In this judgement, Milton Keynes Council have been criticised for refusing to complete an Age Assessment for a person claiming to be a separated migrant child in a hotel in their area, on the grounds that the Kent Intake Unit (KIU) reported him to be an adult.
AF, a Syrian asylum seeker, arrived in the UK on the 16th November 2021, informing the Home Office on his arrival that he was 17 years of age. However, the KIU did not accept AF’s claimed age, assessing him to be over 18 and therefore discharged him to emergency accommodation for adults.
We understand from the judgement that Milton Keynes Council were made aware of AF in May 2022 when they were contacted by his legal representatives requesting evidence of an Age Assessment as AF was claiming to be a child in their local area and living in inappropriate adult accommodation. In response, Milton Keynes reported that they had not undertaken an Age Assessment and did not have any Age Assessments from KIU or the Home Office.
AF’s solicitor formally requested an Age Assessment to be undertaken to ascertain whether AF was entitled to their services under the Children Act 1989 however Milton Keynes Council replied stating that they believed any claim/dispute should be against the Home Office for its determination. This prompted AF’s legal representatives to send a pre-action letter requesting an Age Assessment however, Milton Keynes Council stated it had “no duty to undertake an age assessment in the circumstances”.
AF argued that Milton Keynes Council’s refusal to complete an Age Assessment was unlawful as they had failed to ensure they had sufficient evidence to determine whether AF was a child and consequently to whom they owed a duty to provide services, particularly without sight of an Age Assessment, and in the knowledge of the unlawfulness of the KIU assessment process.
AF’s solicitors argued that it is well established in case law that a Local Authority should not automatically take the stance of the Home Office and Milton Keynes Council did not contest this but said the claim should now be rejected as ‘academic’ (theoretical) due to claimed age now making him 18 and therefore, not entitled to their support and accommodation under the Children Act 1989.
This was argued by AF’s legal representative as it was not just ‘theoretical’ as they failed to complete the age assessment in the first place which means that he will go through the rest of his life with a wrong date of birth. They also highlighted that the Local Authority could still use their discretion to provide services to AF as a ‘former relevant child’.
In conclusion the judgement states “I find that the Defendant’s failure to carry out its own age assessment of AF was unlawful. I consider that the claim is not academic because a new age assessment, even at this stage, could, at the Defendant’s discretion, give rise to access to important services for the Claimant as well as broader positive consequences for the Claimant’s treatment as an asylum seeker dependent on the outcome of that assessment”.
There is no required change for practice here, just a reminder to ensure that Local Authorities refer to previous judgements when making decisions as to whether they need to complete an Age Assessment.
We know through our work in hotels, and through speaking to social workers in the areas affected, that the Home Office are making poor decisions at the ports. We have received several reports of children being determined as adults at the port, even when they have documentation to evidence their age. Therefore, we cannot reliably use Home Office decisions as strong evidence to dispute someone’s age.
This judgement reinforces this position, meaning that Local Authorities must respond to hotel referrals in the same way they respond to someone arriving spontaneously, whereby social workers attend and make an independent decision on whether to provide services.
As social workers we need to continue to bear in mind the impact that age disputes have, not only the young persons emotional wellbeing, but on their identity and how they are treated through their asylum claim.
As we know, it is impossible to accurately pinpoint when someone was born without any documentation. We cannot simply rely on factors of physical appearance and demeanour (which, without sight of all the facts is what I imagined happened at the KIU in this case) other than in very (and I mean very) clear and obvious cases. The margin of error is there for a reason and a young person should always be given the benefit of the doubt, unless there is clear evidence otherwise.
o Don’t assume the Home Office decision at the port is reliable.
o Remember, there is a potential child in need in your area and you need to respond accordingly.
o Check with the welfare staff in the hotel, what are their views? Have they had much contact with the client?
o When deciding not to accommodate, ensure you provide a rationale decision for this decision to include in the paperwork.
If you have any questions about this judgement, or want to know more about completing case law compliant Age Assessments that can stand up to challenge then I would most definitely recommend completing our Level 4 Qualification in Age Assessments. I have done this recently, and it has made me so much more confident in my assessments, case law and decision making.
Rachele Button, Immigration Social Worker, ISWS Ltd
