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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AB v Kent County Council [2020] EWHC 109 (Admin) (23 January 2020) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2020/109.html Cite as: [2020] EWHC 109 (Admin), [2020] WLR(D) 52, [2020] 4 All ER 235, [2020] PTSR 746 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
![]() | Claimant |
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- and - |
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![]() ![]() |
Defendant |
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Ms Rowlands (instructed by Invicta Law) for the Defendant
Hearing dates: 10 - 11 December 2019
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Crown Copyright ©
The Hon. Mrs Justice Thornton :
Introduction
(1) the lawfulness of anabbreviated
assessment of age by a local authority, based on physical appearance and demeanour, which does not comply with the full panoply of procedural safeguards laid down in caselaw for such assessments and are often referred to as "Merton compliant" assessments, after the leading case of R (B) v London Borough of Merton [2003] 4 All ER 280; [2003] EWHC 1689 (Admin);
(2) The applicability of the recent Court of Appeal decision in BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872, to anabbreviated
assessment by a local authority.
Factual background
Chronology of events
"Ms Carter and I reflected on our observations of and interactions withAB
and the views given by both Ms Mead Ms Nicholls and Mr Carter. We considered the guidance provided by the Association of Directors of Children's Services (ADCS) on age assessment 2015) and the Merton caselaw judgement that "there may be cases where it is very obvious that a person is under or over 18. In such cases there is normally no need for prolonged inquiry". From this we felt it was obvious to both ourselves and to experienced immigration officers, including KIU's [
Kent
Intake Unit's] Safeguarding Lead that
AB
presented over 18 years of age. As such we did not consider it appropriate for
AB
to be accommodated and supported as a child by the local authority, whilst a prolonged age assessment was completed. Particularly as to accommodate
AB
at his claimed age would mean him being placed with a foster family and potentially very vulnerable young children. We concluded that
AB
should be returned to the Home Office to be supported as an adult."
The assessments of AB's
age
"...your claimed age has not been accepted.
However, since your physical appearance and demeanour does not very strongly suggest that you are 25 years of age or over, the Home Office will treat you according to the processes designed for handling asylum claims from children, until further evidence becomes available. This does not mean that the Home Office has accepted your claimed age. We will take a full decision on your age when all available evidence is collected, including the opinion of the relevant local authority."
"An initial impression of age range is formed based on height, facial features including facial hair, skin line/folds, etc; voice tone, and general impression... The applicant has lines on his forehead, a prominent adam's apple and has 5 o'clock shadow.
The applicant ...said that his parents told him his age two years ago. They did this because he said that he started shaving early. The applicant did on occasions, interrupt the interpreter when challenged over his age.
...based on his size, facial and body hair, behaviour and my experience I am fully satisfied that he is significantly over 18 years of age..."
"My initial reaction on seeingAB
was that he was not the age of 15 as claimed by him. He has strong stubble on his chin, what appeared to be healed acne scars on his face, he appears comfortable in his body and is in proportion. He presented as irritated that he was being questioned, he was jigging his leg up and down and was sighing. He appears confident. On speaking to him he stated he was 15 years old and he knows this as his mother told him. He has no documentary evidence to support this claim and stated that he shaved once a week and had done so for the last two years, this information was volunteered without prompting. He gave long confident answers to questions asked and told us that he felt the UK was an advanced country and that we should have the
ability
to refer for medical testing of age.
Taking all of the information into account I do not believe that he is 15 years as claimed would place him at around 20 to 21 years. I make this judgement based on my work with asylum seeking children of which I have 16 years experience."
"...AB
presents as being approximately 5'6" in height and of a small build with his head, hands and feet presenting as proportionate for the rest of his body.
AB
has established facial hair growth across his jawline and around his mouth and acne scarring across his cheeks that presents as having been well established and having occurred some time ago. There are some faint lines around
AB's
eyes and his Adam's apple is visible.
AB
speaks with an even toned voice and presents as calm and assertive when discussing his age and circumstances. On occasions
AB
presented as irritated by the questioning and gave sustained eye contact. This presentation is consistent with the reports given by Tracey Nicholls and Cassandra Mead who described
AB
as "confident" and openly challenging them when questioned
about
his age. Collectively this indicates to the assessors
AB's
demeanour is not consistent with a 15-year-old child.
Although puberty can occur at different times for young people, it is considered to usually occur in a particular order with the head, hands and feet growing first before the legs and arms and the trunk of the body. This sequence of growth means adolescents may feel clumsy as they appear out of proportion…AB
appears to have experienced physical development in all these parts of his body and also appears to be accustomed to his current body shape/size which indicates to me that is a young person who has already progressed some time ago through puberty and his physical development to adulthood.
As a result it is the professional opinion of the assessors thatAB
presents physically and in his demeanour as more consistently with someone aged between 20 and 25 years of age than a young person who is 15 years of age.
