Upper Tribunal allows appeal over age assessment that failed to meet procedural safeguards

An Upper Tribunal judge has granted an asylum seeker a declaration that he was 15 at the age he entered into the country and when he was assessed by Wirral Metropolitan Borough Council, rather than over 18 and more likely 20 as the local authority concluded.

In AM v Wirral MBC the appellant asserted that he left his village in West Darfur in 2015, when aged 11, following attacks by the Janjaweed, a Sudanese Arab militia.

AM travelled initially to Libya, where he was ill-treated, trafficked and forced to work on farms. He subsequently travelled by boat to Italy, then through various European countries before entering the UK on 7 February 2019.

The appellant said he was born on 15 December 2003, but the Home Office disputed his age, identifying him to be aged 23 in February 2019.

AM was referred to Wirral as a putative child in its area seeking support and accommodation under the Children Act 1989.

Following a single session meeting on 12 July 2019, Wirral Council issued its age assessment the following month.

A letter before action was sent to the council challenging the lawfulness and procedural fairness of the age assessment, observing that there had been a failure to put adverse matters to the applicant by means of a ‘minded-to process’.

A further interview was conducted in September and an addendum assessment, maintaining the council’s decision on AM’s age, was issued in November 2019. Adverse reliance was again placed upon the applicant’s appearance and demeanour. The assessors also relied upon inconsistencies in the applicant’s account of his personal history, identified as a changing story.

Upper Tribunal Judge O’Callaghan noted AM had been consistent as to his claimed date of birth throughout.

The judge found, amongst other things, that:

• There was no merit to the applicant’s ground of challenge based on the alleged lack of experience of the assessing social workers. The judge did, however, address an issue with the September meeting being conducted by one social worker on their own.
• The facts were suggestive that despite the appearance of a conclusive approach having been adopted in the August decision, accompanied by the failure to confirm to the applicant’s solicitors that it was a provisional view, the social worker handling the September meeting intended it to be a form of minded-to meeting. But he conducted it in the flawed manner by which he understood such process to be undertaken. “He was unaware as to the basic procedural requirements of such process.”
• The subsequent service of the August decision at the September meeting was intended to confirm the council’s decision as to age, despite the second [more experienced] social worker not having heard the applicant’s observations at the meeting and therefore not considered them. “Such process was fundamentally unfair as it failed to comply with the minimum standards of fairness established by Merton.”
• The minded-to meeting in November 2019 was simply a rubber-stamp exercise in approving the August decision and not a genuine exercise of the minded-to process. “There was no genuine, open-minded, consideration of the applicant’s information or explanation.”
• In the circumstances, the further action undertaken by the council of holding the November minded-to meeting and the subsequent issuing of the addendum November decision did not result in a genuine fresh decision that could be considered to have been reached by fair methods. “Consequently, the identified procedural impropriety was not cured.”
• The judge concluded that the age assessment undertaken by the respondent by its decisions of August and November was unlawful by application of unfair procedure in respect of the minded-to process.
• Wirral’s conduct of the July meeting was subject to unfairness in respect of an unsuitable interpreter being used and so care was to be applied when considering any discrepancies or inconsistencies identifiable between the information provided at this meeting by the applicant and that provided by other means. “Such care was not undertaken by the assessors when relying upon discrepancies and inconsistencies flowing from information provided at this meeting, when considered with other evidence, and such procedural unfairness unlawfully infected the July and November decisions.”
• The opportunity for AM to address issues adverse to his assertion as to age was not provided. “The adoption of such approach was not consistent with required procedural safeguards.”
• The evidence relied upon by Wirral as to the applicant’s appearance was wholly incapable of sustaining the weight placed upon it.
• The applicant was truthful in some aspects of his history, but deliberately misled on several others. However, the judge said that, when undertaking his holistic assessment, he was mindful that there were complex reasons for migrants not being wholly truthful as to the aid they received from human traffickers.
• The applicant was recorded as growing 5.6cms in a little over 15 months (from June 2019 to October 2020), from 5 feet 5 inches to 5 feet 7 inches. “I am satisfied that the increase in height and weight since June 2019 is the result of an adolescent growth spurt and not a rare instance of growth of a 20+ year-old.”

The judge’s findings of fact included that AM was informed as to his age by his mother when he was aged 5, he was born on 15 December 2003, he was 15 when he entered the UK, and he was 16 at the date of the hearing before the Upper Tribunal.

Edward Taylor, from Osbornes Law who acted for AM with counsel Antonia Benfield of Doughty Street Chambers, said: “This judgment should serve as a reminder to all local authorities to obey procedural safeguards in the age assessment process. I am firmly of the view that if Wirral Council had followed correct procedures, maintained an open mind and undertook adequate investigations, they would have accepted AM’s age at first instance.”

AM was supported through the process by Roxanne Nanton from the Refugee Council.

A spokesperson for Wirral Council said: “Wirral Council takes very seriously its responsibility to help those seeking asylum in the UK and will be reviewing its processes to ensure they are conducted to the very highest standards.

“Making an age assessment and doing it well is complex. This presents a national challenge for all children’s services. We regret not doing this work as well, on this occasion, as we would like. However, we can confirm that the young person concerned has at all times, upon arrival in the Wirral area, been supported by the Authority and received education and continues to do so.”