has "refined her approach to this question" in the light of the decision of the Court of Justice in C-528/15 Policie CR v Salah Al Chodor (2017) March 15th, EU:C:2017:213, ("Al Chodor"). Ms Idelbi had already addressed both of these cases in her submissions to me. Ms Sabic opposed any such delay.
- In considering the application for permission to amend and Ms Idelbi's request for the issue to be stayed I have borne in mind the overriding objective of dealing with cases justly and at a proportionate cost and that this involves (among other matters) ensuring that any case is dealt with expeditiously and fairly.
- Ms Sabic pointed out that, when renewing the Claimant's application for permission to claim judicial review, the Claimant had placed reliance on article 28 of Dublin III but, so she informed me, that had not been replicated in the Amended Grounds in the light of the decision in Khaled. That decision needs to be viewed now, however, in the light of Al Chodor. While this may explain why a case based on article 28 was not pursued in the Amended Grounds, it does not alter the fact that such a case was raised, and permission sought, only at a very late stage. But the mere fact that permission is sought to amend at a late stage does not necessarily mean that it should be refused.
- Ms Idelbi submitted, however, that it would be unfair to the Secretary of State for permission to be given.
- In my judgment the Claimant's case can be put on the basis of the facts put forward by the Secretary of State. It appears to me to be plain on that basis that the Claimant was detained as from September 15th 2015 in order to secure transfer procedures under Dublin III. On September 15th 2015 the Claimant was served with a notice (IS96) stating that he was liable to be detained as there was a reasonable suspicion that he was liable to removal from the United Kingdom given that he was an illegal entrant (having admitted arriving in the United Kingdom concealed in the back of a train). He was also notified (in form IS.91R) that he was to be detained as there was insufficient information to decide on whether to grant temporary admission or release (given that no satisfactory evidence had been provided of his identity, nationality or lawful basis to be in the United Kingdom and that he had used deception in a way that led the Immigration Officer to consider that he was likely to continue to deceive). It was stated in the Secretary of State's Detailed Grounds of Defence (twice), as well as in Ms Idelbi's skeleton argument on her behalf, that, after receiving the results of the Eurodac search, on September 15th 2015, "as a result of [him] being assessed as being over the age of 18 and it being reasonably likely that the Claimant would be accepted by a Member State and so removal was reasonably likely, the Claimant was detained". That plainly asserted that in effect the Claimant's detention was in order to secure transfer procedures in accordance with Dublin III to a country in which he had previously claimed asylum.
- Ms Idelbi submitted, however, that, had a case been advanced based on article 28 of Dublin III, it was possible that a "more nuanced" statement would have been made about the reasons for the Claimant's detention. Ms Idelbi did not say what that might have been. The Secretary of State had, of course, a duty of candour: a defendant should, in its detailed grounds or evidence, identify any relevant facts, and the reasoning, underlying the measure in respect of which permission to apply for judicial review has been granted: see Tweed v Parades Commission for Northern Ireland (Northern Ireland)  UKHL 53,  1 AC 650, at  and . In this case in addition (as I have mentioned) the claim in respect of unlawful detention was originally based in the Amended Grounds on the basis that the Claimant was being detained for transfer under Dublin III (which, it was contended, could not be done as he was "age-disputed" or in fact a child). Accordingly, the fact that the Claimant was being held for that purpose was part of the basis on which the claim that his detention was unlawful was made. Had that not been correct, the Secretary of State ought to have said so. In response to the suggestion that a "more nuanced" account might have been given, I invited Ms Idelbi to inform me subsequently, if such an account was to be provided, how long it would take to do so. She did not subsequently respond to that invitation. In the circumstances I consider that the Claimant is entitled to rely on what the Secretary of State asserted in her detailed grounds to have been the purpose of his detention.
- In the event I received detailed skeleton arguments and heard full oral argument about the relevant legal issues. I do not consider that the Secretary of State has been materially prejudiced in that respect.
- In all the circumstances I do not consider that justice would be done by refusing the Claimant permission to amend his grounds to contend that his detention was contrary to article 28 based on the facts relating to the Claimant's detention contained in the Defendant's Detailed Grounds of Defence.
- In reaching that conclusion I have also taken into account the application for determination of the issue raised to be stayed behind Khaled or, alternatively, for three to four months to enable the Secretary of State to "refine her approach" and make further submissions.
- There is (as I understand it) currently an outstanding application to the Court of Appeal for permission to appeal against the decision in Khaled. Ms Idelbi informed me that the Court of Appeal had invited submissions on how that application, and an application for permission to appeal against the decision in another case, were to be dealt with. There is (so far as I am aware) no certainty, and the Secretary of State has provided me with no estimate of, when such litigation may be concluded. It appears from Ms Idelbi's application that the Secretary of State considers that it will be three to four months before her approach is sufficiently refined even to address the issues raised in these and other related cases. In my judgment it is impracticable and undesirable (given the need to review any deprivation of liberty promptly) to put every case that impugns any detention in order to secure transfer procedures in accordance with Dublin III on hold until such litigation may be finally determined (which may itself involve appeals to the Supreme Court). Courts may have to deal with such issues as best they can in any event. Further the Claimant is an asylum-seeker whom the Secretary of State wishes to transfer to Germany. The Secretary of State has undertaken not to remove him from the United Kingdom until the resolution of his claim for judicial review. It is in the public interest and his that his asylum claim should be determined sooner, rather than later, in the relevant State and any transfer for that purpose effected as soon as possible (an aim reflected, for example in article 29 of Dublin III). As I have mentioned, I have already had legal submissions on the issues. In my judgment delay is not consistent with the objective of dealing with claims expeditiously or in the public interest. Accordingly I do not propose to stay determination of this matter.
(ii) the legal framework
a. the basic scheme of Dublin III so far as relevant
- Dublin III is one of the components of the Common European Asylum Policy ("CEAS"). It is the latest European Regulation that contains criteria and mechanisms for identifying which Member State is responsible for determining an application for international protection by a third country national or stateless person and it provides for transfer of the asylum seeker (if necessary) to the member State identified as responsible for processing that application.
- The process for determining the Member State responsible starts "as soon as an application for international protection is first lodged with a Member State": see article 20.1 and 20.2. As soon as such an application is lodged, the State determining which is the responsible State must inform the applicant of the application of Dublin III, including a number of specific matters arising under it including certain rights that the applicant has (for example to challenge a transfer decision), and it must normally conduct a personal interview with the applicant in a timely manner: see articles 4 and 5.
- The criteria to be applied to determine which State is responsible are contained in Chapter III of Dublin III. There are special criteria for identifying the responsible Member State where the applicant is an unaccompanied minor, that is to say an applicant below the age of 18 years, contained in Article 8. Unsurprisingly they identify as responsible States where the minor has a family member, a sibling or a relative if that is what the minor's best interests require. However article 8.4 provides that:
"In the absence of a family member, a sibling or a relative as referred to in paragraphs 1 and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interests of the minor."
This does not refer to the State where an application for international protection was first lodged. The State responsible for determining an application for international protection by such an unaccompanied minor who has made such applications in more than one Member State is the Member State in which that minor is present: cf C-648/11 R (MA, BT and DA) v Secretary of State for the Home Department (2013) EU:C:2013:367,  1 WLR 2961. In other cases the responsible State is obliged to take charge or take back an applicant who has lodged an application with it previously in certain circumstances: see articles 18, 19, 21-25.
- In order to guarantee effective protection of the rights of the persons concerned, Dublin III incorporated legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to responsible Member States in accordance with Article 47 of the Charter of Fundamental Rights: see recital (19) to Dublin III. Article 26 provides inter alia
"1. Where the requested Member State accepts to take charge of or to take back an applicant...., the requesting Member State shall notify the person concerned of the decision to transfer him or her to the Member State responsible and, where applicable, of not examining his or her application for international protection. ...
2. The decision referred to in paragraph 1 shall contain information on the legal remedies available, including on the right to apply for suspensive effect, where applicable, and on the time limits applicable for seeking such remedies and for carrying out the transfer...."
- Article 27.1, that deals with remedies, provides that:
"The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.
- The Grand Chamber found, in C-63/15 Ghezelbash v Staatssecretaris van Veiligheid en Justitie (2016) EU:C:2016:409,  1 WLR 3969, the scope of the effective remedy to be provided under article 27.1 in relation to a transfer decision was not as limited as it had previously been found to be in respect of an appeal under article 19 of Dublin II (in C-394/12 Abdullahi v Bundesasylamt (2013) EU:C:2013:813,  1 WLR 1895. It covers the incorrect application of one of the criteria in Chapter III of the Regulation and must cover questions of both fact and law. As Advocate-General Sharpston stated in paragraph 83 of her Opinion in that case, the right to an effective remedy in Article 47 of the Charter corresponds to the rights guaranteed by article 13 of the ECHR. In A1 v Advocate General for Scotland  CSOH 95,  SLT 507, Lady Rae held that judicial review was capable of providing the effective remedy required.
b. provisions governing detention under Dublin III
- Dublin II contained no provisions governing detention in order to secure transfer procedures in accordance with that Regulation. Recital (20) to Dublin III provided, however, that:
"The detention of applicants should be applied in accordance with the underlying principle that a person should not be held in detention for the sole reason that he or she is seeking international protection. Detention should be for as short a period as possible and subject to the principles of necessity and proportionality. In particular, the detention of applicants must be in accordance with Article 31 of the Geneva Convention. The procedures provided for under this Regulation in respect of a detained person should be applied as a matter of priority, within the shortest possible deadlines. As regards the general guarantees governing detention, as well as detention conditions, where appropriate, Member States should apply the provisions of Directive 2013/33/EU also to persons detained on the basis of this Regulation."
- Article 28 provides inter alia that:
"1. Member States shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation.
2. When there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively.
3. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out."
- The remainder of paragraph 3 of article 28 adjusts other provisions governing the timing of a take charge or take back request and transfer "where a person is detained pursuant to this article".
- Paragraph 4 of article 28 provides that:
"As regards the detention conditions and the guarantees applicable to persons detained, in order to secure the transfer procedures to the Member State responsible, Articles 9, 10 and 11 of Directive 2013/33/EU shall apply."
- Articles 10 and 11 of Directive 2013/33/EU ("the Reception Directive") govern conditions of detention. Article 11 also contains provisions governing the circumstances in which minors may be detained. These include:
"2. Minors shall be detained only as a measure of last resort and after it having been established that other less coercive alternative measures cannot be applied effectively. Such detention shall be for the shortest period of time and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors.
