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Judicial review no longer the appropriate remedy to challenge age assessments in Scotland

In a recent decision, Mohammed Ismael Suliman Abdullah for judicial review [2024] ScotCS CSOH_8, the Court of Session clarified that when a young person is seeking for a court to make a finding in relation to their age in Scotland, the action should be raised as a declarator of age (asking the court to establish age as a matter of fact) as judicial review is not the appropriate remedy in these cases.

Before reading this, it might be useful to look back at this piece, where we explored how to challenge an age assessment.

Background

The petitioner in this case was a Sudanese young asylum seeker who entered the UK in 2021, stating he was 17 years old at the time. His stated date of birth was accepted by the local authority and he was taken into care.  

In August 2021, he was charged with a serious offence and remanded to a Young Offenders’ Institution. At that point, the criminal court queried his age and two social workers from the Home Office carried out a full age assessment on behalf of the local authority, finding him to be at least 22 years old. The petitioner’s solicitors challenged the assessment and instructed a report from an independent social worker, supporting his stated age. In 2023, the petitioner was sentenced to 7 years’ detention.

In this case, the petitioner was seeking a reduction of the assessment carried by the Home Office on behalf of the local authority but he also asked the court to determine his age, seeking a declarator (declaration) to that effect.

Age: who has jurisdiction?

The judge in this case asked both parties to make submissions as to whether the court had jurisdiction to determine the petitioner’s age. The decision ended up focusing on this procedural issue, over the substance of the assessment that was being challenged.

The court referred to the case of R (on the application of A) v London Borough of Croydon [2009] UKSC 8 where the Supreme Court found that, whilst it is for social workers to carry out age assessments in the first instance, it is ultimately for the courts to determine a young person’s age as a matter of fact, in the case of a dispute. At paragraphs 52-54, Lord Hope found that:

The question is whether the person is, or is not, under the age of eighteen. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court. [..] As for the practical consequences, the process begins with the carrying out of an assessment of the person’s age by the social worker. Resort to the court will only be necessary in the event of a challenge to that assessment.

The court then considered that, due to the similar constructions of the relevant provisions of the Children Act and the Children (Scotland) Act, this principle must therefore apply in these cases in Scotland. On this point, the court departed from the earlier case of L v Angus [2011] CSOH 196 and ultimately found it is the courts, not the local authorities, that have original jurisdiction in these cases in Scotland.

Judicial review not an appropriate remedy

Having established that courts have original jurisdiction, the question that the court was left with was how this should be exercised. The court noted that in R (on the application of A) v London Borough of Croydon, the Supreme Court had to exercise some creativity and found that judicial review was still an appropriate remedy in these cases, despite the determination of age being a matter of fact.

This is where the judge decided to depart from the Supreme Court judgment. Considering the practice of Scots law and the different courts, the Judge ultimately found that an ordinary action for declarator would be the most appropriate remedy where a young person is asking a court to determine their age. He notes that , in an action for declarator, the court would be able to hear evidence from a young person and to consider any other evidence and make an assessment of facts regarding a young person’s age.

However, the judge went even further and, departing from the earlier case of U v Glasgow City Council [2017] CSOH 122, found that judicial review would normally not be a  competent remedy in these cases for two reasons.

Firstly, he noted that judicial review is a mechanism that should only be used as a final resort, once all other remedies have been exhausted. He noted that, in these cases, an ordinary action for declarator will be always available as a remedy first.

Secondly, he noted that judicial review is only competent in cases where a public body has original jurisdiction to make a decision and said decision is being challenged. As, in the court’s view, local authorities do not hold original jurisdiction in these cases, judicial review cannot be a competent remedy.

Where do we go from here?

This decision constitutes a significant change for practitioners working with age disputed young people in Scotland. Prior to this, the position was that age assessment decisions could be challenged at the Court of Session by way of judicial review and, when appropriate, petitioners could also request a declarator of age, asking the Court of Session to carry out a fact finding exercise (as set out in R (on the application of A) v London Borough of Croydon & U v Glasgow City Council [2017] CSOH 122).

This decision makes it clear that that judicial review is not the procedure to resolve an age dispute, but that an action for declarator should be raised instead.  This appears to be the case as the Judge makes it clear that local authorities do not hold original jurisdiction and, therefore, the Court of Session does not hold supervisory jurisdiction over these decisions.

With this interpretation, it would follow the only way for a young person to challenge a local authority assessment going forward would be to raise an ordinary action for declarator, meaning that all age assessments court actions will become fact finding.

This raises a lot of concerns in terms of expecting young people to give evidence in court in every case but also on the weight the court will place on age assessment reports and witness evidence as well as how equipped courts are to hear these cases in the first place.

As the judge suggests that these cases should be raised as ordinary actions, the expectation in practice would be for these to be raised at the Sherrif Court in the first instance, which has never been the practice in Scotland. As such, practical difficulties might also arise around how to fund these cases and to what extend legal aid will be made available.

Conclusion

In my practice, I have witnessed a sharp increase in age assessments being carried out by local authorities in Scotland over the last year. It is hard to pinpoint exactly what is behind this but certainly the pressure and narrative coming from the Home Office and UK government does not help. As the number of age assessments goes up, this inevitably results in more negative decisions that young people seek to challenge.

This decision is very significant as it will give courts wider powers to determine young people’s age which is quite concerning for the practical reasons explored above. This will also increase the workload and pressure on practitioners working in this area who will be expected to run full proofs at the Sherrif Court to get a young person’s age determined in every case. This will also increase pressures on the legal aid system, which is already in crisis.

It will be very interesting to see if this decision and its implications will be overturned in litigation in the near future but also whether courts in England might look at this issue again.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Francesca Sella

Francesca Sella

Francesca is an immigration and asylum solicitor at the Scottish Refugee and Migrant Centre at JustRight Scotland, Scotland's legal centre for justice and human rights.

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