High Court judge refuses application for interim relief in age assessment dispute

A High Court judge has refused an application for interim relief from a claimant who says he is 17 years old but was assessed by the London Borough of Hackney as aged between 21 and 25.

In AXA, R (On the Application Of) v London Borough of Hackney [2021] EWHC 1345 (Admin) the claimant (AXA) sought a mandatory interim injunction requiring Hackney to place him in "claimed age appropriate accommodation and provide support for his living needs".

The council had declined to provide him with accommodation suitable for a 17-year old.

The background to the case was that AXA is a national of Sudan. He claimed that his date of birth is 4 April 2004. He said that he and his mother fled from Sudan to Chad when he was young and that he subsequently lived there in a refugee camp.

At some point, he said, he travelled to Libya with Sudanese men and was put to work on a farm. He then travelled with others from Libya to Italy by boat. He then made his way to France where he spent a period of time in Paris before travelling to Calais where he resided in the "Jungle" camp.

The claimant said he entered the UK in July 2020 and claimed asylum the same day. On his arrival, the claimant was found with a sum of money which, he said, the Home Office sought to confiscate on the basis that it was suspected proceeds of crime.

AXA was referred to Hackney in August 2020 and was accommodated from 11 August. The council asserted that the claimant was interviewed on four separate occasions in the presence of an interpreter and an independent advocate as part of their age assessment process.

The age assessment was carried out by experienced and specially trained social workers, the council maintained. The assessors observed that the claimant's account contained a number of inconsistencies and concluded that he lacked credibility in certain areas.

The assessors were of the view that he was aged between 21 and 25 and recommended that his date of birth be recorded as 4 April 2000 giving him an age of 21.

Following that assessment, the claimant was moved from local authority accommodation to a hotel, the Holiday Inn in Old Street, London, which accommodation is provided by NASS, the National Asylum Support Service, for the Home Office.

Mr Justice Garnham stressed that he was concerned solely with the question of interim relief rather than whether permission to apply for judicial review should be granted.

The claimant’s counsel advanced two grounds of claim:

1. Hackney had reached the wrong conclusion as to the claimant’s age.
2. The council’s age assessment was unlawful or unreasonable.

On the first ground the claimant’s case was that he knows his age because his mother had told him it. His date of birth was set out on a UNICEF identity card which he subsequently lost.

But Mr Justice Garnham said: “In my judgment, that does not take the case much further forward, since it is the accuracy of his own account of his age that is in issue. Nor, in my judgment, does his reference to various events in his childhood greatly assist since there is no way of corroborating that information or accurately dating it.”

The judge described as “more powerful” the claimant’s reliance on the opinion evidence of those who had spent significant periods of time with him, notably his English tutor in the UK and the Unit Manager at his accommodation.

“However, whilst that is something that ought properly be taken into account, in my judgment it does not carry the same weight as the opinion of social workers trained in age assessment techniques, adopting a Merton-compliant approach, as the Defendants assert was the case here,” he said.

Mr Justice Garnham said: “In my judgment, this was a careful, skilful and conscientious age assessment by appropriately experienced and qualified social workers. I can see no proper basis on which it can be said that the defendant reached the wrong factual conclusion on the Claimant’s age.”

The judge said it was right to say that the age assessment did not refer expressly to the views of the manager of AXA’s accommodation or his tutor.

The judge found, however, that the claimant was unable to demonstrate that there was a serious issue to be tried, given the quality of the social work analysis.

He also saw no procedural errors in the way in which the age assessment was conducted. “Fundamental to that view is the fact that the Claimant had the benefit of both an interpreter and an independent advocate from the Appropriate Adult Service and that, at the beginning of the first and second interviews, he was informed of the reasons for the age assessment being conducted.”

Finally, the judge entirely rejected the suggestion that the social workers' conclusion that the claimant was aged between 21 and 25 was "entirely unexplained and unreasoned". He said: “Ultimately, age assessment is not a science capable of precise explanation; the whole content of the report went to explain the conclusion of its authors.”

Even if he had reached the contrary conclusion, Mr Justice Garnham said he would have dismissed the application in applying the balance of convenience.

He found that:

• The claimant’s case was on any view not a strong one and that was relevant to the balance of convenience.
• If it turned out that Hackney were right and the claimant was aged between 21 and 25, the interim order sought by the claimant would have the effect of placing an adult male with children aged under 18, a situation which was, “to put it at its lowest”, less than ideal.
• The claimant was currently housed by the Home Office in a hotel in which he had his own room with en-suite bathroom facilities. He was able to lock the door of his room. There was no evidence of intimidation or threats from other occupants. He had been provided with an Oyster card which enabled him to travel freely around central London. He was able to visit his college for tuition.
• It was right to say that because his current accommodation was provided by NASS, he was at risk, at least theoretically, of being moved. “There is, however, at least as yet, no evidence that that is likely in the near future.”

Viewing the matter as a whole, the balance of convenience would therefore not favour the grant of interim relief.