The affect of age evaluation choices on unaccompanied asylum-seeking kids coming to the UK is large. As we explored in this text, an age evaluation determination will have an effect on a teenager’s entitlement to social work help and care. It would even have implications for the way their asylum declare is handled by the Residence Workplace and finally their capability to stay within the UK.
For these causes, it’s essential that if a teenager receives a destructive age evaluation determination, they will entry efficient authorized recommendation for any potential challenges.
Whereas the Excessive Court docket has beforehand discovered the authorized distinction between preliminary age assessments (or transient enquiries) and full age assessments to be irrelevant, the excellence between the 2 stays prevalent in follow. I’ll due to this fact discover them individually.
Grounds to problem preliminary age assessments
Preliminary age assessments carried out by an area authority or the Residence Workplace may be arduous to problem. As we explored right here, these are transient, visible assessments the place the related native authority or the Residence Workplace will interact with the younger particular person and set up whether or not, primarily based on their presentation and manner, they’re or might be a toddler.
The native authority wants to find out whether or not it is rather apparent that the younger particular person is over 18 or whether or not a extra extended enquiry (full age evaluation) is required. This was established within the case of R (B) v Merton [2003] EWHC 1689 (Admin).
Procedural challenges
There has not been an enormous quantity of litigation on preliminary age assessments, in contrast with full age assessments. Nevertheless, the courts have established that, though transient, they nonetheless must be procedurally truthful.
The Excessive Court docket has beforehand discovered that an preliminary age evaluation was essentially unfair because it was carried out with out an interpreter, with out an applicable grownup being current and with out giving the younger particular person the chance to reply. The courtroom made it clear that it was the mix of those three points that led to the evaluation being unfair. This doesn’t imply that, for instance, applicable adults require to be current for an preliminary age evaluation to be lawful. Which means that equity will must be assessed on a case-by-case foundation, relying on the person information of the case.
In follow, when taking a look at potential procedural challenges, authorized representatives might want to discover out whether or not sufficient safeguards had been in place when the evaluation was carried out and whether or not it may be argued it was finally unfair.
Substantive challenges
The Excessive Court docket has beforehand discovered that because of the transient nature of preliminary age assessments, native authorities should remember the extensive margin of error in these circumstances. The courtroom accepted that bodily look is an unreliable foundation for an age evaluation and that the good thing about the doubt should be utilized in these circumstances. Which means that the place staff have any doubt about whether or not the younger particular person might be a toddler, they have to take them into their care. If required, the native authority can then proceed to hold out a full age evaluation at a later stage.
A neighborhood authority is underneath an obligation to provide sufficient causes for an age evaluation determination, even when these causes needn’t be prolonged (see, for instance, this current Interior Home case).
When it comes to difficult these choices, the start line is, due to this fact, to acquire the explanations from the native authority. This may be difficult relying on the native authority’s personal inside processes. A approach round this may be to submit an pressing topic entry request as quickly as directions are acquired and ask for full data.
After receiving the data and causes for a destructive evaluation, authorized representatives ought to think about whether or not the social staff had been aware of the extensive margin of error when making the choice. If applicable, they need to additionally think about whether or not the good thing about the doubt ought to have been utilized.
The underside line in these circumstances is {that a} determination to deal with a teenager as clearly over the age of 18 ought to solely be taken by an area authority in circumstances the place the younger particular person presents clearly as an grownup. These choices shouldn’t be the norm, they usually shouldn’t be taken in borderline circumstances. The important thing to those challenges is to argue {that a} cheap social employee would have utilized the good thing about the doubt when finishing up that very same evaluation.
Grounds to problem full age assessments
As soon as a teenager is taken into care, the native authority has the ability to hold out a full age evaluation to determine their age if doubt nonetheless exists. Full age assessments may also be carried out by the Nationwide Age Evaluation Board (NAAB), employed by the Residence Workplace, following its introduction within the Nationality and Borders Act 2022. Native authorities could refer circumstances to the board underneath Part 50 of the 2022 Act. The Residence Workplace do the identical underneath Part 51 of the 2022 Act. For instance, this may increasingly occur if the Residence Workplace disagrees with an age evaluation determination made by the native authority.