As it is considered thatAB
presents very clearly as an adult well over the age of 18 years old, in line with guidance given in R(B) v Merton London Borough Council... and the ADCS Age Assessment guidance (2015 page 6)
Kent
County Council has not undertaken a prolonged enquiry or a full Merton case law compliant age assessment."
"Based on my observations ofAB
over the course of the whole day I do not believe he is over the age of 18. His height and build was slight even for a 15 year old boy. I do not agree that his body hair is
abnormal
for an Afghan boy of his claimed age. His behaviour outside of an interview setting appears to me to be in line with other Afghan 15 year olds I have spent time with, particularly his reluctance to be alone without distraction and his polite manner in approaching me and requesting things. He was irritable later in the day but I interpreted this not as maturity but rather immaturity combined with extremely high levels of fatigue from being constantly woken and interviewed. From the discussion I had with him regarding his age, all of the information which he gave was consistent and matched up with his given age. I have no reason, based on my interactions with
AB,
using my past experience, to disbelieve that he is 15.
Further to this I do not believe that it is possible to make a definitive assessment of a young person's age in the circumstances in which I sawAB.
His extreme fatigue will certainly have influenced his mannerisms, interactions with others and usual presentation. The effects of his journey to the UK, likely lack of access to hygiene, poor nutrition and possible semi starvation, were still very much present and these factors are known to cause minors to present as older. As well as this he was in a location surrounded by adults (as he likely was before arriving also) so it would be impossible to observe how he behaved around other individuals of his own age or how that might differ from how he interacted with adult professionals".
"Is the person presenting clearly and obviously child? No
Is the person presenting clearly and obviously an adult? No…
…
Conclusions
It is not clear and obvious based on your appearance that you are either an adult or a child. The information that you have provided has inconsistencies that you were unable to explain and therefore to ensure a fair service, it was deemed necessary to conduct a Merton compliant age assessment to allow a thorough assessment of your age."
Legal Framework
Purpose of the assessment
(1) The purpose of an age assessment is to establish the chronological age of a young person.
Burden of proof and benefit of the doubt
(2) There should be no predisposition, divorced from the information and evidence available to the local authority, to assume that an applicant is an adult, or conversely that he is a child.
(3) The decision needs to be based on particular facts concerning the particular person and is made on the balance of probabilities.
(4) There is no burden of proof imposed on the applicant to prove his or her age.
(5) The benefit of any doubt is always given to the unaccompanied asylum-seeking child since it is recognised that age assessment is not a scientific process.
Physical appearance and demeanour
(6) The decision maker cannot determine age solely on the basis of the appearance of the applicant, except in clear cases.
(7) Physical appearance is a notoriously unreliable basis for assessment of chronological age.
(8) Demeanour can also be notoriously unreliable and by itself constitutes only 'somewhat fragile material'. Demeanour will generally need to be viewed together with other things including inconsistencies in his account of how the applicant knew his/her age.
(9) The finding that little weight can be attached to physical appearance applies even more so to photographs which are not three-dimensional and where the appearance of the subject can be significantly affected by how photographs are lit, the type of the exposure, the quality of the camera and other factors, not least including the clothing a person wears.
Conduct of the assessment
(10) The assessment must be done by two social workers who should be properly trained and experienced.
(11) The applicant should be told the purpose of the assessment.
(12) An interpreter must be provided if necessary.
(13) The applicant should have an appropriate adult, and should be informed of the right to have one, with the purpose of having an appropriate adult also being explained to the applicant.
(14) The approach of the assessors must involve trying to establish a rapport with the applicant and any questioning, while recognising the possibility of coaching, should be by means of open-ended and not leading questions. Assessors should be aware of the customs and practices and any particular difficulties faced by the applicant in his home society.
(15) The interview must seek to obtain the general background of the applicant including his family circumstances and history, educational background and his activities during the previous few years
(16) An assessment of the applicant's credibility must be made if there is reason to doubt his/her statement as to his/her age.
(17) The applicant should be given the opportunity to explain any inconsistencies in his/her account or anything which is likely to result in adverse credibility findings.
Preliminary decision
(18) An applicant should be given a fair and proper opportunity, at a stage when a possible adverse decision is no more than provisional, to deal with important points adverse to his age case which may weigh against him. It is not sufficient that the interviewing social workers withdraw to consider their decision, and then return to present the applicant with their conclusions without first giving him the opportunity to deal with the adverse points.
The decision and reasons
(19) In coming to the conclusion the local authority must have adequate information to make a decision independent of the Home Office's decision.
(20) Adequate reasons must be given.
(21) The interview must be written up promptly.
