Asylum-Seeking Child Wins Age Dispute Court Case Against Islington Local Authority

Rahul Kanani

Vulnerable unaccompanied asylum-seeking child vindicated in relation to his age following four day hearing in damming judgment against Local Authority

On 15 May 2025, following a fact-finding hearing conducted over four days, for the purpose of determining the Applicant’s age and date of birth, Upper Tribunal Judge Norton-Taylor and Upper Tribunal Judge Loughran handed down judgment in favour of the Applicant (ARO) against the Respondent Local Authority (London Borough of Islington) [JR-2024-LON-001201].

This case relates to a Judicial Review challenge against the London Borough of Islington (Islington). We challenged the lawfulness and factual accuracy of their ‘informal’ decision that our client was an adult, aged between 24-25 years old.

The Background

ARO arrived in the United Kingdom (UK) on 4 December 2023, unaccompanied and seeking asylum after fleeing Sudan in August 2023 due to the war.

Upon arrival in the UK, ARO was assessed by the Home Office. Despite providing the Home Office officers with his age (16) and date of birth (20 September 2007), he was ascribed a date of birth of 20 September 1999, for the purpose of his asylum claim. This was based on the immigration officers’ perception of his physical appearance and demeanour at the time.

As a consequence of the Home Office decision, ARO was not referred to Children’s Services and instead, he was taken to adult asylum hotel accommodation.

On 6 December 2023, Islington received a referral and on 7 December 2023, they arranged for two assessors to visit ARO for what they say was a ‘Welfare Assessment’.  Following a short meeting, both assessors concluded that ARO was between 24-25 years old and would not be accepted for any further assessment or support under Children’s Services.

On 8 March 2024, we issued a Judicial Review proceedings challenging Islington’s decision. Permission to apply for the Judicial Review was granted by Neil Cameron KC, sitting as Deputy Court Judge, on 24 April 2024. In addition, ARO’s application for interim relief was granted which meant that Islington was ordered to treat ARO as a child and provide him with accommodation and support under sections 17 and 20 of the Children Act 1989 until the claim was determined or until further order. In line with usual practice, the case was transferred to the Upper Tribunal.

The fact-finding hearing took place over four days between 28-31 January 2025.

Key Evidence

Applicant

1. Age assessment undertaken by two independent social workers

We instructed two independent social workers to undertake an independent case-law compliant (also commonly referred to as a Merton-compliant) age assessment of ARO. We submitted that given both independent social workers’ levels of experience, significant interactions with ARO over the two days and presentation of the relevant information to hand (at the time of the assessment), including the earlier decision and pleadings of Islington, that significant emphasis and credibility should be placed on their conclusion that it was their professional opinion that ARO was more likely to be his claimed age.

We also emphasised that Islington did not undertake a Merton-compliant age assessment, or even an abbreviated assessment of age, but rather what they refer to as a ‘welfare check’, which was relied upon by them.

Following Islington submitting further evidence, the independent social workers also provided an addendum report which confirmed that they maintained their initial assessment of age.

2. Witness Evidence

In support of ARO’s claimed age and date of birth, the Upper Tribunal heard evidence from ARO’s half-brother, Erinç Argun Kayim of the Refugee Council and a senior support worker at Nelcare. The Upper Tribunal also heard evidence from ARO who was cross-examined by Islington’s instructed counsel.

In addition, other relevant statements and documents, such as social care records, relevant to the determination of ARO’s claimed age and date of birth were disclosed to the Upper Tribunal for their consideration.

Respondent

1. ‘Welfare Assessment’  and Evidence Provided by London Borough of Islington

Islington relied on the evidence obtained during a short visit on 7 December 2023, to support their assessment that ARO was ‘significantly older than the age he claimed’.