Procedural challenges
As famous above, age assessments should be carried out in accordance with the main case of R (B) v Merton [2003] EWHC 1689 (Admin) and subsequent related case legislation. This is applicable whether or not carried out by an area authority or by NAAB.
Broadly talking, the procedural necessities for a Merton-compliant age evaluation may be summarised as follows:
- The evaluation ought to be carried out by two social staff, certainly one of whom ought to be educated in finishing up age assessments
- Minimal safeguards ought to be in place together with entry to an efficient interpreter and an applicable grownup to help the younger particular person all through the evaluation
- The younger particular person ought to be given the alternative to correctly reply to any antagonistic level that the social staff are minded to carry in opposition to them
- The native authority ought to present sufficient causes when making a destructive determination
Failure by an area authority to adjust to any of those necessities can provide rise to a possible problem of a destructive age evaluation determination. Nevertheless, once more, this may depend upon whether or not procedural flaws have impacted the general equity of the evaluation for the younger particular person. As such, this may must be assessed on a case-by-case foundation, wanting on the particular, particular person information.
Substantive challenges
Merton and subsequent case legislation additionally outlined the method that native authorities ought to undertake when coming to a call following a full age evaluation being carried out.
First, full age assessments ought to be holistic. Whereas bodily look and presentation may be related components, an area authority also needs to give weight to different sources. The younger particular person’s background ought to be obtained together with their household, instructional historical past of their nation of origin, particulars of their journey to the UK and of some other related expertise within the UK. For instance, whether or not the younger particular person was a sufferer of trafficking into the UK.
Social staff also needs to search and think about enter from different professionals that know and have been supporting the younger particular person. These might embrace foster carers, help staff and lecturers. Failure to hunt or think about materials proof from different professionals might give rise to a possible problem to a destructive determination.
Equally to preliminary age assessments, native authorities ought to apply the good thing about the doubt when finishing up full assessments. In follow because of this if, after contemplating all of the proof, the social staff nonetheless have any doubt as as to if the younger particular person might be a toddler, then they might want to think about them a toddler.
In our expertise, that is maybe the commonest floor to problem a full age evaluation. When studying a call, authorized representatives ought to think about whether or not the explanations offered point out that the social staff would possibly nonetheless be unsure and lift a problem accordingly.
Lastly, as with different judicial evaluation actions, an area authority determination may be challenged primarily based on its conclusions being irrational or unfounded. This is able to apply to circumstances the place, primarily based on the obtainable proof, it may be argued that no cheap native authority would have reached the identical conclusion.
Responsibility to reassess and new proof
The courts have additionally established that age assessments are provisional choices. In L v Angus Council [2011] CSOH 196, the Court docket of Session discovered that these choices are ‘basically provisional’. Which means that an area authority can have an obligation to hold out a recent evaluation if new and materials proof referring to the younger particular person’s age is offered.
New proof might embrace supporting proof from professionals that was not beforehand obtainable. It might additionally embrace documentary proof confirming the younger particular person’s age. On this level, in R v Oxfordshire County Council IJR [2015] UKUT 00429 (IAC), the Higher Tribunal discovered that the place an id doc has been authenticated and offered to the native authority, a teenager’s age must be accepted. This ought to be no matter any discrepancies or different points arising from an earlier age evaluation.
What this additionally means is that the place a problem to an earlier age evaluation has been unsuccessful or a possible problem is time-barred, a brand new problem would possibly come up if the native authority refuses to think about new materials proof put ahead or to hold out a brand new evaluation.
Treatment: judicial evaluation
Regardless of the 2022 Act offering for a proper of enchantment to those choices, these provisions haven’t been enacted and the one treatment obtainable to problem age assessments continues to be, typically talking, judicial evaluation.
The important thing to quite a lot of these challenges will lie in pre-litigation correspondence. At this stage, authorized representatives ought to guarantee they put ahead all grounds, each procedural and substantive, that can type a part of the potential judicial evaluation.
