High Court judge rejects bid by council to set aside order requiring interim provision of accommodation to asylum seeker in age assessment dispute

A High Court judge has dismissed an application by Liverpool City Council to set aside an order requiring it within no more than one week to provide accommodation and support to an asylum seeker, MA, under section 20 of the Children Act 1989.

Liverpool had not given effect to the original order for interim relief made by HHJ Davies but instead applied to set it aside.

In an earlier ruling in BAA, R (On the Application Of) v Liverpool City Council [2023] EWHC 252 (Admin), issued on 8 February 2023, His Honour Judge Pearce had granted an application by the city council to set aside another order requiring it to provide interim relief to an asylum seeker, BAA, who claimed that an age assessment carried out by the local authority was “erroneous”.

HHJ Pearce confirmed in BAA he was satisfied that the harm to the public interest through wrongly accommodating someone who is over 18 years old as a child was “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”.

However, in MA, R (On the Application Of) v Liverpool City Council [2023] EWHC 359 (Admin), issued on 21 February, HHJ Pearce dismissed a similar application by the local authority to set aside an order by HHJ Davies in a case concerning MA, who is Syrian and entered the United Kingdom in November 2022 when he claimed to be aged 17. Home Office staff though considered him to be 28 years old.

MA was dispersed to asylum accommodation in Liverpool, and contacted the Greater Manchester Immigration Unit who asserted he was under 18.

Liverpool had two social workers make an age assessment who concluded he was 28 and applied to set aside Judge Davies' order.

HHJ Pearce said witnesses had given evidence that MA was 17 based on both appearance and his actions but “professional social workers have, through the age assessment process come to a differing conclusion”.

HHJ Pearce said that in considering the balance of convenience in such a case it was relevant to consider a protective precautionary approach.

He said: “I do not accept that this involves pre-supposing that the claimant is a child. Rather, it looks at the proper approach that would be taken were the claimant in fact to be under the age of 18.”

The judge said harm might result both from placing MA with adults if he was in fact a child, and among children if he were an adult.

He said: “The wrongful accommodation of an adult with children by a local authority not only diverts resources from meeting the ends of children to meeting those of adults, it potentially jeopardises the welfare of looked after children, who are highly likely to have significant needs and who may be vulnerable.”

HHJ Pearce continued: “Whether the court wrongly grants interim relief to someone who is in fact an adult or refuses interim relief to someone who is in fact a child, there is a risk of failing to protect young people.

“Whilst one would hope and expect that no one would come to harm in the vast majority of the cases, I have been unable to identify any clear basis for concluding that the risk is greater if one errs in one direction or the other.”

There was plausible evidence that MA was vulnerable and whether he were accommodated by Liverpool or the Home Office the cost would be met by taxpayers anyway. The judge also accepted that, as a general proposition wrongly to grant interim relief might create a risk to the welfare of other children, there was no evidence of any such specific risk here. Specific information provided about the particular claimant – described as childlike and “sweet and gentle” – would “tend to indicate that the risk he might present to the welfare of other people is less here than it might be in other cases”.

The judge concluded: “Whilst I acknowledge the diversion of resources that would follow the grant of interim relief and the possibility that housing the claimant with children might raise welfare issues, the overall balance of the case leads me to conclude that interim relief should be granted.”

HHJ Pearce meanwhile criticised Liverpool for failing to provide a bundle in advance of the hearing, but rather seeking to rely on various documents that had been filed at court electronically.

The judge said failure to provide the bundle was a threat to the efficiency of the court and warned of adverse costs orders.

HHJ Pearce said: “The court file is not an adequate substitute for a properly ordered and paginated bundle which the judge can access and mark up as necessary.”

He said judges “should not have to deal with such administrative matters but, where the rules as to the filing of bundles are not complied with, often has to do so because the respondent party will have their own access to the relevant material and may not have been intending to rely on the bundle provided by the applicant such that the judge is the only person inconvenienced by the non-compliance”.

Litigants who do not serve bundles “risk being subject to adverse orders by way of costs or, worse, to the court refusing to deal with their applications”, he warned.

Mark Smulian