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High Court judge issues ruling on fairness of age assessment procedure

The High Court has found against the London Borough of Brent in a case concerning the age of an asylum seeker even though Mr Justice Swift said the council’s conduct was “not an error of the most serious nature”.

In HAM, R (On the Application Of) v London Borough of Brent [2022] EWHC 1924 (Admin) the judge said the Upper Tribunal should now resolve the dispute and Brent need not devote any more scarce social services resources to it.

He said it had been artificial for Brent to seek to separate a point about claimant HAM’s appearance - which was put to him - from other points about the credibility of his claims to be minor, which were not.

“Those points should, in fairness, have been put to the claimant,” Swift J said. “The claimant's response to what was put to him, that he did not know if he was a child or not, is not to the point. The point here being the fairness of the procedure, not whether the conclusion was correct.”

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HAM is a Sudanese national who arrived in the United Kingdom in May 2021 and claimed asylum.

He told Home Office officials he was aged 17 and should, for accommodation and support, have been treated as a child. The officials did not believe him and assessed him as 23 years old and so an adult.

Brent social workers later also assessed HAM as 23. Further evidence that HAM was 17 was provided by a  charity concerned with young asylum seekers but Brent said this was "not enough for us to reconsider”.

HAM argued in the High Court both that the decision that he was not a child was substantively wrong, and that Brent undertook the age assessment unfairly.

Brent argued it was put to HAM whether he was 23 - as he was thought to look - and that his response had been: “I don't know if I am a child or not", and this had been then decisive matter.

Swift J said: “I do not accept the council's submission on this point. I am satisfied that in this case it is artificial to seek to separate the point about the claimant's appearance, that was put to him, from the points…that were not put to him.”

He said a fact-finding hearing before the Upper Tribunal was needed to determine HAM’s actual age as HAM, even on his own evidence, would now be aged over 18.

“In this case, now that the judgment of this court has been given, there is little in terms of any public interest requiring the council to revisit this matter, and much to be said for the contention that the council's finite social services resources ought not to be expended further on this matter”, the judge concluded.

Mark Smulian

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