It should be noted that during the course of the hearing, it was accepted by Islington that no welfare assessment form was completed in respect of ARO. Furthermore, following the cross-examination of both assessors, the judges formed the view that ‘Mr Sayed and Ms Couchman did not undertake a welfare assessment’ and that the manner in which the visit was undertaken and recorded indicated a ‘lack of care’. In the damming judgment, both judges note that there was ‘no record of the applicant being asked the questions in the welfare assessment form and what his responses were’. They also found the handwritten notes from the visit to be ‘inadequate’, and placed limited weight on the assessors’ observations of ARO’s demeanour. The judges further noted that some of the assessors’ observations regarding ARO’s physical appearance were ‘simply incorrect’.

2. Witness Evidence of ARO’s Social Worker

In support of Islington’s assessment of ARO’s age, the Upper Tribunal heard evidence from Mr Jackson, ARO’s social worker. However, both judges ‘did not regard Mr Jackson’s oral evidence as adding anything of substance to what he had previously said, and his evidence as a whole does not carry material weight’.

3. Age Assessment Records of Half-Brother and Social Media Findings

Islington relied on the findings of a previous age assessment and social media evidence to support its position that ARO is an adult.

However, both judges were “not persuaded” by the earlier age assessment or the accompanying notes concerning ARO’s half-brother. Following a review of the Facebook evidence submitted on behalf of Islington, they concluded that it did not assist in determining ARO’s age.

Conclusion

‘In light of the cumulative assessment we have undertaken and findings set out above, we conclude that it is more likely than not that the applicant was 16 years old when he arrived in the United Kingdom on 4 December 2023, and that he is now 17 years old’.

In reaching this decision, both judges emphasised that ARO had been ‘consistent as to his age and his date of birth at all times’  and accepted his ‘explanation as to how he knew his age and date of birth’. Significant weight was placed on the independent social workers Merton compliant age assessment and the observations of professionals, in particular, a senior support worker at Nelcare whose evidence was considered to be ‘reliable and deserving of real weight’.

In contrast, the judges ‘identified a number of material shortcomings in the respondent’s assessment of the applicant’s age and the new evidence relied on by the respondent in support of their claim that the applicant is an adult’.

Key Takeaways

Home Office Assessment(s)- Reform Needed

‘[…] we have concerns about the observations made in this assessment and the respondent confirmed that they did not agree with the characteristics listed therein.’

‘During the hearing we noted concerns about the observations in this section. In particular, we were concerned about the comment that the applicant’s “nose is developed and proportionate to his face which is common in adults”, he “has strong hands” and “the curvature in his body indicates developmental changes associated with adulthood.”

A recent report published in January 2024 by the Refugee Council, Human for Rights Network and Helen Bamber Foundation revealed that as a result of age determinations conducted by immigration officers of the Home Office, at least 1,300 children were incorrectly deemed to be adults following arrival into the United Kingdom (UK) over an 18-month period (January 2022 to June 2023).

From our experience, too often young unaccompanied asylum putative minors are being incorrectly ascribed the wrong age. We contend that the process conducted by immigration officers is unreliable and flawed as assessments are largely based on assessing officers’ perception of a young person’s physical appearance and demeanour, in the absence of documentary evidence. In fact, the Home Office’s own guidance for the National Age Assessment Board acknowledges that ‘physical appearance is a notoriously unreliable basis for assessment and chronological age’ and demeanour ‘can also be notoriously unreliable and by itself constitutes only somewhat fragile material’.

The impact of a child being wrongly assessed as an adult is significant. In this case, ARO was incorrectly assessed to be eight years older than his claimed age. This meant that ARO was placed in adult asylum accommodation, which is not safe or appropriate for unaccompanied asylum-seeking children. Often room sharing is required, leading minors to be exposed to risks of abuse and exploitation where there are no safeguards in place.

Given the significant role the Home Office has in the age assessment process, a reform is needed to improve how young people are assessed and Home Office officers need to be provided with better training on age assessments including the issues faced by putative minors and the impact of trauma, life experience, and cultural factors on the appearance and demeanour of young people.