Additionally it is essential that each one obtainable new proof regarding the shopper’s age and presentation is distributed to the native authority as early as potential together with a request that they rethink the choice. This is essential, particularly in preliminary age evaluation circumstances the place the extensive margin of error has been accepted by the courts. Due to this fact, any supporting proof may be key to solid doubt on the preliminary determination.
Importantly, the time bar for these challenges continues to be three months from the date of the preliminary determination. This doesn’t imply when the choice was written or communicated, however quite when it was made. That is whatever the consequence of the pre-litigation correspondence. It’s important to provide the native authority the chance to rethink however authorized representatives should be aware of the time restrict that applies to difficult these choices.
Process in England and Wales
The place in England has not too long ago been clarified by the Higher Tribunal.
Challenges to age evaluation choices made by the NAAB should be introduced within the Higher Tribunal. In these circumstances, the respondent is the Secretary of State for the Residence Division.
Just a few challenges in opposition to the NAAB’s age assessments have succeeded not too long ago. In ALK, for instance, the Higher Tribunal discovered the board’s evaluation to be procedurally and considerably flawed. The tribunal discovered that little weight might be positioned on the evaluation, finally discovering the younger particular person to be their acknowledged age.
Alternatively, age evaluation choices made by native authorities are lodged within the Administrative Court docket and may be later transferred to the Higher Tribunal.
Following the Supreme Court docket determination in R (A) v London Borough of Croydon [2009] UKSC 8, the courts can perform a fact-finding train and may finally decide the appellant’s age. When this occurs, the procedural challenges are more likely to fall away, though they’ll nonetheless be related within the courtroom’s evaluation of how a lot weight must be given to the age evaluation.
If a fact-finding train is carried out by the courtroom, the younger particular person might be anticipated to provide proof. Along with this, some other supporting proof ought to be lodged with the courtroom. This could embrace witness proof from third events which have engaged with the younger particular person, documentary proof in addition to knowledgeable proof (e.g. unbiased social work reviews, psychological reviews, nation knowledgeable reviews).
Process in Scotland
The state of affairs in Scotland is much less clear.
In relation to age assessments carried out by native authorities, in 2024 within the case of Abdullah, the Court docket of Session discovered that judicial evaluation was not a reliable treatment and that declarators of age ought to be pursued as a substitute.
However, whereas Abdullah has not been overturned, there have been subsequent Court docket of Session choices since then (see, for instance, Ibrahimi at [3]) indicating that judicial evaluation is a reliable treatment in relation to native authority age assessments.
This has been justified on the idea of the 2022 Act being introduced into pressure post-Abdullah, bringing each native authority age assessments and the board’s age assessments underneath statutory provisions.
Most not too long ago, in QAN, the courtroom clarified that judicial opinions on this context can solely take a look at whether or not native authorities erred in legislation of their choices. In different phrases, in contrast to courts in England, the Court docket of Session can’t decide a teenager’s age within the context of a judicial evaluation. As issues at present stand it seems that each judicial opinions and declarators of age would possibly due to this fact nonetheless be competent when difficult native authorities’ age assessments post-2022 Act in Scotland. Nevertheless, the choice in QAN makes it clear that if a teenager needs for the courtroom to find out their age, a declarator of age ought to be pursued.
Conclusion
As mentioned right here, the overwhelming majority of younger people who find themselves discovered to be adults by the Residence Workplace on arrival are later discovered to be kids by native authorities, as soon as correct assessments are carried out.
Age evaluation challenges may be complicated and time-consuming, however it’s essential for younger folks to have the ability to entry authorized recommendation and illustration on this. It’s important for younger folks to have a good likelihood at having their age correctly assessed as age choices is not going to solely have an effect on their lodging, help and training entitlements but in addition their capability to stay within the UK and be granted safety.
Importantly, age evaluation choices may be challenged on public legislation grounds, each on procedural and substantive grounds. Nevertheless, relying on the circumstances, it’s also open to a teenager to ask the courtroom to find out their age, quite than for the choice to return to the native authority.