The minor's best interests, as prescribed in Article 23(2), shall be a primary consideration for Member States.
3. Unaccompanied minors shall be detained only in exceptional circumstances. All efforts shall be made to release the detained unaccompanied minor as soon as possible."
- Article 9 of the Reception Directive also provides for the review of the legality of the detention. It provides inter alia that:
"3. Where detention is ordered by administrative authorities, Member States shall provide for a speedy judicial review of the lawfulness of detention to be conducted ex officio and/or at the request of the applicant. When conducted ex officio, such review shall be decided on as speedily as possible from the beginning of detention. When conducted at the request of the applicant, it shall be decided on as speedily as possible after the launch of the relevant proceedings. To this end, Member States shall define in national law the period within which the judicial review ex officio and/or the judicial review at the request of the applicant shall be conducted.
Where, as a result of the judicial review, detention is held to be unlawful, the applicant concerned shall be released immediately.
4. Detained applicants shall immediately be informed in writing, in a language which they understand or are reasonably supposed to understand, of the reasons for detention and the procedures laid down in national law for challenging the detention order, as well as of the possibility to request free legal assistance and representation.
c. domestic legislation relating to detention
- Paragraph 16 of Schedule 2 to the Immigration Act 1971 provides inter alia that:
"(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom [certain removal] directions may be given..., that person may be detained under the authority of an immigration officer pending—
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions.
(2A) But the detention of an unaccompanied child under sub-paragraph (2) is subject to paragraph 18B."
- Paragraph 18B of Schedule 2 provides that:
"(1) Where a person detained under paragraph 16(2) is an unaccompanied child, the only place where the child may be detained is a short-term holding facility, except where—
(a) the child is being transferred to or from a short-term holding facility, or
(b) sub-paragraph (3) of paragraph 18 applies.
(2) An unaccompanied child may be detained under paragraph 16(2) in a short-term holding facility for a maximum period of 24 hours, and only for so long as the following two conditions are met.
(3) The first condition is that—
(a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24 hour period, or
(b) a decision on whether or not to give directions is likely to result in such directions.
(4) The second condition is that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24 hour period in accordance with those directions.
(5) An unaccompanied child detained under paragraph 16(2) who has been removed from a short-term holding facility and detained elsewhere may be detained again in a short-term holding facility but only if, and for as long as, the relevant 24 hour period has not ended.
(6) An unaccompanied child who has been released following detention under paragraph 16(2) may be detained again in a short-term holding facility in accordance with this paragraph.
(7) In this paragraph—
"relevant 24 hour period", in relation to the detention of a child in a short-term holding facility, means the period of 24 hours starting when the child was detained (or, in a case falling within sub-paragraph (5), first detained) in a short-term holding facility;
"short-term holding facility" has the same meaning as in Part 8 of the Immigration and Asylum Act 1999;
"unaccompanied child" means a person—
(a) who is under the age of 18, and
(b) who is not accompanied (whilst in detention) by his or her parent or another individual who has care of him or her."
- In R (AA (Sudan)) v Secretary of State for the Home Department  EWCA Civ 138 held that whether an individual was a person who is under the age of 18 is a matter that the court must itself determine in the event of a dispute about the application of these provisions and that where, in point of fact, the detainee is an unaccompanied child then detention beyond what is sanctioned in paragraph 18B (1) and (2) is unlawful. It does not suffice that there were reasonable grounds for believing or suspecting at the time of detention that the individual was an adult.
- Ms Sabic submitted that the Claimant was initially detained under paragraph 16(2) of Schedule 2 to the Immigration Act 1971. But, in addition to the Claimant's case set out in the Amended Grounds, so she also submitted, Article 28 applies to a person subject to the Dublin III procedure. The Claimant became subject to that procedure as soon as a Eurodac search revealed that he had been recorded as having claimed asylum in Bulgaria, Hungary and Germany. Thus, from September 15th 2015 onwards, the Claimant's detention was constrained by article 28 of Dublin III, although the power to detain stemmed from paragraph 16 of Schedule 2 to the 1971 Act. The limitations which article 28 imposes are, she contended, directly effective and whether they are met is a matter for the court itself to determine. This meant inter alia that the detention must be in order to secure transfer procedures, but it is not permitted on the sole ground that removal is imminent or realistic or for any reason related to administrative convenience or general policies of the detaining State: the detainee must pose a significant risk of absconding. That risk must be established on the basis of an individual assessment. In this case, so Ms Sabic submitted, the Claimant was not detained because he presented a risk of absconding. But in any event, if he had been, Al Chodor established his detention would have been unlawful in the absence of objective criteria defined in legislation for establishing such a risk. Ms Sabic accepted that, in order to succeed in this argument, however, it was necessary to depart from the reasoning in Khaled.
- On behalf of the Secretary of State, Ms Idelbi submitted that the Claimant was not detained under article 28 of Dublin III; he was detained under paragraph 16(2) of Schedule 2 to the 1971 Act. The Secretary of State is entitled, so she submitted, to detain any individual who has no right to enter or remain in the United Kingdom (subject to the usual domestic constraints of such power). The legality of any such detention is unaffected by the fact that the Secretary of State decided to employ Dublin III to effect the Claimant's removal, as Khaled shows. The fact that domestic legislation is required to set out objective criteria for determining the risk of absconding shows that article 28 is inapplicable as Al Chodor holds and supports the conclusion in Khaled that article 28 does not have direct effect so as to create enforceable rights by individuals to challenge their detention. Ms Idelbi further submitted that any review of any detention under article 28 would not be pursuant to article 9 of Directive 2013/33/EU as the United Kingdom has not opted into that Directive. But, if article 28 were directly effective, the standard of review of the legality of decisions to detain under it would involve asking whether there had been a manifest error of assessment.
- On the basis that the Claimant was detained under paragraph 16(2) Ms Idelbi's submission was that its legality depended on whether or not he was a child, a question which it was ultimately a matter for the court to determine taking into account all matters in the round. The Secretary of State relied in that respect on the assessments and case advanced by the Oxfordshire County Council in response to the claim in respect of their age assessments.
a. whether, and (if so) when, detention may be unlawful under article 28 of Dublin III and the decision in Khaled
- Garnham J reached three relevant conclusions about article 28 of Dublin III in Khaled. These were that:
i) article 28 only applies where detention is solely for the purpose of a removal under Dublin III: it does not apply if the detention is justified on other grounds: see  and ;
ii) article 28 is accordingly irrelevant when detention for the same purpose is under some other power: in his view article 28 does not apply "when the detention is authorised under some-free-standing domestic law provision": see . As he then put it:
"65 The 1971 Act provides that a person who does not have current valid leave to remain is subject to administrative removal. The claimants fall into that category. As noted above, the 1971 Act gives powers of detention provided by paragraph 16(2) of Schedule 2. That was the power exercised in the case of these claimants. The fact that the Home Secretary then decided to employ the Dublin III provisions to effect removal to Bulgaria does not affect the legality of the detention. Article 28 governs and conditions the exercise of powers to detain when Dublin III is the source of the power to detain and remove; it does not abolish the pre-existing power under English domestic law to detain a non-UK citizen with no right to enter or remain in the UK pending their removal by whatever lawful means are available to the Home Secretary.
66 When article 28(2) refers to "the person concerned", it is referring to persons described in article 28(1) , namely a person held "in detention for the sole reason that he or she is subject to the procedure established by this Regulation". The detention referred to in article 28(3) is detention pursuant to article 28(1). None of the remainder of the article applies to a person whose detention is based on a power other than the Dublin Regulations.
67. In those circumstances I reject the claimants' argument that they can point to alleged breaches of that article as being enough to render their detention unlawful."; and
iii) Article 28 does not provide an individual with a right to challenge administrative detention in any event as,
"even if were not possible to conclude with confidence that that is the proper interpretation of article 28 [ie that it only applies to detention for the purpose of removal under Dublin III], it seems to me sufficiently realistic a reading of the provision as to mean that it cannot be said that the article is sufficiently clear and unconditional, as to make reliance on it possible by a detained person in the position of these claimants": see  and .
- In my judgment article 28 governs detention in order to secure transfer procedures in accordance with Dublin III and it confers a power to do so (as the references in paragraph 3 of that article to persons "detained pursuant to this article" makes plain). It is not merely concerned to impose limitations on other powers (as Ms Sabic submitted). As the Advocate-General said in paragraph  her Opinion in Al Chodor, "article 28(2) of the Dublin III Regulation…authorises Member States to detain applicants, provided that three conditions are met." Nor is article 28 is concerned with detention for other purposes. To that extent I agree with the first of Garnham J's conclusions in Khaled and with the views of HHJ Alice Robinson in R (W) Secretary of State for the Home Department  EWHC 9 (Admin) at . Thus it is plain that there are a number of grounds on which detention may be justified under the CEAS. Detention in order to secure transfer procedures in accordance with Dublin III is but one of them: see article 8(3)(f) of the Reception Directive. It would be absurd to suppose that the relevant legislators contemplated that detention would not be permitted of a person who may be removed under Dublin III given article 28.2, for example, when protection of national security or public order so requires, even if there is no significant risk of him absconding.
- In my judgment, however, the other conclusions of Garnham J cannot stand with the subsequent decision of the Court of Justice of the European Union in Al Chodor and his reasoning in support of them is inconsistent with other decisions of the Court of Justice.
- After the Al Chodors (who were Iraqi nationals) were stopped in the Czech Republic, the Czech police found, having consulted the Eurodac database, that they had previously made an asylum claim in Hungary and they took the view that there was a serious risk of the Al Chodors absconding. The Czech police then detained them in accordance with the relevant Czech legislation: see Al Chodor at -. That legislation provided for the police to "detain a foreign national who has entered or stayed in the Czech Republic illegally for the period of time necessarily required in order to secure transfer procedures in accordance with an international treaty concluded with another Member State of the European Union before 13 January 2009 or with directly applicable legislation of the European Union": ibid at . At the time of the Al Chadors' detention, however, there was no legislation setting out any criteria for determining whether there was a significant risk of individuals absconding: ibid at . That was significant as article 2(n) of Dublin III provides that in Dublin III
"'risk of absconding' means the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third-country national or a stateless person who is subject to a transfer procedure may abscond. "
In those circumstances the Czech Court annulled the decision to detain and declared their detention unlawful. That generated a reference by the Czech Supreme Administrative Court to the Court of Justice.
- The Court of Justice held (i) that the objective criteria for determining the risk of absconding must be established in a binding provision of general application (at  and ) (rejecting the suggestion that case law or consistent administrative practice might suffice); (ii) that the absence of such a binding provision of general application leads to the inapplicability of article 28(2) of Dublin III (at ); and (iii) that "in the absence of those criteria in such a provision, as in the main proceedings in the present case, the detention must be declared unlawful...."(at ).