55. …there would be cases where it is so obvious, even on an initial assessment of appearance and demeanour, that a person was over 18 that to treat them as a child would be unjustified. That is of course also in line with the observations of Stanley Burnton J in Merton…
56. …it cannot be illegitimate for the Secretary of State to have a policy which requires immigration officers to make a detention decision on the basis of an initial assessment of the age of young asylum-seekers in circumstances where a Merton-compliant assessment is not available and there is no objective evidence of age, even though such an assessment may of necessity be confined to an assessment of appearance and demeanour…
57. That, however, is only half the story. If it is legitimate for the Secretary of State to make an initial decision based on appearance and demeanour only, it is incumbent on him to ensure so far as possible that such decisions take fully into account the wide margin of error which such decisions will necessarily involve, so that only those young people whose claims to be under 18 are obviously false are detained: in other words, anyone claiming to be a child must be given the benefit of the doubt…"
Grounds of challenge
(1) The age assessment was procedurally unfair and lacked a number of appropriate safeguards (e.g. failing to provide an appropriate adult; failure to account for cultural, racial and social differences).
(2) The Council should have conducted a Merton compliant assessment.
(3) The assessment was unreasonable, irrational, unreliable and failed to give sufficient consideration to material evidence and facts, and failed to give reasons.
(4) The Defendant's assessment was wrong as a question of fact. The parties were agreed that the factual assessment ofAB's
age should be transferred to the Upper Tribunal. They could not agree, however, whether permission had been granted for this aspect of the claim. I return to the point below.
Submissions of the Claimant
Submissions on behalf of the Defendant
Discussion
The law
"[27] Of course, there may be cases where it is very obvious that a person is under or over 18. In such cases there is normally no need for prolonged inquiry; indeed, if the person is obviously a child, no inquiry at all is called for. The present is not such a case. The difficulty normally only arises in cases, such as the present, where the person concerned is approaching 18 or is only a few years over 18. But the possibility of obvious cases means that it is not possible to prescribe the level or manner of inquiry so as sensibly to cover all cases."
"…Since there is no scientific proof available and the final decision involves the exercise of a judgement, it is never possible to be sure that the decision in a given case, particularly where an individual is close to 18, is factually correct. But perfection is unattainable and the approach adopted by the Secretary of State that, if the decision-maker is left in doubt, the claimant should receive the benefit of that doubt is undoubtedly proper" [A v LB Croydon; WK vKent
County Council [2009] EWHC 939 (Admin) per Collins J at §9]
"We conclude on reviewing the case law that application of the benefit of the doubt is nothing more than an acknowledgement that age assessment cannot be concluded with 100% accuracy,absent
definitive documentary evidence and is in the case of unaccompanied asylum seeking children who may also have been traumatised, unlikely to be supported by other evidence. On that basis its proper application is that where having considered the evidence the decision-maker concludes there is doubt as to whether an individual is over 18 or not, then in those circumstances the decision-maker should conclude that the applicant is under 18."
(AS vKent
County Council [2017] UKUT 00446 (IAC) at §20)
"…we find it difficult to see that any useful observations of demeanour or social interaction or maturity can be made in the course of a short interview between an individual and a strange adult. There may of course be cultural difficulties in such interview but there are the ordinary social difficulties as well.
The asserted expertise of a social worker conducting an interview is not in our judgement sufficient to counteract these difficulties. A person such as a teacher or even a family member, who can point to consistent attitudes, and a number of supporting instances over a considerable period of time is likely to carry weight that observations made in the artificial surroundings of an interview cannot carry (§19 – 20)." (decision of Mr Ockelton Vice President and Upper Tribunal Judge Peter Lane).
Application of the law to the facts
". . . What is meant by the observation that he appeared to be comfortable in his body? It is difficult to follow what this does mean and how a discomfort with a changing body can manifest itself. …"
"Given the impossibility of any decision-maker beingable
to make an objectively verifiable determination of the age of an applicant who may be in the age range of, say, 16–20, it is necessary to take a history from him or her with a view to determining whether it is true. A history that is accepted as true and is consistent with an age below 18 will enable the decision-maker in such a case to decide that the applicant is a child." (§28)
"Information from other sources
Foster carers, key workers, social care workers, advocates, teachers and college tutors may be involved in working with a child… and they are likely to have high levels of contact with the child or young person. Their observations of children and young people in different settings and interactions with peers and other adults can make a useful contribution to your assessments. It is good practice to gather the information available prior to conducting the age assessment interviews with the child or young person.
You will need to consider the weight given to different sources of information. For example you may attach greater weight to the views of a professional who has worked with a number of asylum seeking children and young people from the same country of origin as a child or young person being assessed than you would to someone who has no previous experience of unaccompanied asylum seeking children and young people."
Conclusion
Relief
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
CO/3209/2019
In the matter of an application for Judicial Review
BETWEEN:
Claimant
Defendant
UPON the hearing of the claim for judicial review on 10 and 11 December 2019
AND UPON the handing down of the judgment on 23 January 2020
IT IS ORDERED THAT:
BY ORDER OF the Honourable Mrs Justice Thornton DBE
Dated 23 January 2020