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Age assessment disputes and JR claims


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A slightly belated post to highlight another important decision of the Court of Appeal that will have relevance to both immigration and family law practitioners.  R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 concerns age dispute assessments and has set further guidance on a) how procedurally speaking the assessments should be conducted and b) how judicial review claims seeking to challenge an age assessment should be dealt with by the courts at the permission stage.

The Appellant, FZ, is a 17-year old unaccompanied asylum seeker from Iran, who also had mental health difficulties identified as the consequences of post-traumatic stress disorder as a result of his experiences in Iran.  His age was accepted by UKBA but upon UKBA’s referral to Croydon’s Children Services, his age was disputed by the local authority, which deemed that he was 2 years older than he stated.  He challenged the local authority’s assessment by way of Judicial Review (the only remedy available in age assessment disputes) claiming that firstly, the local authority’s provisional adverse conclusions had not been put to him thereby depriving him of an opportunity to respond and rebut these concerns and secondly that his interviews with the social workers had taken place without an appropriate adult being present.

At first instance, the Administrative Court held that the local authority had carried out a proper “Merton-compliant assessment” – the term now used to describe age assessments which comply with the Administrative Court’s guidance on appropriate procedures to be adopted by a local authority when assessing a young person’s age set out in R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin).

On the procedural issues concerning the conduct of the age assessment and necessary interviews, the Court of Appeal held that:

“it is axiomatic that an applicant should be given a fair and proper opportunity, at a stage when a possible adverse decision is no more than provisional, to deal with important points adverse to his age case which may weigh against him.”

The Court was however weary of specifying in what manner a local authority should give an applicant this opportunity (see Paragraph 21 of the judgment for further discussion) as it was mindful of the lack of central government guidance on this issue.  Indeed it noted that some local authorities have their own published Practice Guidelines (namely Croydon and Hillingdon), UKBA does to a certain extent as well (see Asylum Process Guidance on “Assessing Age”, “Processing Asylum Applications from a Child” & “Conducting The Asylum Interview”) but that that there is a lacuna in respect of formalised central government guidance.

With regards to the second procedural matter, the Court found that:

“23. (…) it is generally accepted in a variety of contexts that, where children or other vulnerable people are to be interviewed, they should have the opportunity to have an appropriate adult present.  (…)

25.          In our judgment, the appellant should have had the opportunity to have an appropriate adult present, and the fact that he was not given this opportunity contributes to our decision whether he should be given permission to proceed.”

On the test for granting permission in age dispute JR claims, the parties in the case agreed that the test is whether there is a realistic prospect or arguable case that the court would reach a conclusion that the claimant was of a younger age than that assessed by the local authority.” They were not agreed however on whether the Court, when addressing the test should start by assessing the appellant’s positive case or whether it should instead analyse the reliability of the local authority’s assessment e.g. if it is “Merton-compliant”.

The Court held that:

“at the permission stage in an age assessment case the court should ask whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing.  (…)  We decline to attach a quantitative adjective to the threshold which needs to be achieved here for permission to be given.

This will therefore enable the courts to assess an appellant’s factual case rather than limiting itself to whether the local authority conducted its assessment in an integral/Merton-compliant manner.  This also brought about comments from the Court of Appeal highlighting the fact that age dispute cases will inevitably involve questions of fact on contested evidence and that the Administrative Court does not generally hear oral evidence in JR proceedings and is not generally equipped to do so.  The Court thus proceeded to remind us of the power to transfer age assessment cases where permission is given for the factual determination of the claimant’s age to the Upper Tribunal for disposal (under s.15 & 19 of the Tribunals, Courts and Enforcement Act 2007).

FM highlighted earlier this month the anticipated transfers of fresh claim JRs to the Upper Tribunal starting in October 2011 so let’s wait and see the results…

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Sarah Pinder

Sarah is a specialist immigration barrister at Goldsmith Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.