Court of Appeal sets out test for permission to appeal age assessments

A claimant seeking permission to appeal a local authority’s age assessment has to show he has a properly arguable case on the facts in the light of the evidence before the court, the local authority’s assessment and other relevant facts or circumstances, the Court of Appeal has ruled.

In FZ v London Borough of Croydon [2011] EWCA Civ 59, Sir Anthony May, President of the Queen’s Bench Division, said that at the permission stage in an age assessment the court should ask “whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing”.

“If so, permission should be refused,” the judge said. “If not, permission should normally be granted, subject to other discretionary factors, such as delay. We decline to attach a quantitative adjective to the threshold which needs to be achieved here for permission to be given.”

Sir Anthony pointed to the fact that – beyond the “very useful” general guidance given in the case of R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin) – there was no formalised central government guidance as to how local authorities should conduct age assessments. “It is a matter for consideration whether such guidance might be prepared.”

The case in question concerned an unaccompanied asylum seeker from Iran who claimed to be 17 years old. The UK Border Agency accepted his claimed date of birth when he arrived in a lorry on 20 August 2009. He was then referred to Croydon Council for child welfare services.

The local authority disputed his age, carrying out an age assessment and a subsequent review that concluded he was two years older. It was agreed that he had mental health difficulties as a result of experiences in Iran.

The appellant applied for permission to bring judicial review proceedings to claim the council had acted unlawfully.

However, at a hearing on 26 November 2010, a deputy High Court judge refused permission on the basis that there was no realistic prospect that at a substantive fact finding hearing the court would conclude that the claimant was younger than the local authority had determined him to be. This was on the basis that the authority had conducted a Merton-compliant assessment and that inconsistencies that had been relied on in the assessment were not material.

The deputy judge, James Dingemans QC, also rejected two procedural points – that provisional adverse conclusions were not put to the appellant, and the interview took place without an appropriate adult being present.

The Court of Appeal looked at three questions:

• Whether a local authority is obliged to give the person whose age they are assessing an opportunity to respond to provisional adverse findings which they are inclined to make
• Whether the local authority should in fairness offer the young person the opportunity to have an appropriate adult present at any age assessment interview, and
• How the court should address the question whether the factual issue of the young person’s age is arguable. Should it start by assessing the person’s positive claim, or should it first examine the apparent integrity of the local authority’s assessment?

Giving the judgement of the court, Sir Anthony May said it was “axiomatic” that 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.

“Obvious possible such points are the absence of supporting documents, inconsistencies, or a provisional conclusion that he is not telling the truth with summary reasons for that provisional view,” the judge said.

He added that in the absence of formal central government guidance, the court would not be prescriptive of the way in which this might be done, and would stand aside from requiring in every case a formal ‘minded to’ letter sent after the initial interview. “It is accepted that these matters should not be over-judicialised.”

Sir Anthony suggested that it was theoretically possible that a series of questions appropriately expressed during the course of the initial interview might fairly and successfully put the main adverse points which trouble the interviewing social workers.

However, he warned that that would be a haphazard way of doing it and one which would be intrinsically likely to lead to subsequent controversy in the absence of an expensive transcript of the interview.

Counsel for the appellant, Jan Luba QC, agreed that fairness could be achieved in this respect if the interviewing social workers were to withdraw from the interview room at the end of the initial interview to discuss their provisional conclusions.

“They could record these with brief reasons in writing on a form by means of which, upon returning to the interview, they could put the adverse points which trouble them to the person whose age they are assessing, thereby giving him the opportunity to deal with them,” the judge said. “The young person may be able to deal points then and there or he may say he needs more time, for example to obtain more documents. Either way, the interviewers could then withdraw again to consider his answers and reach their decision.

“This would be a modification of the procedure adopted in this case. We emphasise that this suggested outline procedure is not the only way in which fairness might be achieved in this respect.”

Sir Anthony ruled that, on this first issue, the procedure adopted in the case of FZ was not compliant with the requirements ofMerton. When the interviewing social workers had withdrawn to consider their decision, on their return they had presented the appellant with their conclusions without first giving him the opportunity to deal with them. The conclusions were also not expressed with sufficient detail, the judge said.

On the second issue, Sir Anthony said it was generally accepted in a variety of contexts that, where children or vulnerable people are to be interviewed, they should have the opportunity to have an appropriate adult present. The fact that the appellant had not been given this opportunity contributed to the Court of Appeal’s decision as to whether he should be given permission to proceed.

On the third and, in the court’s view, most important issue, the President of the QBD said (as mentioned above) the court should “ask whether the material before it raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing”.

Sir Anthony said this was a case where permission to proceed to a factual hearing on evidence should be granted.

“One factor contributing to that conclusion is that there were two procedural lapses,” he explained. “However, our main reason is that we do not consider that the appellant’s factual case taken at its highest could not properly succeed in a contested factual hearing.”

The judge pointed out that the appellant was recorded as giving a reasonably consistent factual account, an initial apparent inconsistency was capable of being explained, and there were no glaring inconsistencies in his account nor clear analytical reasons why his account was unbelievable.

In addition, a vaccination card supplied to support his claim was not obviously a forgery, and the dates it contained for various vaccinations were positively consistent with his claimed date of birth and positively inconsistent with a birth date two years earlier.

Sir Anthony said general credibility, as judged by others such as social workers, was not alone sufficient for the court to refuse permission for a factual hearing before the court, “when it is for the court to determine in a disputed case the fact of the young person’s age”.

The Court of Appeal therefore granted permission to bring judicial review proceedings to determine the appellant’s age.

Sir Anthony added that the Upper Tribunal had sufficient judicial review jurisdiction under s.15 of the Tribunals, Courts and Enforcement Act 2007 for the purpose of a factual determination of the appellant’s age.

Such a transfer was appropriate, he said, because judges in the Upper Tribunal have experience of assessing the age of children from abroad in the context of disputed asylum claims.

“If an age assessment judicial review claim is started in the Administrative Court, the Administrative Court will normally decide whether permission should be granted before considering whether to transfer the claim to the Upper Tribunal,” the President of the QBD added.

“The matter could be transferred for permission also to be considered, but the Administrative Court should not give directions for the future conduct of the case after transfer, and in particular should not direct a rolled-up hearing in the Upper Tribunal.”

Philip Hoult