In R (SB (a child)) v Royal Borough of Kensington & Chelsea [2022] EWHC 308 (Admin) the High Court held that an interview conducted by social workers as part of a short-form age assessment was “clearly unfair”. This was because of the combination of there having been no interpreter, no offer of an appropriate adult and no opportunity for SB, an asylum seeker from South Sudan, to rebut adverse factual conclusions.

The age assessment

SB arrived in the UK in May 2021 claiming to be 17 years old. The Home Office rejected this claimed age on the basis of his appearance and demeanour. He was detained for four days and then dispersed to asylum accommodation in the borough of Kensington and Chelsea, the defendant local authority.

The local authority’s age assessment was conducted by experienced two social workers in June 2021. Based on the claimant’s appearance and manner, the social workers formed the view that the claimant was well above the age of 18, and so they conducted a short-form, as opposed to a full Merton-compliant, age assessment.

The social workers were unable to find an interpreter in SB’s mother tongue (Nuer) and interviewed him in English. They were satisfied he was able to communicate in English, but their notes suggested that the absence of an interpreter may have been prejudicial. There was no evidence that SB was told of the possibility of an appropriate adult being present; the social workers did not provide an explanation for this.

Finally, a number of SB’s answers about his journey, where he had been in the past and information on Facebook about his birthday led the social workers to doubt his credibility. The contemporaneous notes suggested that the social workers simply told the claimant their adverse factual conclusions, without providing him with the opportunity to rebut them.

The legal challenge

The claimant characterised the challenge as one to the fairness of the June 2021 age assessment. It was accepted that for the purposes of this issue, the court would decide for itself whether the assessment had been fair.

The defendant sought to characterise the challenge as one to the later decision not to re-open the age assessment, and subject to review on rationality grounds only. As Mr Justice Bennathan put it, this would have “set a higher legal hurdle” for SB. The judge instead decided that it was “completely obvious” that he had to decide whether the June 2021 assessment itself had been fair.

The High Court’s decision

Bennathan J held that “the depth of enquiry required of a local authority in an age assessment process is not binary”. There are obvious cases where no interview is required at all. Also, where a local authority’s initial assessment is that a young person is very likely over 18, a shortened process is permissible. But once it is decided that an interview is necessary, the interview must be fair.

The judge noted that, individually, the three defects identified by the claimant (no interpreter, no appropriate adult, inadequate opportunity to respond) did not necessarily render the interview unfair. The potential prejudice of no interpreter could have been mitigated by the presence of an appropriate adult and more care being taken to give the claimant the opportunity to respond to rebut adverse factual conclusions. The answers the claimant had given which had caused the social workers to doubt his credibility appeared to be capable of explanation.

He concluded:

… drawing together the various short fallings relied on by the Claimant in his case I am driven to the conclusion that the combination of the lack of an interpreter, the absence of even the offer of an appropriate adult, and the flaws in the “minded to” process, amount to a clearly unfair process. Once the social workers decided to conduct an interview as part of the assessment process, they were obliged to ensure it was a fair one.

The June 2021 assessment was quashed, leaving it up to the local authority where the claimant now resides to carry out a fresh age assessment.

The judge also criticised the defendant’s counsel for applying to reverse the decision to quash in response to the draft judgment circulated. That application “should not have been made”.