High Court judge sets aside order requiring council to provide interim relief to asylum seeker bringing legal challenge over age assessment

February 21, 2023

A High Court judge has granted an application from Liverpool City Council to set aside his order requiring it to provide interim relief to an asylum seeker who claimed that an age assessment carried out by the local authority was “erroneous”.

In October 2022 His Honour Judge Pearce granted the claimant permission to apply for judicial review on ground 5 of the grounds set out in his application (with consequential directions for transfer to the Upper Tribunal Immigration and Asylum Chamber) and directed that, pending further order or the conclusion of the claim, Liverpool was required to treat him as a child and make arrangements for the provision of support and suitable accommodation for him in accordance with its statutory duties.

The local authority sought to set aside only the second part of the order requiring it to provide interim relief by way of supporting the claimant.

In BAA, R (On the Application Of) v Liverpool City Council [2023] EWHC 252 (Admin) the claimant is a Sudanese national who contends that his date of birth is 5 May 2005 and that he is therefore now 17 years old, though not far from being 18.

He had arrived at Dover on 17 July 2022. He was interviewed and, HHJ Pearce said, it would appear that his interviewers thought he was lying about his age. They considered him to have been born in 2000.

The claimant travelled first to London where he stayed in a hotel for a short while and then to Liverpool, where again he was housed as an adult in a hotel.

On 4 and 5 August 2022, he was the subject of an age assessment by the defendant city council. The social workers who conducted that assessment “concluded that he was over 18 and he was therefore housed as an adult until my order of 14 October 2022,” HHJ Pearce said.

The claimant applied for permission to bring judicial review proceedings on five grounds:

The defendant failed to provide adequate and intelligible reasons for its decision;
The defendant failed to comply with its duty of reasonable enquiry;
The defendant's assessment procedure was procedurally unfair due to the unexplained absence of an Appropriate Adult;
The defendant's assessment decision was tainted by the absence of a fair and effective 'minded to' procedure; and
The defendant's decision was wrong as a matter of precedent fact.

Interim relief was sought by way of order requiring the defendant to support the claimant.

The judge noted that at the time of the 14 October hearing, “there was no Acknowledgment of Service or other communication from the Defendant before the Court”. The material before the court was “therefore limited to that which the Claimant had filed”.

This included details of a pro forma decision on the claimant's age from the defendant which stated it was the council’s opinion that his appearance and demeanour strongly suggested that he was significantly over 18 years of age. The decision added that it was not the local authority’s intention to undertake a full assessment of age and in its opinion he should be treated as an adult.

HHJ Pearce said that in carrying out the age assessment, the defendant had completed a “rather fuller enquiry than this letter suggested”, recorded in an "Age Brief Enquiry Form".

The judge stated that this had not been served on the claimant by the time of his original application for permission and was not provided in advance of his ruling on 14 October 2022.

In considering the grant of interim relief, the judge said that the Court's starting point was the decision in American Cyanamid v Ethicon [1975] AC 396 which requires the court to consider three issues:

22.1. Does the case of the party seeking injunctive relief show a serious issue to be tried? If not, the court goes no further in considering the application. If there is:

22.2. Would damages be an adequate remedy to a party who is injured by the wrongful grant or refusal (as the case may be) of an interim injunction?

22.3. Where does the balance of convenience lie?

The judge stated that the defendant “accepts that the threshold for bringing judicial review proceedings in respect of an age assessment is low” – see R (on the application of FZ) v Croydon London Borough Council [2011] EWCA Civ 59.

He continued: “It does not invite me to set aside my grant of permission on ground five. It follows that, for the purpose of the American Cyanamid test, the first threshold requirement is met.”

Considering the second issue, the judge noted: “often in the sphere of public administrative law there is little doubt that either party would be harmed by the wrongful grant or refusal (as the case may be) of injunctive relief in a way that cannot be adequately compensated in damages. That is the position here.”

He continued: “As to the third question, namely the balance of convenience, it is necessary for the court to consider a wide range of factors including (for the reasons identified above) the merits of the Claimant's case, but also the wider public interest.”

Considering the merits of the claim, HHJ Pearce stated that “a well conducted age assessment by appropriately qualified social workers is likely to be far superior to any assessment that a court can make on an application for interlocutory relief”.

He continued: “I also bear in mind the argument, to which Ouseley J gave weight in R (on the application of M) v Ealing London Borough Council [2016] EWHC 3645, that it is preferable to err in favour of accommodation someone who is in fact a child with other adults than it is to accommodate someone who is an adult with children.

“Whilst I do not consider this to be self-evidently the case, there is reason to bear in mind that it is not necessarily worse to err in favour of housing an adult as a child.”

Looking at the claimant’s case on the merits of the application for interim relief, the judge noted that a “number of criticisms” were made of the age assessment process within his original summary grounds.