- In my judgment the decision of the Court of Justice in Al Chodor recognises that article 28 confers a power to detain in order to secure transfer procedures in accordance with Dublin III, failure to comply with the requirements of which will render such detention unlawful. It is irrelevant that national legislation may authorise a domestic authority to detain individuals for that purpose (as it did in the Czech Republic in Al Chodor).
- On that basis in my judgment second and third conclusions that Garnham J reached in Khaled cannot be sustained in any event. His reasoning in respect of those two matters, however, appears to be flawed in any event in the light of other judgments of the Court of Justice.
- In my judgment the fact that detention is authorised under some domestic law provision does not make article 28 inapplicable or irrelevant when the detention is for the same purpose, namely in order to secure transfer procedures in accordance with Dublin III, and not for some other purpose. It would plainly be absurd to suggest that detention under any domestic legislation could permit a person to be detained "for the sole reason that he or she is subject to the procedure established by" Dublin III notwithstanding article 28.1 (given that, as an EU Regulation, the provisions of Dublin III, including article 28.1, are directly applicable). But, more fundamentally in respect of the power to detain conferred by article 28, as the Court of Justice stated, for example in C-550/10P Netherlands and the Council of the European Union v Stichting Al-Aqsa (2012) EU:C:2012:711 ("Al-Aqsa") at ,
"the second paragraph of Article 288 TFEU...provides that a regulation of the European Union is to be binding in its entirety and directly applicable in all Member States, which, in accordance with settled case-law, precludes in principle the Member States from adopting or maintaining national provisions in parallel."
- Of course some EU Regulations may make national legislation necessary: see eg Al Chodor at . They may do so explicitly, as (for example) Dublin III does in articles 2(n) (which was the subject of consideration in Al Chodor) and in article 27.3. Such national legislation may also be required implicitly. For example, in Dublin III it may be necessary to identify who in a Member State may exercise the power of detention conferred on such States by article 28.2. In some cases such legislation may also be necessary so as to accommodate the application of the Regulation within the national legal order (which in some cases may involve incorporating them for the sake of coherence and in order to make them comprehensible). But, in any event, as the Court of Justice also stated in Al-Aqsa, there are at least two constraints on what any such permissible national legislation may do. First, "Member States must not adopt a measure by which the Community nature of a legal rule and the consequences which arise from it are concealed from the persons concerned": see Al-Aqsa at . This means that, "according to settled case-law, Member States may adopt rules for the application of a regulation if they do not obstruct its direct applicability, do not conceal its Community nature and specify that a discretion granted by the regulation is being exercised, and provided that they adhere to the parameters laid down under it": C-113/02 Commission v Netherlands  ECR I-9720, EU:C:2004:616, at . The second constraint, reflecting that last proviso, is that "the direct applicability of a regulation precludes, unless otherwise provided, the Member States from taking steps which are intended to alter the scope of the regulation itself": see Al-Aqsa at . That would be so if the relevant criteria to be applied under the Regulation and the national legislation diverge: see Al-Aqsa at , C-113/02 Commission v Netherlands supra at  and . Accordingly, even if national legislation containing a power to detain in order to secure transfer procedures in accordance with Dublin III is permissible, in my judgment it could not permit (or be framed in terms that permitted) detention other than in the circumstances that Dublin III permits and it would have to specify that the discretion being exercised was one granted by the Regulation.
- Indeed even if article 28 of Dublin III had been included in a Directive (rather than a Regulation), so that, in accordance with article 288 TFEU, it was merely "binding as to the result to be achieved", national legislation which confers a discretion which may be exercised in circumstances which the Directive does not would be impermissible. The result would also be the same if all that article 28 had done was to impose limitations on the circumstances in which detention in order to secure transfer procedures in accordance with Dublin III may be authorised under any power conferred by national legislation. The proposition, that national legislation may permit something to be done in circumstances when EU legislation provides that it may not be, has only to be stated to be seen to be unsustainable.
- For these reasons I cannot agree with what I described as Garnham J's second conclusion. His reasoning appears to be that, because paragraph 16(2) of Schedule 2 to the 1971 Act may prima facie permit detention for purposes which include, but are also wider than, detention in order to secure transfer procedures in accordance with Dublin III, the circumstances in which detention for that purpose is permissible in accordance with EU law are irrelevant. Were that to be correct, a Member State could avoid complying with such limitations imposed by EU law where detention is in fact for that purpose (as well as the constraints on the timing of any transfer under article 28.3) merely by enacting national legislation of a wider scope. In practice such an approach could render compliance with the requirements of EU law optional, which cannot be correct. But such an approach is inconsistent in any event with the permissible scope of national legislation that may cover a power conferred by an EU Regulation: it would not merely conceal the Community nature of the power and fail to specify that a discretion granted by the Regulation is being exercised; it would also alter its scope, by failing to adhere to the parameters laid down under that Regulation.
- Garnham J's third conclusion was article 28 was not sufficiently clear and unconditional as to make reliance on it possible by a detained person. As the Grand Chamber pointed out in C-394/12 Abdullahi v Bundesasylamt (2013) EU:C:2013:813,  1 WLR 1895, at , "it should be recalled in that connection that, under the second paragraph of Article 288 TFEU, regulations are of general application, they are binding in their entirety and they are directly applicable in all Member States. Accordingly, owing to their very nature and their place in the system of sources of EU law, regulations operate to confer rights on individuals which the national courts have a duty to protect." As the Court of Justice pointed out in Al Chodor Dublin III was intended to improve "the judicial protection enjoyed by asylum seekers"; that "this high level of protection afforded to applicants covered by the Dublin III Regulation is provided for with regard to the detention of those applicants"; that "those provisions provide for the limitation on the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter"; and that "it follows from the forgoing that the detention of applicants, constituting a serious interference with those applicants' right to liberty, is subject to compliance with strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness": see Al Chodor at , , ,  and . Such safeguards would be deprived of practical effectiveness if they could not be relied on. Moreover it is manifest from that article 28.4 of Dublin III that, among the guarantees that are applicable to persons detained by virtue of that provision, are (i) article 9.4 of the Reception Directive that requires detained applicants of the reasons for their detention and the procedures laid down in national law for challenging the detention order (as well s the possibility to request free legal assistance and representation) and (ii) article 9.3 of that Directive that requires States to provide for a speedy judicial review of the lawfulness of that person's detention when ordered by an administrative authority "ex officio and/or at the request of the applicant" with the result that the applicant shall be released immediately when "as a result of the judicial review, detention is held to be unlawful. In my judgment these provisions make it plain beyond argument that the lawfulness of any detention under article 28 may be impugned, and the limitations which it imposes on when detention may occur may be relied on, by the person detained.
- Ms Idelbi pointed out correctly that the Reception Directive was one that the United Kingdom decided not to be bound by or to be subject to its application as such (as recital (33) to that Directive records). But the United Kingdom did agree to be bound by the provisions of Dublin III, however, including article 28.4 and thus those parts of the Reception Directive that it makes applicable to provide safeguards and guarantees to persons detained in order to secure the transfer procedures to the responsible Member State.
- It may nonetheless be the case, as Ms Idelbi submitted, that, for a provision of EU law to produce direct effects in relations between individuals and Member States, there must be a clear and unconditional obligation imposed on Member States, the execution or effects of which are not subject to intervention by an act of the Member States or the Commission. But the circumstances in which the power to detain under article 28 may be exercised are not subject to such intervention: Member States do not have a discretion whether or not to comply with those constraints. While it may be that some national measures are required to be taken before the power conferred by Article 28 can be relied on, the failure to take them means, as the Court stated in Al Chodor at , that "the detention must be declared unlawful" as article 28 is inapplicable. Were it otherwise, a Member State could rely on its own unlawful failure to act to render a detention lawful that would otherwise be unlawful.
- Garnham J appears to have thought that article 28 was not sufficiently clear and unconditional, so as to make reliance on it by those detained possible, on the basis that it may only apply to detention for the purpose of removal under Dublin III and not for other purposes or under other powers. In my judgment this confuses when article 28 applies what it requires when it applies. The former is a matter for the court to determine on a proper construction of the Regulation. It says nothing about whether the obligations article 28 imposes when it does apply are clear and unconditional. In my judgment article 28.1 and 28.2 are.
- My views about the effects of article 28, therefore, differ from those of Garnham J in Khaled and HHJ Robinson in R (W) v Secretary of State for the Home Department supra. Although not bound by them, I would not depart from their views unless satisfied that they were clearly wrong: see R v Greater Manchester Coroner ex p Tal  1 QB 67 at p81. In this case I am satisfied that they are given the subsequent decision of the Court of Justice in Al Chodor and in the light of other judgments of the Court of Justice to which I have referred.
b. whether the Claimant's detention was contrary to article 28.1 and/or article 28.2 of Dublin III
- As I have mentioned, the Claimant was detained as from September 15th 2015 in order to secure the transfer procedures to a responsible Member State. It makes no difference whether or not it was considered that there was a significant risk of him absconding. If it was considered that there was not such a risk, his detention was unlawful by virtue of article 28.1. If it was considered that there was, it was still unlawful, as Al Chodor shows, as there were then no objective criteria for determining the risk established in a binding provision of general application.
- In the light of Al Chodor the Secretary of State has made the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 that came into effect at midday on March 15th 2017. The criteria (and thus, in the Secretary of State's view, article 28.2) are said to apply inter alia when an asylum seeker's fingerprint data has been processed in accordance with Regulation (EU) 603/2013 and a comparison with data held by another participating State is to be undertaken or evidence or information listed in Annex II to Commission Regulation (EC) 1560/2003 has been identified which suggests that, in accordance with the Dublin III Regulation, another participating State may be responsible for examining the asylum seeker's application for international protection.
- For these reasons, in my judgment the Claimant's detention was unlawful as being in conflict with article 28.1 and/or 28.2 of Dublin III.
c. other grounds on which the Claimant's detention is impugned
- Under article 8.4 of Dublin III, in the absence of a family member, a sibling or relative in another Member State, the State responsible for determining an application for international protection by an unaccompanied minor, who has made such an application in more than one Member State, is the Member State in which that minor is present. Against that background the Claimant contended in his amended grounds that "as an age disputed child, [his] detention was unlawful" and that "whether a person is a minor is, in domestic law, a matter for judicial assessment rather than being solely a matter of opinion of the Secretary of State subject to review on public law grounds."
