SB is a Southern Sudanese asylum seeker, who arrived in the UK on 28th May 2021 and claimed to be 17 years of age.
Based on an assessment of his appearance and demeanour, the relevant Home Office official rejected that claim. SB was kept in detention for 4 days before being dispersed and accommodated with adult asylum seekers.
SB was then sign-posted to the Refugee Council, who subsequently referred him to the Local Authority (LA) for an age assessment. A “short age assessment” was undertaken that concluded he was well over 18 years of age, perhaps by as much as 7 to 8 years.
Despite ISWS not having full sight of this age assessment, the judgement highlights that the Social Workers based their decision on three different factors, SB’s physical appearance and demeanour – “a receding hairline, some grey hairs, some pronounced lines on his neck, and his confident and calm manner”. Secondly, there were issues with SB’s previous passport/travel documents and the inconsistent nature of his journey on the completed timeline, and finally evidence from his social media account.
SB challenged the LA’s decision, on the grounds that it was unlawful, unreasonable and irrational. The High Court agreed and quashed the LA’s decision, stating that the age assessment process amounted to an “unfair process”, highlighting a number of reasons detailed below.
The Judge acknowledged the LA’s difficulty in identifying a suitable interpreter for the age assessment interview and the rationale behind their decision to carry on in their absence. The LA’s decision to continue without an interpreter was partly based on reports made by the Refugee Council and also their own judgement, that found SB to be proficient and confident in speaking English. However, the Judge took issue with this decision, finding that there were perceived misunderstandings between SB and the LA due to the lack of an interpreter. He stated “as most judges and lawyers will have seen, a person’s command of English may ebb and flow depending on them tiring or being under stress. In my view the lack of an interpreter at the assessment interview was a significant short falling, but that by itself would not necessarily have been sufficient to render the process so unfair as to be unlawful. Any problems might have been sufficiently mitigated by other steps such as an appropriate adult and/or a slower and more thorough “minded to” process”.
Depending on certain circumstances and if suitable safeguards are in place, the absence of an appropriate adult does not render all age assessments unfair. However, the court stressed the important role of an appropriate adult being present during the interview by providing support to SB and ensuring that he understood the process and was treated fairly.
In this case, the judge stated that “the absence of an appropriate adult will not render all age assessment interviews unfair, it has to depend on the circumstances and, in particular, what other safeguards were in place. On the facts of this case, however, the combination of the lack of an appropriate adult and an interpreter combine to render the interview process one that was unfair.
Had the Claimant been accompanied by a sympathetic adult they could have played a role in avoiding what, according to the Claimant’s statement, were misunderstandings that were then used as a basis for the social workers to disbelieve what he was telling them”.
Relevant principles, case laws and guidance by the Home Office state 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. It is not sufficient that the interviewing social workers withdraw to consider their decision, and then return to present the applicant with their conclusions without first giving him the opportunity to deal with the adverse points”.
In SB’s case, he was not given the opportunity to respond or clarify the adverse points used by the LA as evidence against him.
The judge reiterated that an age assessment enquiry by a LA is not binary. There are cases where the LA can dismiss the claimed age without any formal process or interview in extreme cases, such as on a young child or middle aged person. The judge said that in SB’s case, once the LA agreed he was well over 18, a shortened process was permissible but still needs to be undertaken fairly, stating:
“once the social workers decided the Claimant’s assessment required an interview, that interview had to be fair”.
The judge concluded that the combination of a lack of interpreter, the absence or even the offer of an appropriate adult and the flaws in the “minded to” process, amounted 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 that it was fair.
The key lessons from this judgement are the failure by the LA to provide either an interpreter or an appropriate adult, and the absence of a minded to discussion. If appropriate safeguards are in place, the lack of completing these three procedures does not necessarily render an age assessment unfair. However, in this particular case, the Judge ruled that the cumulative absence of these three factors, did amount to an unfair age assessment process, leaving the LA’s decision open to challenge.
At ISWS, we have always advocated that the Local Authority should follow a fair process when conducting a short age assessment in cases where they feel that their separated migrant is considered to be well over 18 years of age.
At ISWS, we recognise the growing use of short form age assessments however urge caution as there have been a significant number of successful legal challenges. We take the view that short form age assessments, brief enquiries etc. should only be undertaken in “clear and obvious” cases, as per the Merton and Milton Keynes Judgment. If a Local Authority has accommodated someone as a Looked After Child, they have accepted that this person “could” be a child. In our view, they would then fall outside of the “clear and obvious” threshold, and therefore would require a full Merton compliant age assessment to dispute age.
During our training courses, we advocate the use of short form age assessments at the initial point of enquiry, for spontaneous arrivals where the claimed age is in dispute. The short form assessment is used to screen for people who are “clearly and obviously” an adult, taking into consideration the 5-year margin of error.
If the person presenting “could” be a child, we advocate providing accommodation and completing a full, Merton compliant age assessment if there is still a question on age. If the social workers are of the view that the person presenting at the initial point of arrival, is clearly and obviously over 23 years, then the short form age assessment is appropriate.
A copy of the full judgment can be found here: SB (A Child), R (On the Application Of) v Royal Borough of Kensington & Chelsea [2022] EWHC 308 (Admin)
Nana Gyebi: Immigration Social Worker ISWS Ltd
