High Court judge quashes age assessment of asylum seeker over “unfair process” undertaken by council

A South Sudanese asylum seeker who claims to be a child has won a High Court challenge over the fairness of an age assessment carried out by a London borough that concluded he was much older.

The background to the case of SB (A Child), R (On the Application Of) v Royal Borough of Kensington & Chelsea [2022] EWHC 308 (Admin) was that the claimant arrived in the UK in May 2021. He stated to the authorities that he was a child aged 17.

Based on an assessment of his appearance and demeanour, the relevant Home Office official rejected that claim. The claimant was kept in detention for four days and was then dispersed to the defendant council's area and accommodated with adult asylum seekers.

The claimant was referred to the Refugee Council who in turn referred him to Kensington & Chelsea, seeking for the local authority to undertake an assessment of his age.

In June 2021 the claimant was assessed by two social workers employed by the council within its Unaccompanied Minors and Independence Support Team. Their view was that the claimant was significantly older than he claimed. On the basis of his appearance and manner, both social workers believed him to be well above the age of 18, perhaps by as much as seven or eight years.

The social workers conducted an interview with the claimant in which he gave answers that, in their view, were unlikely to be true. In their witness statements made for the legal proceedings, both social workers made clear that they relied, in part at least, on the interview in reaching their conclusion.

The claimant argued that there were three elements of the interview that were unfair: the lack of an interpreter; the absence of an ‘appropriate adult’; and the failure to afford the claimant the chance to argue against any adverse conclusions the social workers were minded to reach.

Mr Justice Bennathan said the real issue in the appeal was whether the June determination met the standards of fairness required by law.

In relation to the lack of an interpreter, the judge noted that in their statements the social workers stated that they tried very hard to locate an interpreter who could speak Nuer (a language not spoken widely in the UK), and he had no reason to doubt them.

They had also found that the claimant was capable of conducting a conversation in English; the judge said he had no reason to question that assertion but he noted that, “as most judges and lawyers will have seen”, a person's command of English may ebb and flow depending on them tiring or being under stress.

Mr Justice Bennathan said that in his view the lack of an interpreter at the assessment interview was “a significant short falling”, but added that that by itself would not necessarily have been sufficient to render the process so unfair as to be unlawful. “Any problems might have been sufficiently mitigated by other steps such as an appropriate adult and/or a slower and more thorough ‘minded to’ process.”

The judge rejected a suggestion made on behalf of the council in argument, that an appropriate adult was not allowed to interfere in the interview. “Had the Claimant been accompanied by a sympathetic adult they could have played a role in avoiding what, according to the Claimant's statement, were misunderstandings that were then used as a basis for the social workers to disbelieve what he was telling them,” Mr Justice Bennathan suggested.

The judge said he was not suggesting that the judgment in R (AK) v Home Office and Leicester City Council was wrongly decided on this aspect of the case, as the absence of an appropriate adult would not render all age assessment interviews unfair, it had to depend on the circumstances and, in particular, what other safeguards were in place.

“On the facts of this case, however, the combination of the lack of an appropriate adult and an interpreter combine to render the interview process one that was unfair,” Mr Justice Bennathan said. (Judge’s emphasis)

On the ‘minded to’ process the judge said he did not consider that the case law required any very formal process in an abbreviated assessment, and he did not think the social workers were required to pause the interview and present the claimant with a list of answers they were minded to treat as diminishing his credibility.

There were, however, three answers which were relied upon as being dishonest and thus supporting the social workers' assessment of the claimant's appearance. The judge said it seemed to him that those answers – in relation to a Nuer passport, a trip to Egypt and the terms under which he had once stayed in Malta – were the sort of answers that could have been explained away as misunderstandings if the perceived inconsistencies had been carefully and slowly articulated to the claimant.

“If there had been an interpreter and an appropriate adult present, the failure to allow the chance to explain away those answers may not have been sufficient to render the process unfair, but when viewed cumulatively with those absences I think they amount to another unfairness,” the judge concluded.

Mr Justice Bennathan said: “In conclusion and drawing together the various short fallings relied on by the Claimant in his case I am driven to the conclusion that the combination of the lack of an interpreter, the absence of even the offer of an appropriate adult, and the flaws in the 'minded to' process, amount to a clearly unfair process.

“Once the social workers decided to conduct an interview as part of the assessment process, they were obliged to ensure it was a fair one. I have not been asked to express any view on the Claimant's actual age and I do not do so, but nothing I have seen suggests the conclusion would necessarily have been the same, had a fair process been carried out.”

The judge therefore allowed the application and quashed the decision taken by the council.

“It will be for the local authority where the Claimant now resides to fulfil their obligation to conduct a fair assessment process and I do not think it necessary to make any further order for that to occur, trusting as I do that whichever is the relevant authority will carry out that important duty,” Mr Justice Bennathan said.