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Croydon/Home Office working agreement on asylum seekers whose age was challenged, judged lawful

Joshua Swirsky discusses a recent case that considered local authority responsibility for young asylum seekers whose age had been challenged.

In R (Birmingham City Council) v London Borough of Croydon & YG [2021] EWHC 1990 (Admin) [2021] EWHC 1990 (Admin) Morris J found that the duty social worker provided by the London Borough of Croydon at Lunar House’s asylum intake unit did not mean that Croydon assumed responsibility for asylum seekers judged by the Home Office to be adults.

Background to the case

The asylum intake unit at Lunar House is within Croydon’s area. In 2017 it entered into a working agreement or protocol with the Home Office relating to how young asylum seekers whose age was challenged should be received into its care.

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When a young person presented to the Home Office seeking asylum and claiming to be a child the Home Office carried out an ‘initial assessment’ using its internal guidance, ‘Assessing Age’.

In 2017 this guidance allowed for three potential outcomes:

  1. the young person was an adult,
  2. the young person was a child, and
  3. the young person might be a child but a local authority age assessment was needed.

In outcomes (ii) and (iii) the young person was then accommodated by the local authority.

However, with outcome (i) the young person was dispersed and accommodated as an adult by NASS (National Asylum Support Service).

A young person who has been dispersed can still then approach a local authority and can claim to be a child, thus triggering the need for an age assessment. This initial assessment is based primarily on physical appearance and demeanour.

This initial triage by the Home Office has been held to be lawful (BF(Eritrea) v Secretary of State for the Home Department [2020] 1 AER 396), albeit that now a Chief Immigration Officer and another senior immigration officer must be satisfied that the young person is at least 25 before outcome (i) could be applied.

Under the 2017 protocol, Croydon placed a duty social worker at Lunar House to receive young people initially assessed by the Home Office as children or possible children (ie outcomes (ii) and (iii). The social worker would also act as an ‘appropriate adult’ at initial assessments if asked to do so.

Facts of this case

In October 2017 YG, an asylum seeker from Eritrea, presented at Lunar House. The Home Office carried out an initial assessment and concluded that she was an adult (outcome (i)), although the paperwork was admittedly confusing.

There was some suggestion from Home Office records that Croydon’s duty social worker was present at her interview as an ‘appropriate adult’ and had at least acquiesced in the decision. The social worker had no recollection of YG and had never carried out an age assessment of any sort at Lunar House.

YG was dispersed and then presented to Birmingham claiming to be a child. Birmingham accepted her claimed age and has provided services to her ever since.

Arguments put forward on behalf of Birmingham City Council

Birmingham City Council alleged that Croydon acted unlawfully in allowing YG to be dispersed because its social worker had been aware that she claimed to be a child and that consequently she was a person claiming to be a ‘child in need’ in Croydon’s area. As such Croydon was at the very least under a Tameside duty to establish if any duties were owed to YG (see in R(KA) v LB Croydon [2017] EWHC 1723 Admin) and she should have been accommodated as a child pending these inquiries (ie an age assessment) (see R(S) v LB Croydon [2017] EWHC 265 Admin).

Morris J’s judgment

Morris J rejected Birmingham’s argument on the basis that the Home Office and the local authority had different duties aimed at different purposes. The presence of a duty social worker at Lunar House was administratively convenient for both the Home Office and Croydon as it produced a streamlined process for dealing with young people who were children or might be children but a local authority age assessment was needed (outcomes (ii) and (iii)).

This did not amount to adoption of responsibility for those found to be an adult by the Home Office (outcome (i)). If Birmingham was right then the whole initial assessment process carried out by the Home Office would become redundant as Croydon, if it continued to place duty social workers in Lunar House, would have to intervene with all young asylum seekers regardless of the Home Office’s initial assessment. This would have led to administrative confusion.

Joshua Swirsky, who represented London Borough of Croydon, is a barrister at Field Court. Christine Cooper, also of Field Court, represented Birmingham City Council.

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