- This case assumes that the Claimant had no family member, sibling or other relevant relative in another Member State. The Secretary of State has not suggested that he does or that she thought that he might have had. Nonetheless this is not an appeal or review in respect of any transfer decision. The contention must be that the Claimant could not lawfully be detained in order to secure the transfer procedures to a responsible Member State as he was such an unaccompanied minor. In my judgment the legality of his detention under article 28 of Dublin III thus depends on whether an immigration officer was entitled to treat him for the purpose of that article as an adult given that the Claimant had asserted that he was a minor.
- All that a detainee is entitled to (by virtue of article 9.3 of the Reception Directive) is a review of the legality of his detention. In my judgment the legality of any detention under article 28 generally depends on whether the relevant authority made a manifest error of assessment in concluding that the circumstances were such that detention of the individual concerned was permissible. That is because questions, such as whether there is a significant risk of absconding, whether detention is proportional and other less coercive measures cannot be applied effectively, and whether there are exceptional circumstances in which it is permissible to detain an unaccompanied minor as a measure of last resort, all involve evaluations or appraisals in which an authority has a margin of appreciation and where the conclusion reached is lawful absent a manifest (and material) error of assessment. In such cases, therefore, any detention would be unlawful if the relevant authority's conclusion was clearly wrong on the basis of the information available to it. Whether the individual is someone who might be the subject of transfer under Dublin III (so as to be detained in order to secure the transfer procedures to a responsible Member) may also involve such evaluations or appraisals, such as, for example, in the case of an unaccompanied minor, whether he or she has a sibling or family member legally present in another State and what that minor's best interests require.
- The more difficult question is whether some different standard should be applied when determining the legality of an authority's conclusion that the individual is not a minor for the purpose of determining whether he or she is someone who might be the subject of a transfer under Dublin III (given article 8.4 of Dublin III) and whether article 11.2 and 11.3 of the Reception Directive are applicable. It is, of course, the case as Baroness Hale pointed out in R (A) v Croydon LBC  UKSC 8,  1 WLR 2557, at  that "there is a right or wrong answer" to the question whether an individual is a child. But that does not mean that the conclusion may not be one that is arrived at by applying informed judgment to what may be a complex set of facts or after weighing in the balance a number of different factors, some of which may pull in different directions. In such cases in EU law an authority has a margin of appreciation and the legality of its conclusion will depend on whether it involves a manifest (and material) error of assessment. That that should be the relevant test for the two purposes I have referred to is supported, not merely by the fact that decisions as to detention may have to be made, and any review of its legality conducted, promptly but also by the fact both Dublin III and the Reception Directive envisage ostensibly more intrusive forms of challenge than a review of legality, namely an appeal (not merely a review) on fact as well as law: see article 27.1 of Dublin III and article 26.1 of the Reception Directive. On balance, therefore, in my judgment the legality of treating an individual as an adult for the purpose of determining the legality of that person's detention under article 28 depends on whether the relevant authority has made a manifest (and material) error of assessment in concluding that that person was not a child.
- The information available to the immigration officers about the Claimant' age is considered below. But in my judgment it cannot be said that in this case there was a manifest error of assessment by her.
- Even if the lawfulness of the detention fell to be reviewed on the basis of domestic public law principles, the result would not be different. Ms Sabic is wrong when she submits that as a matter of domestic law whether an individual is a child is a matter for judicial assessment: that depends on what the relevant legislation properly construed provides: see R (AA(Sudan) v Secretary of State for the Home Department supra at . In my judgment the view of the relevant immigration officer cannot be regarded as Wednesbury unreasonable on the basis of the information then available.
- There is moreover no basis for contending that an individual may not be detained under Dublin III merely because that person is "age-disputed". Similarly, if the Claimant was detained pursuant to article 28 of Dublin III, he was not detained under paragraph 16(2) of Schedule 2 to the 1971 Act and accordingly paragraph 18B of that Schedule did not apply to him.
- For the reasons given, in my judgment the Claimant's detention was unlawful as being in conflict with article 28.1 and/or 28.2 of Dublin III.
OXFORDSHIRE COUNTY COUNCIL'S AGE ASSESSMENTS
(i) the legal background
- Under Part III of the Children Act 1989 certain local authorities in England and Wales, of whom Oxfordshire County Council is one, may provide (or be obliged to provide) certain services to a "child in need" in their area. A "child" is an individual under the age of 18. Such an authority also has power under Part III of the 1989 Act to provide certain support and guidance, which individuals can normally expect from their own families when they become adults, for anyone after they turn 18 whom the authority has "looked after" for at least a total of 13 weeks when he or she was aged between 14 and 18 ("a relevant child").
- As Sir Anthony May stated, when giving the judgment of the Court of Appeal in R (FZ) v Croydon LBC  EWCA Civ 59,  PTSR 748,
"2. There are various circumstances in which a local authority... has to determine the age of a child or young person who claims to be a child. Typically a young person arrives in this country unaccompanied from overseas and seeks asylum. ....Some young people may be obviously and uncontroversially children. Others may accept that they are adult. It is for those whose age may objectively be borderline, between perhaps 16 and 20, that an appropriate and fair process of age determination may be necessary. A process has developed whereby an assessment is undertaken by two or more social workers, trained for that purpose, who conduct a formal interview with the young person at which he is asked questions whose answers may help them make the assessment. It is often necessary for there to be an interpreter. The young person may or may not be able to establish or indicate his age by producing documents, which themselves may require translation.
3. In R (B) v Merton London Borough Council  4 All ER 280 Stanley Burnton J gave guidance in judicial review proceedings on appropriate processes to be adopted when a local authority are 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...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 are obliged to give reasons for their 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."
- In R(A) v Croydon London Borough Council supra, the Supreme Court held that, where there is a dispute about the age of an individual for the purpose of Part III of the 1989 Act, it is for the court to decide what it is on the basis of the evidence available to it. In R (CJ) v Cardiff City Council  EWCA Civ 1590,  PTSR 1235, the Court of Appeal held that there is no burden of proof on a claimant and it also rejected a submission that, in a case of doubt, the doubt should be resolved by the court in favour of the claimant. It held that the court "can do no more than apply the balance of probability to the issue without resorting to the concept of discharge of a burden of proof...the court will decide whether, on a balance of probability, the claimant was or was not at the material time a child": see at  and .
- In doing so the court will almost invariably have available to it an assessment that the local authority has itself made of a claimant's age. But, however "Merton compliant" an assessment by social workers may have been, the task of determining a claimant's age for the purpose of Part III of the 1989 Act if disputed remains that of the court on the basis of all the evidence available to it, including, of course that provided any such assessment.
- In R (GE (Eritrea)) v Secretary of State for the Home Department and another  EWCA Civ 1490,  1 WLR 4123, the Court of Appeal held that those provisions enabling a local authority to support individuals who had been "looked after" before they were 18 did not apply to an individual who had not in fact been "looked after", even if the only reason why he or she had not been was that the local authority had incorrectly treated that individual as not being a child. Nonetheless that Court also held that, even if an individual whom the authority had not in fact "looked after" was over 18 when the court considered the case, he or she was entitled to seek a declaration of what their true age was when the authority had assessed it, a claim which the court should again determine on the basis of the evidence available to it. The reason was that, if the local authority should have assessed the individual as being a child, that individual could still ask it to exercise a discretion to treat him or her as if he or she was a relevant child (even though they were not). Mr Bedenham informed me that in effect that is what the County Council would do in this case if the County Council should have found that the Claimant was a child when his age had been assessed but he is now 18 (as he claimed in his first witness statement).
- Accordingly, whatever age the Claimant may now be, it follows that he is entitled to seek a declaration that he was in fact a child when the County Council first assessed his age and that whether or not he is entitled to that declaration falls to be determined on the basis of the evidence now available to this court.
- Although the Claimant does not claim to know his date of birth, in the Amended Grounds on which this claim is made it was stated that "the Claimant's account is that he was told [by his father that] he was soon to be 16 at the time he started his journey from Afghanistan". On his behalf Ms Sabic submitted that he has been entirely consistent about the core of his account, namely his age. She submitted that he is to be believed. Accordingly, so she contended, the Claimant should be treated as having been born on September 14th 1999, that is to say in effect that he arrived in the United Kingdom on what was (or on the day after) his sixteenth birthday.
- Ms Sabic accepted that the Claimant may not have looked as if he was under 18 when he arrived. But, referring to "Age Assessment Guidance" (issued in October 2015 by the Association of Directors of Children's Services), in accordance with which she invited me to approach the question of the Claimant's age, Ms Sabic submitted not merely that the impact of long and traumatic journeys can be aging as well as exhausting (although the guidance also notes that, with good care and some recovery time, physical appearance may change dramatically within a fairly short period of time) but also that physical characteristics are a notoriously unreliable indicator of age. The Royal College of Paediatrics and Child Health had stated in 1999 that the margin of error around the age of 18 "can sometimes be as much as 5 years either side". Moreover gaps, inconsistencies or lack of information in what a child or young person says do not always mean that he or she is not being truthful and that young people who have arrived in the United Kingdom as unaccompanied asylum seekers are likely to have comparative difficulty in recalling specific autobiographical events. In that respect she sought permission to rely on a report by a clinical psychologist, Dr Brock Chisholm, prepared on March 10th 2017.
- Ms Sabic suggested that there were a number of uncontroversial matters against which the issue had to be considered, namely, that the Claimant is from Afghanistan; that he can neither read nor write anything other than his first name; that he is a young person (as even on the County Council's own assessment he was 20 in May 2016); that he comes from a small family unit that lived in a small village in Afghanistan; that his description of his life there was consistent with him being young, as he was not given responsibility and he was not allowed out by himself; that he suffered a traumatic set of events in Afghanistan, witnessing the death of his mother and baby brother by the Taliban; that he left Afghanistan shortly thereafter with his father who wanted to take him to the United Kingdom and with whom he travelled to Iran; and that he was then separated from his father in Iran in distressing circumstances.
- Ms Sabic submitted that the Claimant's account is credible: he has been consistent about the core of his account and that any inconsistencies are (as Dr Chisholm had said) "consistent within the normal confines of memory error expected of traumatic events and within the context of a subsequent traumatic journey". Moreover the Claimant has been subject to repeated assessments of his age in this country that, so she submitted, has made him very suspicious about the questions being asked and reticent in providing information.
