Judge refuses permission for judicial review challenge over age assessment

A Deputy High Court judge has rejected a claimant's renewed application for permission to seek judicial review against an age assessment decision made by Essex County Council.

In Amadu, R (On the Application Of) v Essex County Council (Rev 1) [2021] EWHC 256 (Admin) the claimant contended that his date of birth was 6 October 2002, with the effect that at the date of the assessment (in August 2020) he was under 18 and therefore a child.

If the claimant was a child at the date of the assessment, then he would be entitled to be treated by Essex as a former "looked after child" under the Children Act 1989.

The council's decision was that he was over 18 at the date of the age assessment – the council assessed the claimant as being at least 23 years old.

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In considering the application for permission, Clive Sheldon QC, sitting as a Deputy Judge of the High Court, said that given that the relevant question in the substantial review would be a pure question of fact, the test for the grant of permission was whether there was "a realistic prospect, or arguable case that at a substantive fact-finding hearing the court will reach a relevant conclusion that the claimant is of a younger age than that assessed by the local authority and is or was on the relevant date a child": see J and R (F) v. Lewisham LBC [2010] 2 FCR 292 at [15], per Holman J.

On behalf of the claimant it was contended that "the material" that the judge needed to consider when making the assessment was that the claimant had consistently asserted that his date of birth was 6 October 2002 – he had given this date to the Home Office when assessed following his arrival in the United Kingdom in March 2020 – as well as to the council's officials who were carrying out the age assessment in August 2020.

In addition, that the claimant produced a copy of document which purported to be a birth certificate issued by the government of Sierra Leone which gave his date of birth as 6 October 2002, and that document had not been undermined by the government of Sierra Leone saying that it was not genuine.

However, Judge Sheldon said he read the decision in FZ as requiring him to look at all of the material before the Court, and from that material to ask whether it raised a factual case which, taken at its highest, could not properly succeed in a contested factual hearing.

The judge found that the “overwhelming evidence” before the Court was that the claimant was not under the age of 18 at the time of the assessment, but was well over that age.

“In my judgment, in spite of what the Claimant said to the Home Office, and maintained before the assessors, and in spite of the copy of what purports to be a birth certificate, when ranged against the other evidence a Court could not properly find that the Claimant was under the age of 18 at the time of the assessment,” he said.

The judge said the other material before the Court consisted of the following:

(i) The Claimant had provided several dates of birth and aliases to the government of the United Kingdom and to the German authorities, including October 6th 1998, October 5th 1997, October 6th 2003, October 10th 2000 and October 6th 2002 (in other words, he had given different dates of birth on different occasions, three of which placed him well over the age of 18 at the time of the assessment);

(ii) The Claimant claimed asylum in Germany as an adult;

(iii) When claiming asylum in Germany, the Claimant provided a school photo ID card, which is dated 2010. The Claimant explained to the assessors that this document was from his secondary school in Sierra Leone. If the Claimant was correct about his date of birth, then he would have been 8 years old when he commenced secondary school. In the professional opinion of the Council's assessors, the Claimant looks approximately 14 years old in the photograph;

(iv) When the Claimant first entered the United Kingdom on January 8th 2019, he reported his date of birth as October 6th 1998 (making him almost 22 years old at the time of the assessment).

(v) When the Claimant entered the United Kingdom on March 16th 2020, he provided the date of birth of October 6th 2003. When this date of birth was challenged by a social worker carrying out a needs assessment under the Children Act 1989, the Claimant gave a different date of birth: October 6th 2002;

(vi) In the opinion of the Council's assessors, the Claimant's physical appearance (based on their experience of conducting age assessments and working with unaccompanied asylum-seeking children and in particular those from West Africa, and on their understanding that trauma can have an impact on physical appearance) the Claimant's presentation (his physical presentation, his demeanour and interactions) was not that of a 17 year old, but of an adult.

(vii) When speaking to the assessors, the Claimant gave his age at various events which were inconsistent with his claimed date of birth: he said that he was 15 when he arrived in Germany (in 2015), but on his claimed case he would have been 13.

(viii) The Claimant made no attempt to counter the various points relied upon by the Council's assessors in his witness statement for the purposes of the judicial review proceedings, dated October 28th 2020: in particular, there is no mention of the 2010 ID document, or of the fact that he gave different dates of birth at different times, including when he arrived in the United Kingdom in 2019, or of the fact that he claimed asylum in Germany as an adult. Furthermore, it is notable that in his witness statement the Claimant did not provide his age at the various events in question, including important life events.

Judge Sheldon said that on the basis of this material, he considered that the claimant had no realistic prospect that, at a substantive fact-finding hearing, the Court would  conclude that he was a child when he was assessed by Essex.

He also found that:

  • The contention that the defendant relied solely on the assessors' views of the claimant's appearance in reaching their conclusion was not arguable.
  • It was not arguable from a review of the assessment record that the claimant did not have a fair and proper opportunity, at a stage when a possible adverse decision was no more than provisional, to deal with important points adverse to his age case which may weigh against him. “Although the Court of Appeal in FZ caution against interviewers raising the main adverse points during the course of the interviewing process, they do not decide that this is not legally permissible. When looking at the assessment record, it is clear that the main adverse points were put to the Claimant head-on, and he was given a full and fair opportunity to deal with them.”

The Deputy High Court judge concurred with the view expressed by Linden J. when considering the application for permission on the papers: "The evidence in relation to his secondary school photo ID card is particularly telling but there were various other features of the case which pointed ineluctably to the conclusion that the claimant is a good deal older than he says he is".

Permission was therefore refused.

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