The impact of age assessment decisions on unaccompanied asylum seeking children coming to the UK is huge. As we explored in this earlier article, an age assessment decision will affect a young person’s entitlement to social work support and care. It will also have implications on how their asylum claim is dealt with by the Home Office and ultimately their ability to remain in the UK.

For these reasons, it is crucial that if a young person receives a negative age assessment decision, they are able to access effective legal advice on any potential challenges.

Grounds to challenge initial age assessments

Initial age assessments (also described as brief enquiries) carried out by a local authority can be hard to challenge. As we explored here, these are brief, visual assessments where the relevant local authority will engage with the young person and establish whether based on their presentation and demeanour they are or could be a child.

Procedural challenges

Although there has not been a huge amount of litigation on initial age assessments, the Courts have established that although brief, they still need to be procedurally fair.

Last year the High Court found that an initial age assessment was fundamentally unfair as it was conducted without an interpreter, without an appropriate adult being present and without giving the young person the opportunity to respond. The court made it clear that it was the combination of these three issues that led to the assessment being unfair and that a case by case assessment will need to be carried out when determining the fairness of these decisions.

In practice, when looking at potential procedural challenges legal representatives will need to find out whether adequate safeguards were in place when the assessment was carried out and whether it might be argued it was ultimately unfair.

Substantive challenges

In 2020 the High Court found that, due to nature of initial age assessments, local authority must keep in mind the wide margin of error in these cases. The court accepted that physical appearance is an unreliable basis for an age assessment and that the benefit of the doubt must be applied in these cases. This means that where workers have any doubt about whether the young person could be a child they must take them into their care. If required, the local authority can then proceed to carry out a full age assessment at a later stage.

In terms of challenging these decisions, the starting point is therefore to obtain the reasons from the local authority. This can be challenging depending on the local authority’s own internal processes. A way around this can be to submit an urgent subject access request as soon as instructions are received and ask for full records.

After receiving the records and reasons for a negative assessment, legal representatives should consider whether the social workers were mindful of the wide margin of error when making the decision. If appropriate, they should also consider whether the benefit of the doubt should have been applied.

The bottom line in these cases is that a decision to treat a young person as clearly over the age of 18 should only be taken by a local authority in cases where the young person presents obviously as an adult. These decisions should not be the norm and they should not be taken in borderline cases. The key to these challenges is to argue that a reasonable social worker would have applied the benefit of the doubt when carrying out that same assessment.

Grounds to challenge full age assessments

Once a young person is taken into care, the local authority has the power to carry out a full age assessment to establish their age if doubt still exists. Full age assessments can also be carried out by the National Age Assessment Board, employed by the Home Office, following its introduction in the Nationality and Borders Act 2022. The board is still limited in scope and it is mostly operating in cases where local authorities make a referral to them and ask it to carry out an assessment on their behalf.  

Procedural challenges

Full age assessments must be carried out in accordance with the leading case of R (B) v Merton [2003] EWHC 1689 (Admin) and subsequent relevant case law. This applies whether carried out by a local authority or by the National Age Assessment Board.

Broadly speaking, the procedural requirements for a Merton compliant age assessment can be summarised as follows:

• The assessment should be carried out by two social workers, one of whom should be trained in carrying out age assessments;
• Minimum safeguards should be in place including access to an effective interpreter and an appropriate adult to support the young person throughout the assessment;
• The young person should be given the opportunity to respond to any adverse point that the social workers are minded to hold against them;
• The local authority should provide clear reasons when making a negative decision

Failure by a local authority to comply with any of these requirements can give rise to a potential challenge of a negative age assessment decision.

Substantive challenges

Merton and subsequent case law also defined the approach that local authorities should adopt when coming to a decision following a full age assessment being carried out.

Firstly, full age assessments should be holistic. While physical appearance and presentation might be relevant factors, a local authority should also give weight to other sources. The young person’s background should be obtained including their family, educational history in their country of origin, details of their journey to the UK and of any other relevant experience in the UK (for instance, where a young person was trafficked within the UK).