- Ms Sabic submitted that significant weight should be attached to the Seymour/Prince report and that any criticisms of it are unfounded. She also submits that little weight should be given to the Thrussell/Johnson assessment as (i) the assessors failed to give any weight to the factors in favour of the Claimant's case; (ii) the reliance placed by the assessors on the views of staff at the Campsfield House (where he was detained) was unwarranted; (iii) the assessors made adverse credibility findings based on plausibility which is (so she submits) an inherently unreliable indicator of credibility, most significantly in relation to the Claimant's ability to travel to Oxford unaided and his overall demeanour; and (iv) the assessors demonstrated a misunderstanding of how memory works. There are also signs of very childish behaviour on his part and he clearly struggles with daily life. Reliance should not be placed on his dates of birth recorded by the authorities in Bulgaria and Germany: the Claimant does not know why they were recorded when he had told the authorities (as he has consistently maintained) that he was 16.
- On behalf of the County Council, Mr Bedenham contends that the Claimant was born no later than January 1996, that is to say that he was at least 19½ on arrival in this country. He submits that that conclusion is supported by the Claimant's physical appearance, his demeanour and the maturity of his interaction with adults, and the Claimant's lack of credibility given his inconsistent statements about his age and background, particularly about his education. He invited me to give the Thrussell/Johnson assessment considerable weight: it involved an assessment in a relaxed environment for six hours in a number of sessions spread over several days giving the experienced assessors a good opportunity to see how the Claimant behaved and dealt with questions. The criticisms made of the report do not undermine the method of assessment used or its conclusions. By contrast the Seymour/Prince report was based on a two hour assessment with a relatively minimal level of detail and on the Claimant's answers to questions that are now disavowed by him.
(iii) the evidence
- There is no documentary evidence of the Claimant's age. There have been three assessments by social workers of his age and a report by a clinical psychologist, Dr Chisholm, to which I have been referred. It is convenient to refer briefly to them to help provide some of the background against which the credibility of some of the Claimant's statements about himself fall to be assessed. In reaching my conclusions I have not referred to all the evidence available and which I have taken into account but only to that which I consider necessary to reach those conclusions and I have had regard to the Age Assessment Guidance so far as material.
a. the Dodd/Harrod assessment
- The first assessment of the Claimant's age on behalf of the County Council was conducted by Ms Caroline Dodd and Ms Fiona Harrod, on November 20th 2015 while the Claimant was being detained in Campsfield House. Ms Dodd became a social worker in 2008 and has worked solely in the County Council's Unaccompanied Minors Team since it was formed in 2014. She says that she has carried out 16 age assessments as lead assessor and 3 as a co-assessor. It is not clear what experience Ms Harrod may have had.
- The assessment record states that the Claimant said that he was 16 although he did not know his date of birth and that in the assessors' view the Claimant was a person who was very clearly over 18 years of age. The form contains no reasoning for the conclusion that the assessors reached. It also records the Claimant's concern and unhappiness at being detained at Campsfield House with those older than him.
- Ms Dodd has provided further information about the assessment, however, in a witness statement. She states that the Claimant was questioned using an interpreter via a telephone and that the Claimant twice confirmed that he understood the interpreter. She states that the assessment only lasted for approximately ten minutes, as this was a rare occasion in which it was very clear that the individual was well over 18 such that a prolonged enquiry was not necessary. For that reason also it was not necessary for the assessment to be postponed until an "appropriate adult" was present. (Such an adult is one who should advocate on behalf of a child or young person, represent their best interests and ensure that their welfare needs are met during the any interview.) She states that the Claimant was unable to provide supporting information or evidence why he thought that he was 16 years old, despite being asked a variety of questions that could have elicited such information. That is a matter to which I shall return.
- In her and Ms Harrod's view the Claimant was very significantly over 18, most likely in his late 20s or even early 30s. He had the physique of a man who had completed puberty a significant number of years ago. His skin was lined with age rather than solely by the weather: the deep lines on his face, neck and hands corresponded to muscle movements that take years to cause creases rather than being prematurely aged by the weather. His interaction with them was also in a manner expected of a fully grown adult. Staff at the detention centre had also raised no concern that the Claimant was a minor, which she says that they do, which was also a factor having significant weight.
b. the Seymour/Prince Report
- The second assessment by social workers of the Claimant's age was carried out on March 19th 2016 by Ms Angeline Seymour and Ms Hannah Prince. Ms Seymour has been a qualified social worker since 2000. She works as an independent social worker producing reports for use in legal proceedings. She has worked in the asylum and immigration field since 2010 when she completed training in "Merton compliant" assessments and she has assessed the age of individuals over a dozen times. Having obtained a Diploma in Social Work in 1998, Ms Prince had practised as a Senior Social Work Practitioner for 8 years when the assessment of the Claimant was conducted. She also was working as an independent social worker producing reports for use in legal proceedings.
- Present at their interview with the Claimant was a Pashtu interpreter, an "appropriate adult" (Ms Zoe Horton) and a friend of the Claimant. Their interview lasted two hours with one break of five minutes.
- In their report Ms Seymour and Ms Prince stated that they had relied upon the Claimant's physical features and demeanour during the assessment to estimate his age (a matter to which I shall refer later). Their conclusion that the Claimant "appears to be aged between the ages of seventeen to eighteen" was also based on his account of a birthday celebration and on their view that journeys from Afghanistan may take many months, even years. The Claimant had told them that he had only celebrated his birthday once in Afghanistan and that that was his fourteenth birthday. In their view he may well have been aged "between fourteen to fifteen" when he left Afghanistan; and, given the possible length of his journey to the United Kingdom, he may have been aged between sixteen and seventeen on his arrival in the United Kingdom in September 2015. This might be consistent with their conclusion, that the Claimant appeared "to be aged between the ages of seventeen to eighteen" in March 2016, had his journey taken over 18 months. If he was seventeen in March 2016, he would have had to have left Afghanistan before March 2014 if he was to have left before his fifteenth birthday.
- This length of journey was inconsistent with what the Claimant had told them about the incident which had caused his father and him to leave Afghanistan (referred to below) that had occurred approximately one year and four months earlier, in about, therefore, December 2014. That inconsistency was not explained in the report. (It is also inconsistent with the Claimant's statement to Ms Thrussell and Ms Johnson a few weeks later that his journey had taken 4-5 months.) Their conclusion that he was aged between 17 and 18 was also inconsistent with the Claimant's statement to them that he had celebrated his sixteenth birthday in the "last one or two months" before the assessment in March 2016. That inconsistency is scarcely explained by their statement that, if the Claimant was correct on that matter, "he may well be aged nearer to seventeen or eighteen". Nor did they consider whether their conclusion reflected on the Claimant's credibility.
- I consider later what the Claimant told Ms Seymour and Ms Prince, how he appeared to them and how he conducted himself towards them during their two hour interview. In my judgment, however, their conclusion about the Claimant's age is not cogent insofar as it is based on the reasoning described above and its basis is contradicted in any event by other evidence about the celebration of the Claimant's birthdays (to be considered later) and when he left Afghanistan which also needs to be taken into account when assessing its value.
- Ms Seymour added a supplement to the Seymour/Prince report in September 2016 responding to certain criticisms made of, and comments made in relation to, her report in the Thrussell/Johnson assessment. She did not seek, however, to criticise that assessment or to reconsider the Seymour/Prince report in the light of its contents and conclusion.
c. the Thrussell/Johnson assessment and Ms Thrussell's evidence
- The third assessment by social workers of the Claimant's age was conducted by Ms Katie Thrussell and Ms Lucy Johnson on behalf of the County Council.
- Ms Thrussell is a Senior Practitioner Social Worker who has been working with unaccompanied asylum seeking minors since 2008. She has attended training sessions in age assessment and delivered a good practice session at another local authority. She has been involved in 22 age assessments as the lead assessor and 2 as a second assessor. She also points out that the County Council has supported many young people from Afghanistan and that she has met a significant number of young people from that country as well as being responsible for the case management of some of them.
- Ms Johnson is a social worker who was working as a Specialist Community Worker in the County Council's Unaccompanied Asylum Seeking Children Team. She had undertaken 2 assessments as the lead assessor and 11 as the second assessor. Both she and Ms Thrussell have acted as "appropriate adults".
- Their assessment was conducted over a series of meetings at the County Council's offices in Oxford. The first two were on May 3rd 2016. The third on May 18th 2016 involved clarification of certain points arising from the earlier interviews and an indication to the Claimant of the conclusion to which the assessors were minded to come. Their final determination of his age was communicated to the Claimant at a meeting on May 25th 2016. These meetings were attended by an "appropriate adult" (Christine Harding) and by an interpreter.
- In addition to the Thrussell/Johnson assessment itself, I have been able to consider the notes which each of them, and the appropriate adult, took of their meetings with the Claimant.
- When asked how the Claimant knew his age, he stated that his father (who had a National Identification Card and birth certificate for him) had told him when starting his journey that he would be 16 soon and that they would celebrate when they reached London. The Claimant said that he thought that he had begun the journey in the fourth month in the Gregorian Calendar for 2015 (that is to say in April 2015), having celebrated his fifteen birthday three months before leaving (which would be in January 2015). He said that he could not remember celebrating any other birthdays as it was a long time ago. The Claimant told Ms Thrussell and Ms Johnson that his journey had taken 4 to 5 months. He stated that, wherever he was arrested on it, he had claimed that he was 16, although he was younger than that. He denied saying so because he had been told what to say. He was giving what he believed to be close to his age.
- The assessors did not consider that the Claimant was in his late 20s to early 30s (as the County Council's previous assessors had thought that he might be). They were not sure of that but considered him to be an adult. Giving him the benefit of the doubt, they were confident that he was 20 years old and were agreed that he could possibly be older. His developed frame, protruding Adam's apple and physical presence were not those of child but of a man who has gone through the stages of puberty (not mid-puberty which would be considered for a 16 year old male). They placed considerable weight on his demeanour and interaction with them which in their view was assured, controlled, confident and calm. They thought that this was not consistent with his being a teenager. They thought that what he had said about his education to them and to Ms Seymour and Ms Prince was inconsistent and undermined his credibility. They recognised that an individual's date of birth does not have the significance in Afghanistan as it does in the United Kingdom and that birthdays are not traditionally celebrated there. They considered that his vague recollection of certain events indicated that he was withholding a true narrative. He had had claimed to be 16 or 18 in countries on his journey even though he said that he knew he was younger at the time of travel, a matter to which the assessors attached significant weight. They also gave some weight to the fact that staff at Campsfield House had not thought him a child. They gave him a date of birth of January 1st 1996.
