Cheshire East Council

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High Court judge finds for London borough in row with city council over calculation of age of asylum-seeker

The London Borough of Croydon has won a High Court case brought against it by Birmingham City Council over how an asylum seeker’s age was calculated.

In Birmingham City Council, R (On the Application Of) v London Borough of Croydon [2021] EWHC 1990 (Admin) Mr Justice Morris said he had been asked to determine the extent of the duties owed by Croydon to asylum seeker YG, who has arrived at the Home Office’s Lunar House site, in Croydon.

The judge said YG claimed asylum as a child, but was treated by the Home Office as an adult over 18 years old and and was placed in adult accommodation, first in Southwark, and then in Birmingham.

YG then sought appropriate accommodation and support under the Children Act 1989 and Birmingham accommodated her on a without prejudice basis, but maintained that Croydon was the responsible authority.

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The court heard YG is an Eritrean who entered the UK unaccompanied on 26 October 2017 and said she was 17 when she arrived at Lunar House to claim asylum.

A protocol between Croydon and the UK Visas and Immigration Department saw a duty social worker present.

He attended as an ‘appropriate adult’ for YG and the Home Office caseworker decided on YG's age on the basis of her physical appearance and demeanour and said the duty social worker had agreed.

But the Home Office then issued a letter to YG that stated: “Your physical appearance/demeanour very strongly suggests that you are significantly over 18 years, of age,” but began: “Dear Miss [YG] Eritrea 10 October 1999", suggesting that was her date of birth and so she was aged 18 years and 16 days old at the time.

"The inconsistency between these two statements of her age, and whether [the duty social worker] was aware of it, are at the heart of the dispute in this case,” the judge said

Birmingham and Croydon then became embroiled in a lengthy dispute by email and phone calls as to which of them was responsible for YG.

Morris J said: “I accept [Croydon’s] contention that it is no part of the function of the duty social worker, present at Lunar House under the protocol, to make some form of preliminary age assessment at the stage of the Home Office's initial age assessment or to participate in, or add to, the Home Office's triage function as established under ‘assessing age’.”

He said the consequence of Birmingham's argument would be that the duty social worker would have to make his own age assessment in every case where the person claimed to be a child; but the Home Office concluded that they were significantly over 18.

“Such a conclusion is contrary to the framework of statutory responsibility and contrary to the purpose and logic of the protocol,” the judge said.

"It would render the Home Office initial assessment redundant and is fundamentally at odds both with the separate functions of the Home Office and the local authority and with the basis upon which the protocol has been established.”

This meant that where the Home Office concludes a person is an adult, “Croydon is under no duty towards that person, either under statute, statutory guidance or the protocol under Children’s Act 1989 at the time to assess that person's needs, to provide accommodation or support or to carry out a local authority age assessment.”

The judge said the issue had been clouded by the inclusion of ’10 October 1999’ in the letter.

He said there was no evidence that the duty social worker positively agreed with YG's date of birth being 10 October 1999, nor that there was doubt as to her age and nor was there any direct evidence that the duty social worker ever saw the letter with the erroneous date.

Morris J concluded that the inclusion of the date of birth in the [letter] was done in error and that the Home Office did assess YG as an adult.

“For these reasons, I conclude that Croydon was neither subject to, nor in breach of, any duty under sections 17 and 20 CA 1989, nor under any duty to treat YG as a putative child, on 26 October 2017.”

Mark Smulian

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