Social workers should also seek and consider input from other professionals that know and have been supporting the young person. These could include foster carers, support workers and teachers. Failure to seek or consider potential material evidence from other professionals could give rise to a potential challenge to a negative decision.

Similarly to initial age assessments, local authorities should apply the benefit of the doubt when carrying out full assessments. In practice this means that if after considering all the evidence the workers still have any doubt as to whether the young person could be a child, then they will need to consider them a child.

In our experience this is perhaps the most common ground to challenge full age assessment. When reading a decision, legal representatives should consider whether the reasons provided indicate that the social workers might still be in doubt and raise a challenge accordingly.

Finally, as with other judicial review actions, a local authority decision can be challenged on the basis of its conclusions being irrational or unfounded. This would apply in cases where, based on the evidence available, it can be argued that no reasonable local authority would have reached the same conclusion.

Duty to reassess and new evidence

The courts have also established that age assessments are provisional decisions. In L v Angus Council [2011] CSOH 196 the Court of Session found that these decisions are ‘essentially provisional’, meaning that a local authority will have a duty to carry out a fresh assessment if new and material evidence relating to the young person’s age is provided.

New evidence could include supporting evidence from professionals that was not previously available. It could also include documentary evidence confirming the young person’s age. On this point, in R  v Oxfordshire County Council IJR [2015] UKUT 00429 (IAC), the Upper Tribunal found that where an identity document has been authenticated and provided to the local authority, a young person’s age ought to be accepted regardless of any discrepancies or other issues arising from an earlier age assessment.

What this also means is that where a challenge to an earlier age assessment has been unsuccessful or a potential challenge is time barred, a new challenge might arise if the local authority refuses to consider new evidence put forward or to carry out a new assessment when required.

Remedy: judicial review

Despite the Nationality and Borders Act 2022 providing for a right of appeal to these decisions, these provisions have not been enacted and the only remedy available to challenge age assessments continues to be judicial review.

The key to a lot of these challenges will lie in pre-litigation correspondence. At this stage, legal representatives should ensure to put forward all grounds, both procedural and substantive, that will form part of the potential judicial review.

It is also crucial that all available new evidence concerning the client’s age and presentation is sent to the local authority as early as possible along with a request that they reconsider the decision. This is very important, especially in initial age assessment cases where the wide margin of error has been accepted by the courts and therefore, any supporting evidence might be key to cast doubt on the initial decision.

Importantly, the time bar for these challenges is still three months from the date of the initial decision. This does not mean when the decision was written or communicated but rather when it was made. This is regardless of the outcome of the pre-litigation correspondence. It is essential to give the local authority the opportunity to reconsider but legal representatives must be mindful of the time limit that applies to challenging these decisions.

In England, judicial reviews in these cases are lodged in the Administrative Court but can be transferred to the Upper Tribunal. In Scotland cases are raised in the Court of Session.

Following the Supreme Court decision in R (A) v London Borough of Croydon [2009] UKSC 8, the Courts can in some cases carry out a fact-finding exercise and can ultimately determine the appellant’s age. Despite this, in the majority of cases the courts will focus on the lawfulness of the age assessment decision and process. Where a challenge is successful this will result in the local authority having to carry out a new assessment.

Conclusion

As we explored here, the vast majority of young people who are found to be adults by the Home Office on arrival are later found to be children by the local authority, once proper assessments are carried out. Age assessment challenges can be complex and time consuming but it is crucial for young people to be able to access legal advice and representations on this.

It is essential for young people to have a fair chance at having their age fairly assessed. Especially in light of the provisions of the Illegal Migration Act that are yet to come into force which will mean that if a young person is found to be under 18 the Home Office will not have a duty to remove them until they turn 18.

In light of the government plans we can expect an increase in age assessments being carried out by both local authorities and the National Age Assessment Board. Legal representatives must be prepared and able to take urgent action when coming across these cases.