- Ms Thrussell has also made two witness statements and she was cross-examined by Ms Sabic on the conduct of the Thrussell/Johnson assessment and its contents. In my judgment she was a candid witness who was willing to accept criticisms of her assessment if she thought that there was something in them. She accepted, for example, that she had not asked about, or made enquiries with, those with whom the Claimant was living in accommodation arranged by the immigration authorities. She accepted that this was an oversight on her part and that the results of such enquiries (if they could have been made) might have helped. Having heard her evidence I am satisfied that she approached the assessment of the Claimant's age with an open mind, unconstrained by any desire to uphold the previous assessment conducted on behalf of the County Council (with some of its conclusions she disagreed).
- In my judgment the criticisms of the process of Thrussell/Johnson assessment that Ms Sabic put to Ms Seymour did not establish any material defect in it. There is no credible evidence to suggest, for example, that, had any enquiries been made of those with whom the Claimant was living, they would have produced any information sufficient to change the outcome of the assessment. The Claimant has himself produced none from such individuals. Having had regard to the assessors' own notes and those of the appropriate person, in my judgment, their assessment was conscientiously conducted in an appropriate manner, having considered the Age Assessment Guidance, giving the Claimant ample opportunities to explain why he thought that he was 16 and to deal with the issues raised and to correct any misunderstandings. It was a far more thorough assessment than that conducted by Ms Seymour and Ms Prince.
- Some criticisms of some of Ms Thrussells's and Ms Johnson's views advanced in cross-examination were not in my judgment cogent. Ms Sabic cross-examined Ms Thrussell, for example, on the assessors' view that, had the Claimant had been an uneducated young boy in the United Kingdom who had issues with his memory (as he had claimed), the task of getting to Oxford (where the assessment was conducted) without a guide or support would have been too difficult to achieve. She suggested that, as the Claimant had been late on two occasions, he had more difficulty than this suggested. Ms Thrussell's view was that, had the Claimant had real difficulties struggling to get to the appointments without help, he would have said so. Her view about the Claimant's ability to get about unaided without significant difficulty, notwithstanding his claims during the assessment to have issues with his short term memory and to be "mentally disturbed", is in fact supported by Dr Chisholm. In his report (referred to below) he stated that the Claimant "has no problems with independent travel and navigation". The Claimant's difficulties in finding the right train or platform as a result of which he was late on two occasions may simply be attributable to difficulties he may have in reading English. I shall refer to certain other criticisms of their views later.
- Ms Thrussell was plainly well equipped, however, to form a judgment on the Claimant's age given her experience and the time spent with the Claimant. The general assessment that she and Ms Johnson made of the maturity of the Claimant's demeanour and of his interaction with them is one to which I attach weight.
d. the Chisholm Report
- The last assessment of the Claimant is contained in a report prepared by a Chartered Clinical Psychologist, Dr Brock Chisholm, whose specialism is in mental health difficulties following traumatic events and asylum seekers' and refugees' health. He does not claim to be an expert in age assessment or on cultural practices in Afghanistan. He assessed the Claimant in his solicitors' office on March 3rd 2017 with the help of a Pashtu speaking interpreter.
- On behalf of the County Council Mr Bedenham objected to admission of this report in evidence for which Ms Sabic sought permission. Given that the County Council had had time to consider its contents and for Ms Thrussell to file a witness statement addressing its contents before the hearing, in my judgment it would not be consistent with the overriding objective to refuse such permission and accordingly I have had regard to its contents.
- Dr Chisholm found that the Claimant did not meet the criteria for any mental health diagnosis or for any other diagnosis and that there was no evidence of a cognitive impairment. Dr Chisholm stated, however, that this does not mean that memory errors, discrepancies and poor recall of details may not occur, particularly in aspects peripheral to survival during life threatening events.
- Ms Sabic sought to rely in particular on Dr Chisholm's view that "statements made by [the Claimant] in a statement are not detailed [and] appear to me to be consistent within the normal confines of memory error expected of traumatic events and within the context of a subsequent traumatic journey." It is probable that the statement being referred to by Dr Chisholm is that made by the Claimant on November 25th 2015 which as provided to the Home Office "in support of my immigration matter" ("the Claimant's Home Office statement" to which I shall refer below). But, even so, unfortunately, it is not clear which of the statements within it are, in Dr Chisholm's opinion, "within the [expected] normal confines of memory error" or why they should be regarded as being in error in any event because they are not detailed. Likewise I have derived little assistance from his assertion, that "comments" in the Thrussell/Johnson assessment were "not correct" and displayed "a misunderstanding about how memory works", without him identifying the comments and why each was in error.
e. the Claimant's evidence
- Inevitably, when there is no documentary evidence or other independent evidence about a claimant's age, the credibility of what the claimant says (or says he cannot say), particularly about his age and matters that may cast light on it, is particularly important. In this case there are three statements signed by the Claimant before the Court: (I) the Claimant's Home Office statement; (ii) a witness statement in support of this claim dated April 19th 2017 ("the Claimant's first witness statement"); and (iii) a second witness statement in support of this claim dated May 3rd 2017 ("the Claimant's second witness statement").
- The Claimant's written statements are all in English, even though he does not claim to understand or speak it. The Claimant's Home Office statement and his second witness statement both contain a signed statement added by an individual stating that its contents were read to the Claimant in Pashtu. There was no such additional statement on his first witness statement, a matter of concern which I raised on the first day of the hearing together with a concern about how that statement and the Claimant's Home Office statement had been taken. This led to the Claimant's second witness statement which also sought to correct statements made in the two earlier statements.
- The manner in which the Claimant's written statements have been taken is not satisfactory.
- The basic rule (contained in paragraph 18.1 of the Practice Direction to CPR Part 32) is that a "witness statement must, if practicable, be in the intended witness's own words, [and] the statement should be expressed in the first person". When a witness does not speak or understand English sufficiently to make a statement in English in his own words, it follows (a) that, if practicable, the statement should be taken in his own words in a language which he does speak; (b) that, once he or she has signed it, that statement should then be translated into English; (c) that the translator should make an affidavit indicating that he or she has qualifications for making such a translation and verifying the translation; and (d) that both statements and the affidavit should be filed with the court and served. This approach also reflects that which is required when the court directs that a witness statement in a foreign language is to be filed. Following it will ensure (i) that a statement will be in the witnesses own words, thus avoiding subsequent potential dispute about what the witness may have said or understood; (ii) that it is clear who has translated the witness's statement and their qualifications for doing so and (iii) that those served with the statement in the witness's own words may check the translation provided for accuracy.
- The Claimant also gave oral evidence, with the assistance of an experienced court-approved translator, and was cross examined by Mr Bedenham.
- When considering the consistency of what the Claimant asserts in the three statements he has signed, what the Claimant is recorded as saying when his age was being assessed and the evidence that he gave in court, therefore, I have considered carefully whether any inconsistencies or other matters in what he has said which might count against him may be explicable as a result of mistranslation. In doing so I have also borne in mind that the Claimant says in his second witness statement that, before making it, his earlier statements were read back to him in Pashtu to make sure he had understood what he had signed and that, in his second statement, he decided to make four "clarifications" and one correction (about his date of birth) in respect of them. Subject to those matters, therefore, he would appear to have been satisfied that what is stated in them was true.
- In considering his evidence I have borne in mind that Dr Chisholm considers that the Claimant does not meet the criteria for any mental health diagnosis, such as depression or PTSD, or for any other diagnosis and that there was no evidence of a cognitive impairment, such as a learning difficulty or from a head injury (given that the Claimant has stated that he suffered severe beating by police and a head injury whilst in Bulgaria).
ii. the Claimant's background
- The Claimant is an Afghan. He says that he lived with his parents and his young brother in Nareth, a village in the district of Shegal in the Kunar province of Afghanistan. He claims that his family was relatively wealthy: they had a big house, they owned a lot of land and they employed four or five farmers to work it. He also claims that they owned a taxi and employed a driver for it. I shall assume that these claims are true.
iii. the circumstances in which the Claimant left Afghanistan
- The Claimant says that his father, who was an educated man who could speak English, used to work for a British NGO or company. He says that his maternal and paternal uncles and cousins were members of the Taliban. They said that his father should stop working for the infidels but that he refused to do so. As a result, he says, his father was a target for the Taliban who attacked their home, killing his mother and his brother (who was then 9 months old). His father then decided to leave Afghanistan taking the Claimant with him which they did shortly after the attack.
- There are a number of differences in the Claimant's accounts of this incident. In his Home Office statement, for example, he said that, when he was not at home, his house was attacked and "shot at" and that his mother and brother were "shot". He told Ms Seymour and Ms Prince, however, that, at the time of the incident, he was hiding in a barn to avoid detection. He told Dr Chisholm that he was in the fields at the time when the Taliban attacked the house with a grenade or grenades and that he did not witness "the explosion".
- For present purposes, however, I am prepared to assume that the Claimant left Afghanistan with his father because his mother and brother were killed by the Taliban and they feared for their safety.
iv. the Claimant's journey to the United Kingdom
- The Claimant says that he and his father initially went to Iran where he was separated from his father (who had his Taskera) by an agent who put them in different vehicles for the next stage of their journey.
- The Claimant's account of his journey thereafter in his Home Office statement is that he was beaten by the police on entering Bulgaria who took his possessions (including his phone) from him and that he was held there for about 15 days, 10 days in a prison and 5 days in a camp. After he was released he said that he made contact with the agent using someone else's phone; that he was collected and then arrested again in Hungary and put in a camp. The agent then took him and others to a place he was told was London. In fact it was in Germany. When he learnt that he was in Germany about 9 days after reporting to the police there, he called the agent who collected and took him to Calais where he eventually managed to get on a train to the United Kingdom. He stated that he had been fingerprinted in three countries on his journey: Bulgaria, Hungary and Germany.
- There are again some differences in the accounts which the Claimant has given about his journey. In his Home Office statement and in his first witness statement, he claimed that the Bulgarian police had taken "my phone". When being cross examined by Mr Bedenham, however, he denied ever having had a mobile phone and said (when his previous claims were put to him) that he had been referring to a phone that an Afghan friend with whom he was travelling had lent him one so that his father could contact him. He had previously told Ms Thrussell and Ms Johnson, however, that he had not made any friendships, even though travelling with 40-50 people. His account of when he contacted the agent after he had been detained in Bulgaria was also not consistent: in his first witness statement, he said it was after he had been released from the camp; in cross examination he said it was after he was released from the prison in which he was held. I have also had difficulty in reconciling (a) what the Claimant said about the length of his stay in a prison and camp in Bulgaria (15 days) and his claim that he was not questioned after he had been detained with (b) the short time between the date on which he was recorded as claiming asylum there (May 29th 2015) and the date on which he is recorded as having entered Hungary illegally (June 4th 2015). He also told Dr Chisholm by contrast that was kept in a camp in Bulgaria for only 7 days but for 15 days in Hungary.