However, he noted that “In light of the documentation now produced” it was “difficult to maintain those” since:

31.1. Contrary to ground one, adequate reasons for the decision were given;

31.2. Contrary to ground two, the assessors explored the claimant's account at some length;

31.3. Contrary to ground four, the assessors gave the claimant the opportunity to respond to their concerns about the case being advanced.

However, it was the claimant's case that the interpreters provided for his assistance were not fluent in Sudanese Arabic and that therefore there were “difficulties in communication that may have reflected in erroneous or confused interpretation of his answers”.

The defendant council’s case was that the ‘Age Brief Enquiry Form’ showed that this was a “proper and fairly conducted procedure”. It drew attention particular to the following:

33.1. The social workers who carried out the age assessment had suitable experience in the process.

33.2. The age assessment process was conducted over two days. On the first day, the interpreters were available online; on the second day the interpreter was present in person.

33.3. All interpreters spoke Sudanese Arabic.

33.4. The interpreter present on the second day confirmed that the Claimant could understand his dialect.

The defendant submitted that the claimant's assertion that he “could not be properly understood in the assessment process because the interpreters did not speak Sudanese Arabic” was “contradicted by the general statement in the Age Brief Enquiry Form that the interpretation was of Sudanese Arabic and the specific assertion in that documents that the interpreter on 5 August said he could understand the Claimant's dialect”.

Regarding the argument that the assessors had wrongly reached the conclusion that the claimant was over 18 years old, the defendant drew attention to the following:

The Claimant had no documentary evidence of any kind to support his asserted age.
There is a contradiction between his assertion during the age assessment process that he had had identification documents were that they were taken from him in Chad and his assertion in his oral submissions that he had never had any such documents.
The Claimant's physical appearance was that of somebody who shaved and his facial features, including a receding hairline, defined lines on his forehead and a fully formed jawbone, were said to be more typical of someone aged at least 21 years old. as noted above, the assessors are experienced in work of this kind.
There is no evidence from anyone who has had contact with the Claimant to contradict the social workers' assessment of his age.
The Claimant acknowledged having cut off his dreadlocks. Those conducting the assessment process concluded that this was an attempt to make himself look younger.
Twice during interview for the age assessment, he said that he was aged 13 in 2014 (which would of course make him well over 18 years old now);
On several occasions during interview he either asserted his year of birth to be 2005 or asserted an age that was consistent with that year of birth, but on a number of occasions he appeared to have to count with his fingers to verify his asserted age.
The Claimant stated during interview that his mother had told him that he was born in May 2005 without identifying the specific date; on the other hand, in his draft witness statement, in oral submissions on 26 January 2023 and indeed at a time prior to the age assessment (as recorded in the Age Brief Enquiry Form) he stated his date to be specially 5 May 2005.

Furthermore, the defendant council pointed out that, if the order requiring it to house the claimant was discharged, the claimant would return to being housed at public expense but as an adult. “Therefore his fears of being homeless are not well founded”.

Discussing the submissions, HHJ Pearce said: “The Defendant provides a powerful set of arguments in support of the contention that the Claimant is probably aged over 18. Some of the points taken individually are not that strong.”

He described, for example, assessment by way of physical appearance as “notoriously unreliable”.

The judge continued: “However, other factors, particularly [the Claimant’s] assertion twice that he was 13 years old in 2014 as well as a contradiction about whether his mother ever told him a specific date of his birth are in my judgment more compelling. […] When one brings into the equation the absence of any documentary or independent supporting evidence for his account, it is simply not possible to say that this is a strong case.”

The judge argued that even if the claimant was able to pass the “threshold test” of showing an arguable case, the weakness of the claimant's case was a factor to be taken account in the “balance of convenience”.

He continued: “The other obvious point is the balance between the harm that is done through the court refusing relief to someone who is in truth under the age of 18 on the one hand and granting relief to someone over the age of 18 who is in fact a child on the other.”

It was stated by the judge that the claimant had made the point that if accommodated with adults, he would potentially be exposed to people smoking and/or drinking alcohol, whereas that was not (or at least should not) be the case if he is housed, as now, with 16 and 17-year-olds.

However, the judge confirmed he was satisfied that the harm to the public interest through wrongly accommodating someone who is over 18 years old as a child is “greater than the harm caused by wrongly accommodating as an adult someone who is nearly 18 years old, who appears to have significant coping strategies and who on the evidence before me will remain housed at public expense in any event”.

The judge concluded that he was satisfied that the “balance of convenience on the facts” of the case pointed in the direction of the refusal of interlocutory relief.

He said he was satisfied that the order of 14 October 2022 should be discharged. It was conceded by Liverpool that there should be a phased period for such discharge and the judge directed that the current order should remain in force until 4pm on 24 February 2023 to permit this.

Lottie Winson