Asylum seeker granted permission to apply for judicial review of age assessment

A High Court judge has given an Eritrean asylum seeker permission to seek judicial review of an age assessment carried out by Warrington Borough Council, and ordered the local authority to provide her with appropriate support on an interim basis.

The asylum seeker, from Eritrea, says that she was born on 12 September, 2006, and is now 17 years of age.

Warrington disputed this age and assessed her as an adult, born on 12 March, 1998, and so she is 26 years old.

The claimant had arrived by small boat in August 2023. Home Office staff assessed her as visibly over 18 and she was provided with hotel accommodation in Warrington.

A referral was made the following month to the council, indicating that the claimant had said she was a minor.

The age assessment undertaken by the council suggested that the claimant’s date of birth was exactly the same assigned to her by the Home Office on her arrival.

The claimant contends that no proper reasoning has been given to explain why this date was arrived at and that the agreement of her assessed date of birth with that arrived at by the Home Office called into question whether the process was an independent reconsideration.

Before Mr Justice Sweeting, Warrington said that the claimant continued to choose not to ask her mother for a witness statement or supporting documentation of her age. She had also refused to provide the defendant with contact details for her mother.

It was highlighted that the claimant now had access to funds but continued not to contact her mother or grandmother notwithstanding that any financial impediment had been removed. “The case was, it was said, an unusual one because the claimant had travelled alone and stayed in Germany for some time before travelling on to the UK.”

On behalf of Warrington, it was submitted that the claimant's credibility was significantly impaired by these factors in circumstances where the truthfulness of her account was central and could reasonably be doubted.

However, Mr Justice Sweeting said: “These contentions may have force but they are, in my view, matters for a subsequent substantive hearing. In judicial review, the court will independently determine the applicant's age by considering the available evidence on the balance of probabilities. At the permission stage, the threshold for proceeding will be met if the presented evidence, taken at its highest, could reasonably support a successful outcome in a contested factual trial. In other words, the evidence must raise a genuine question of fact that could be resolved in favour of the applicant.”

Counsel for the claimant meanwhile argued that the claimant had given a consistent date of birth and had produced documents which supported her age as being that claimed. “Although the Claimant has been assessed by officials and social workers as being older than she claims these assessments are necessarily impressionistic and will have to be considered carefully against the documentation produced by the Claimant, which may be the only material available to her in her country of origin. In addition, there is psychological evidence from….a clinical psychologist specialising in forensic mental health, whose assessment on examining the Claimant was that her emotional responses and cognitive function were consistent with the developmental stage of adolescence and her claimed status as a child.”

Mr Justice Sweeting said that in his judgment the claimant had, on the claim advanced, cleared the threshold for obtaining permission in a case involving age assessment.

Warrington also raised a procedural objection to the claim being allowed to proceed.

“In short it objected to the Claimant's reliance on the Amended Statement of Facts and Grounds and contended that although the Claimant had secured permission to amend through a separate court order, that did not preclude the Defendant's broader argument that the use of barebones "Preliminary Statement of Facts and Grounds" grounds was an abuse of process,” the judge said.

Mr Justice Sweeting said there had been a serious breach in that the claimant's initial form did not explicitly articulate legal grounds of challenge, but merely referenced pre-action correspondence containing those grounds.

However, granting relief from sanctions, he added: “The overriding objective is to ensure just and efficient resolution of the claim. Even though the breach was a serious one I have come to the view that refusing permission to rely on the amended grounds or denying the Claimant an extension of time would be disproportionate and risk injustice in this case.”

On the issue of interim relief, the judge said: “There is clear evidence of potential harm to the Claimant. The Claimant resides in adult asylum-seeker accommodation, an environment unsuitable for children. Her mental vulnerability and deteriorating mental state are well evidenced. If she is not recognised as a child in need before she turns 18, she may lose statutory entitlements to support as a former looked-after child, potentially leaving her with inadequate support. The Defendant has not presented any evidence of specific safeguarding risks if the Claimant is treated as a child while awaiting the final determination of her age nor is there any evidence of resource constraints.

“I conclude that the potential harm to the Claimant if relief is denied, in particular further deterioration of her mental health and loss of statutory support significantly outweigh any prejudice to the Defendant and therefore grant the interim relief sought.”

The case was transferred to the Upper Tribunal.

Harry Rodd