- There are other aspects of the Claimant's account of what happened on his journey that raise questions about it. The Claimant has been unable to explain how the authorities in Bulgaria and Germany came to record his date of birth as they did if all that he told them was that he was 16. I do not attribute significance to the particular date recorded in Bulgaria. As it is the anniversary of his date of entry to that country, the date entered may merely have been intended to signify either that he did not claim to be, or that he did not appear to be, a minor or that the Bulgarian authorities did not want to treat him as such. Since the Claimant has said that he was advised not to claim to be under 18 in Bulgaria as he would then be kept there, it may well be the case that he did not claim to be under 18 for that reason, although he denies it. There is no satisfactory explanation from the Claimant why the German authorities recorded him as being born on June 18th 1997. When asked about it, he told Ms Thrussell and Ms Johnson that his age was disputed in Germany but also that "no one talked to me about my age". This reflects another unsatisfying aspect of his account of his journey. He says that he never claimed asylum in each of the three countries in which he is recorded to have done so and he claims that, when asked if he wanted to claim asylum, he said that he did not wish to do so. It is hard to understand in those circumstances why he would be recorded as having made any such claim. It is also hard to credit the claim in his Home Office statement that he did not realise that he was in Germany, rather than the United Kingdom, for some 9 days after he had reported to the German authorities.
- I accept that the journey from Afghanistan to the United Kingdom will inevitably have been difficult for the Claimant. I shall assume that it was also traumatic given that he says that he was separated from his father in Iran and beaten by the Bulgarian police (a claim that he supported by showing Ms Thrussell and Ms Johnson a scar on his head).
- Although there are inconsistencies in the Claimant's account of the incident which he alleges caused him to leave Afghanistan and of his journey to the United Kingdom, I have nonetheless approached his evidence that relates his age, therefore, on the assumption that these were both traumatic experiences he had about which some discrepancies in recollection are not necessarily indicators that his evidence may be unreliable. For present purposes, therefore, I do not propose to attach any weight to, or draw any adverse inference against the Claimant from, any of the inconsistencies or other matters to which I have so far referred.
v. the Claimant's education
- The Claimant's statements about his education in Afghanistan have been materially inconsistent.
- When he was asked in November 2015 by Ms Dodd whether he had attended school, he did not answer that question. Ms Seymour and Ms Prince stated, however, that, during their assessment in March 2016, the Claimant reported that "he attended school in Afghanistan at the age of 10 for one year. He was studying the English alphabet and was able to write his own name" but that "he did not attend school full-time as he had to remain at home to help his father on their small holding".
- When interviewed by Ms Thrussell and Ms Johnson in May 2016, the Claimant told them, however, that he was not required to work on the farm; that he had been put in a good school in the city by his father to which he was taken by car; and that he had gone to school some 2 to 2½ years before, but only for two to three and a half months because his uncles in the Taliban disapproved. If he was 10 when he started school in 2014 (as recorded by Ms Seymour and Ms Prince), this would have meant that he was only 12-13 years old when they, and Ms Thrussell and Ms Johnson, had assessed him. When asked about a village school by Ms Thrussell and Ms Johnson, therefore, he said that he never went to it and that he had only been to the school in the city (which he could not name).
- In his evidence in this court, however, the Claimant stated that he had attended the village school for a short time but did not like it and that his father had said that he would put him in a better school as he was not getting a good education. He denied ever saying that he had been to the village school when he was 10 or for a year or that he said that he did not attend full time as he had to help his father. The Claimant also said that had spent three months at the school in the city that his father arranged but he said that he could not remember how long that was before he had left Afghanistan. He also said that he had not mentioned to Ms Thrussell and Ms Johnson that he had been to the school in the city 2 to 2½ years earlier.
- The Claimant's accounts of what school or schools he went to, when, for how long and why he left, therefore, have been materially inconsistent.
- I also consider that, given his background, what the Claimant told Ms Thrussell and Ms Johnson about his general lack of education lacks plausibility. According to Ms Thrussell, young men from Afghanistan claim to have started school between 6 and 8 years old. When asked by her why that had not happened in his case, the Claimant said that he did not like going to school and that he liked learning to drive, driving cars and hanging out with his friends. On his own account, however, the Claimant's father was wealthy, well-educated, wanted the Claimant to have a good education and was able to transport him to be educated in a school in a city some distance from where they lived. That he might not have arranged for the Claimant to go to any school only some 2 to 2½ years before he was interviewed, that is to say when he was about 13 ½ or 14 (if his claim to be 16 was true), is implausible. His answer to the question they asked him (like some others that he gave in cross examination) did not address it.
vi. the Claimant's statements about his age
- There are also material inconsistencies in what the Claimant has said about his age.
- When asked by Ms Dodd, "did you celebrate your birthday" and "when were you told your age", the Claimant did not provide an answer to either question.
- In his statement in support of his asylum claim in November 2015, however, he stated that "my father told me I was 16 + I will be 17 on my next birthday". In his second witness statement the Claimant said that he wished "to clarify" what he had said in this statement and that his father had told him he would be celebrating his 16th birthday in London. It is unclear whether this "clarification" was intended to supplement his original statement or to correct in some way.
- In March 2016, as I have mentioned, he told Ms Seymour and Ms Prince that he had only ever celebrated his birthday once while in Afghanistan, when his father told him at that celebration that he was fourteen; that his father told him that they would celebrate his sixteenth birthday in England; and that he had turned 16 in the "last one to two months". This latter claim was inconsistent with his earlier claim to Ms Dodd and Ms Harrod in November 2015 that he was already 16.
- In May 2016 he told Ms Thrussell and Ms Johnson that he and his father had left Afghanistan in the fourth month of 2015 according to the Gregorian calendar (ie in April 2015); that his journey to the United Kingdom had taken 4-5 months; that he had celebrated his fifteenth birthday 3 months before leaving Afghanistan; that his father had told him, when he started his journey in 2015, that "you will be 16 soon", and that they would celebrate when they reached London. The Claimant also told them "everywhere I was arrested, I said 16. I was younger but I just said 16" as "I was nearly 16". When asked whether he had celebrated any birthdays in Afghanistan other than his fifteenth, he replied that, as it was a long time ago, "how would I remember".
- The Claimant stated in his first witness statement that he "was born on 1 January 1999". He has contended throughout, however, that the did not know his date of birth. In his second witness statement he sought to explain this assertion by stating that "the date was calculated when I first came to the UK based on what I know about my age" and that "all I know is that I was told by my father that I was 16 years old". This might possibly explain a belief about the year in which he was born. But it fails to explain how the Claimant made a witness statement asserting that he was born on January 1st in that year. Moreover his claim in his first witness statement about what his father had told him on leaving Afghanistan that he was 16 (which was repeated later in that statement) was inconsistent with what the Claimant had told Ms Thrussell and Ms Johnson that his father had then said, namely that he would soon be 16 (not that he was already 16) when they left Afghanistan and that he had knowingly said that he was 16 to the authorities in Bulgaria, Hungary and Germany when he was not that old. His claim that his father had told him in Afghanistan that his was 16 was also inconsistent with his statement to Ms Seymour and Ms Prince a few weeks before that he had turned 16 in the "last one to two months". Although the claim that his father told him that he was 16 is consistent with the Claimant's Home Office statement, it is also inconsistent with what is said to be his case in the Claimant's Amended Grounds.
- When cross-examined by Mr Bedenham about whether his father had told him that he was 16 or whether he had told him that he would be 16 on his next birthday, the Claimant's answer was that his father had not said that he was 16 or that he was going to be 16, only that they would celebrate his 16th birthday once they were in London or a peaceful place. Somewhat later, however, he said that his father had said that he was 16.
- In his first witness statement the Claimant also stated that "I have never celebrated my birthday". This is inconsistent with what he had told Ms Seymour, Ms Prince, Ms Thrussell and Ms Johnson. Moreover what he had told them was the last birthday that he had celebrated in Afghanistan was different: he told Ms Seymour and Ms Prince that it was his fourteenth; he told Ms Thrussell and Ms Johnson that it was his fifteenth. Moreover the denial in his first witness statement that he had ever celebrated any birthday leaves unexplained how he may have known when in the year his birthday was, since he had explained that to Ms Thrussell and Ms Johnson by reference to the celebration of his 15th birthday three months before he left Afghanistan in the fourth month of 2015. That statement to them was also inconsistent with his father telling him (as he ultimately asserted) that he was 16 before he left Afghanistan.
- The Claimant has made materially inconsistent statements, therefore, about celebrating his birthdays in Afghanistan and what his father told him about his age.
vii. the credibility of the Claimant's statements in relation to his age and education
- For the reasons I have given, the Claimant has given materially inconsistent evidence relating to both his age and his education. These in my judgment cannot be explained by poor recollection caused by any distressing experiences that he may have undergone in Afghanistan and during his journey to this country. Nor in my judgment are they to be explained by his state of mind or mistranslation during the process of assessment by the experienced social workers involved.
- The Seymour/Prince report records that, although initially apparently nervous, the Claimant became increasingly relaxed, even though he did not look confident. The report records that the interpreter pointed out that the Claimant did not understand all the questions put to him and that he had had to rephrase and repeat some and that on occasion the Claimant himself had asked for some questions to be repeated. It is plain, therefore, that steps were taken to ensure that the Claimant understood what he was being asked. The assessors did not suggest, however, that any answers he gave which they reported and relied on should be discounted because of his state of mind during their interview or by reason of any translation difficulties.
- Similarly the statements made by the Claimant to Ms Thrussell and Ms Johnson are not to be discounted on the basis of his claim that he was very distressed and upset when first being interviewed by them as a result of being late for his appointment or by any stress that he may have felt when being interviewed. The appropriate adult recorded in her notes that, before the first interview with Ms Thrussell and Ms Johnson, the Claimant was "relaxed and calm" and there is no record that he had explained to them (as he claimed when cross-examined) that he was anxious and uncomfortable. Her notes also bear out Ms Thrussell's evidence that generally he was very confident (although they also record his lack of comfort at the second interview when being pressed about statements that he had been recorded as making about his education and age).
- In court he was assisted in giving evidence by a very experienced court translator. He was self-assured and confident when giving evidence and being cross-examined.
- As I have found, the Claimant's accounts of what school or schools he went to, when, for how long and why he left have been materially inconsistent. In Dr Chisholm's view "it is expected that he would remember how many schools he went to and where they were (or it was), although he may have forgotten the name". In my judgment the Claimant gave materially inconsistent accounts to the two sets of assessors within six weeks of each other. He tried to reconcile them when giving evidence by suggesting that he went to two schools and by denying that he said some of what the assessors have recorded him to have said. I do not accept that what he has said has been inaccurately recorded by either set of assessors, something that he did not suggest in either of his two witness statements in support of his claim, or that they are the product of mistranslation. In my judgment the Claimant has not been telling the truth about his education in Afghanistan.
- I have also found that the Claimant has made materially inconsistent statements about celebrating his birthdays in Afghanistan and what his father told him about his age. I accept, as Ms Thrussell and Ms Johnson did, that in Afghanistan a date of birth does not have the same significance as it does in Europe and that birthdays are not traditionally celebrated there. The Claimant said in court that his were not celebrated, although his father would have liked to have done so, because his mother objected. In my judgment, however, that would have made any such celebration the more memorable. I do not consider that the inconsistencies about whether any of his birthdays were celebrated and, if so, which, are to be explained by any traumatic experiences he may have had in Afghanistan or on his journey to this country or that they are the product of mistranslation. Nor are his inconsistent statements about what his father told him. In my judgment the Claimant has been prepared to give evidence about his age that he must have known to be untrue. That was plainly so in relation to the statement in his first witness statement that he was born on January 1st 1999.
- In my judgment, therefore, the material inconsistencies in the Claimant's statements about his education and age are not to be explained by poor recollection caused by any distressing experiences that he may have undergone in Afghanistan or during his journey to this country or by the circumstances in which they were made. They are to be explained by his willingness to make statements that he was aware were untrue in the hope of supporting or defending his claim to be 16. That he was prepared not to tell the truth was illustrated not merely by the statement about his date of birth in his first witness statement but also by his denial on more than one occasion that he had said what he has been recorded as saying when previous statements were put to him.
- Having seen him give evidence I am satisfied that the Claimant's evidence on these and other matters was unreliable. His willingness to deny what he must have known was plainly the case was also illustrated at the start of his evidence in court. When the Home Office statement was initially put in front of him, he even denied that the signature on it was his when, as Ms Sabic accepted, it manifestly was.
- I have no doubt that the Claimant has been aware of the benefits to him in this country of being treated as a child. At the end of his first interview with Ms Thrussell and Ms Johnson when asked if he had any questions, he stated that "I am just 16, you guys are not giving me a bungalow or anything".
f. other matters
- The Claimant was assessed to be significantly more than 18 on the basis of his appearance and demeanour by the Chief Immigration Officer in September 2015, Ms Dodd and Ms Harrod in October 2015 and by Ms Thrussell and Ms Johnson in May 2016. Ms Seymour and Prince said that they had relied on his physical features and demeanour during the assessment to estimate his age. They thought that "his physical appearance was that of a late pubescent youth" and that "his coping skills, posture and interaction were that of a youth" when explaining why he appeared to be aged between 17 and 18. There is thus a difference of opinion on these matters.
- My own view of the Claimant having seen him giving evidence was that he appeared to be in his early twenties. I have decided, however, that such an impression is not one to which I should give any weight, as I am not familiar with how Afghan males mature, develop and behave and as, in any event, the Claimant gave evidence in May 2017 and individuals can mature rapidly.
- In reaching a view I have considered what Ms Seymour and Ms Prince said that they observed over two hours, including their observations about the Claimant's physical appearance and that he giggled inappropriately at times such as one would expect from a youth unsure as to how to handle himself. But I place more weight on the conclusions that Ms Thrussell and Ms Johnson reached, not merely because their observations were made over a longer period and over several sessions but also because of their greater experience of working with young Afghan males. They thought that he had clearly gone through the stages of puberty. They also thought that his demeanour and interaction was assured, controlled confident and calm (as generally he was in court) and that his behaviour was not consistent with his being a teenager. Ms Sabic sought to criticise certain inferences that they drew, for example, from how the Claimant dealt with a telephone call which the Claimant received shortly after their first interview had begun. But what confidence he displayed when dealing with it and how, for example, he responded to questions are inevitably matters of impression and informed judgment. There may well be legitimate questions about whether they should have attached weight to his response when asked whether he liked his teachers given translation problems in relation to this question. But that, however, does not in my judgment materially affect their overall conclusions on these matters. Moreover their judgment also receives some support from the fact that others had no doubt that the Claimant was not a child based on his appearance and demeanour (including staff at Campsfield House who raise concerns that a detainee may be a child if they have any).
- On balance, therefore, in my judgment the Claimant's physical appearance and demeanour tend to support the conclusion that he was not a child when assessed by the County Council. But I bear in mind that views as to age based solely on physical appearance can well be misleading.
- It appears that the Claimant has found difficulty in cooking and looking after himself in some respects. As the Thrussell/Johnson report stated, however, this is not necessarily an indication of youth but it is rather a result of "cultural norms" in Afghanistan. As the Claimant had on his own account had a privileged upbringing there, it is likely, given the role of young men and boys there, that he was not allowed or expected to undertake what are regarded as female chores or to cook for himself. Dr Chisholm subsequently found that the Claimant could care for himself but that he had never been taught to cook since men do not usually cook in that country (as the Claimant and the interpreter on that occasion told him). I am likewise not impressed by the suggestion that, as the Claimant struggles to find his way about in this country on occasion and to buy clothes unaided here, those problems are to be attributed to his youth. They are more likely to be attributable to his lack of English.
- Ms Sabic also pointed to certain statements that the Claimant made about his life in Afghanistan to support his case. The first was that the Claimant had said to Ms Thrussell and Ms Johnson that he was responsible for looking after a lamb bringing it grass. This might indicate that he was merely a boy. In cross-examination, however, the Claimant said that he could not recall saying anything like that, although he plainly had done, and (if it had been true) there was no reason why he should not have thought that he had in fact said it. Nor was there any reason (if so) why he should not have said that it was the case, even though he could not recall saying it. The second statement Ms Sabic relied on was that, when asked whether he had to be home at a certain time, the Claimant told Ms Thrussell and Ms Johnson that "I wasn't allowed out a lot". But the Claimant also told them, for example, that he was given quite a lot of money that he spent eating at the bazaar in the city centre and on Indian films as he liked "love and romantic movies"; that he had been able to go in his father's car to the city whenever he wanted; and that he had been doing so unaccompanied by his father beginning 2 to 2½ years previously. In my judgment neither of the statements on which Ms Sabic provides any significant support for the Claimant's case given that I have found that what the Claimant has said in support of his claims about his age lack credibility, a conclusion that is merely reinforced by his answers in cross examination about the first of the two statements.
- Although there are inconsistencies in the Claimant's accounts of the incident which he alleges caused him to leave Afghanistan and of his journey to the United Kingdom, I have nonetheless approached his evidence that relates his age on the assumption that these were both traumatic experiences he had about which some discrepancies in recollection are not necessarily indicators that his evidence may be unreliable. I have not attached any weight to, or draw any adverse inference against the Claimant from, any of the inconsistencies or other matters I considered when considering those matters.
- The accounts that the Claimant has given about his education and what he knows about his age, however, contain numerous material inconsistencies. In my judgment these are not to be explained by poor recollection caused by any distressing experiences that he may have undergone in Afghanistan or during his journey to this country. Nor are they to be explained by his state of mind when being interviewed or by mistranslations. They are to be explained by his willingness to make statements that he was aware were untrue in the hope of supporting or defending his claim that he was 16. In my judgment the Claimant has not told the truth about his education and his age. His appearance and demeanour support the view that he was not a child when interviewed and there are no significant factors that in my judgment support his claim to be one. I have no doubt that the Claimant was aware of the benefits to him in this country of being treated as a child and I have concluded that he has not told the truth to help obtain them.
- I have concluded, therefore, on the balance of probability, that the Claimant was not a child when he was detained and when his age was assessed on both occasions by the County Council.
- In my judgment, therefore, (i) the Claimant's detention was unlawful as being in conflict with article 28.1 and/or 28.2 of Dublin III and (ii) the Claimant was not a child when he was detained and when his age was assessed on both occasions by the County Council.
Note 1 The United Kingdom is bound by the Dublin III Regulation but has opted out of three other components of the CEAS. They are Directive 2013/33/EU laying down standards for the reception of applicants for international protection; Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted; and Directive 2013/32/EU on common procedures for granting and withdrawing international protection. The United Kingdom is, however, a party to, and governed by, earlier versions of those provisions: Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers and Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. [Back]
Note 2 That judgment assumes that national implementing measures are not required to identify specifically which of the options that article 27 permits, for example under article 27.3, which a Member State has chosen and that there is no difference between an appeal and a review of a transfer decision. The judgment also assumes that a transfer decision is not itself a decision to refuse a protection claim (which might give rise to a right of appeal to the Tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002) although it might lead to such a refusal. [Back]
Note 3 Paragraph 18(3) provides that “Any person detained under paragraph 16 may be taken in the custody of a constable, an immigration officer, or any person acting under the authority of an immigration officer, to and from any place where his attendance is required for the purpose of ascertaining his citizenship or nationality or of making arrangements for his admission to a country or territory other than the United Kingdom, or where he is required to be for any other purpose connected with the operation of this Act. [Back]
Note 4 See the definition in section 147 of the Asylum and Immigration Act 1999. [Back]
Note 5 this is the also interpretation of article 8(3)(f) expressed in paragraph  of the Advocate General’s Opinion inAl Chodor. [Back]
Note 6 See Al Chodor at -. This appears to have been the position of the United Kingdom: see paragraph  of the Advocate-General’s Opinion in this case. [Back]
Note 7 That is consistent the view expressed by the Advocate General that article 28.2 confers a power to detain when only when inter alia there is a significant risk of absconding, determined (as the Court found to be required) in accordance with objective criteria contained in a binding provision of general application. When that cannot be so determined, the detention is unlawful as the power is inapplicable. [Back]
Note 8 see for example Case 272/83 Commission v Italy  ECR 1066,  2 CMLR 426, at -. [Back]
Note 9 There is a question about how closely the EU test for a manifest error of assessment coincides with the UK public law test of unreasonableness: see EnergySolutions EU Limited v Nuclear Decommissioning Authority  EWHC 1988 (TCC),  BLR 625, at -, -. [Back]
Note 10 This is so even if it may be assumed that paragraph 16 of Schedule 2 to the 1971 Act serves to specify who may decide whether the power of detention conferred by article 28 of Dublin III may be exercised. [Back]
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