Islington’s Conduct During Proceedings

The judgment strongly criticised Islington’s conduct during these proceedings. During the course of the fact-finding hearing, a witness was asked questions about evidence which had not been disclosed to the Applicant, his legal representatives or the panel prior to the questions being asked. In addition, despite ARO’s legal representatives on more than one occasion expressly asking for disclosure of notes completed by the assessors in relation to the visit on 7 December 2023, Islington only disclosed key documents they wished to rely on during the course of the hearing (handwritten notes of the visit on 7 December 2023 and relevant email correspondence). Furthermore, social care records were not actively disclosed by Islington during the proceedings or provided to relevant parties when they made an application to discharge the order for interim relief (such records highly relevant to the determination of the application). Lastly, it was observed that Islington potentially committed a contempt of court/data breach and that ‘lack of legal oversight may have caused, or at least contributed to, issues with the respondent’s conduct of this litigation’.

The judgment serves as a reminder of the importance of the duty of candour, meaning that all parties must disclose all relevant facts, information and documents, even those that may be adverse to their case.

It is hoped that Islington will reflect on their conduct and learn important lessons to avoid these issues from happening again in future proceedings.

Policies and Procedures Adopted by Islington

‘As outlined above, it is the respondent’s position that the visit was a welfare assessment and not a brief enquiry as to age. For the reasons outlined above, we are not satisfied that the visit constituted a welfare assessment. It is also clear from the policy guidance that it did not constitute a brief enquiry as to age. We are satisfied that the assessment of the applicant undertaken by Ms Couchman and Mr Sayed is not provided for in the respondent’s policy guidance’.

The judgment heavily criticised Islington for breaching their own policy guidance and failing to undertake a proper welfare assessment. It is clear that authorities need to be held accountable and they must not forget that in cases such as these, where we are dealing with vulnerable unaccompanied asylum-seeking putative minors, proper processes need to be implemented and followed to ensure vulnerable young people are being properly assessed, as what flows from such decisions, may have significant implications on their entitlements to fundamental rights under Children Act 1989.

Importance of Proper Recording

The judges observed that Mr Sayed’s handwritten notes of the visit were ‘inadequate’, and that he ‘did not record the questions that the applicant was asked or the answers that the applicant gave’ and it was noted that the typed notes from the visit contained typographical errors (which were not spotted by Ms Couchman), with repeated incorrect references to the applicant as ‘Omar’. In addition, the judges found that certain information included in the typed notes were not recorded in the handwritten notes, and they identified multiple unsupported observations.

It is fundamental that questions and answers are recorded accurately and in as much detail as possible to ensure transparency, accountability, and ensuring fair and consistent decisions. In addition, it protects the individual’s rights and gives them a fair opportunity to challenge the decision (should they wish). In cases such as these, where the young person does not have documentary evidence, their responses (and alleged inconsistencies), form a significant basis for the outcome of the assessment, which is why high standards of recording information need to be upheld. Given the importance of determining age on a young person’s entitlements to support under the Children Act 1989, it is simply unacceptable not to maintain these standards.

Physical Appearance and Demeanour

‘We have reminded ourselves of the importance of not overemphasising physical characteristics […]’.

‘In terms of our assessment, the applicant’s physical appearance is of little value to our overall task, but we do not consider that the applicant’s physical appearance provides material support for the respondent’s conclusion that he is 8 years older than his claimed age’.

‘Overall, we do not regard the applicant’s demeanour as representing a significant factor either for or against his claimed age and date of birth. On our assessment of the evidence, it seems to be the case that his attitude/demeanour/presentation differed according to the context in which it was perceived’.

It is well-established that forming a decision based on a young person’s alleged physical appearance and demeanour at the time is an unreliable scientific process and one that is routinely disproven in subsequent full age assessment processes or following contested fact-finding hearings at the Upper Tribunal. It is evident in Merton case-law that physical appearance is ‘notoriously unreliable’  in the assessment of chronological age, with demeanour constituting ‘fragile material’.

Nevertheless, Osbornes Law is seeing a growing trend of multiple local authorities adversely short-form assessing young asylum-seekers and overemphasising physical characteristics and demeanour as reasons to justify not carrying out a holistic or full age assessment.

This judgment helpfully reiterates that whilst physical appearance and demeanour are considerations, such factors should be treated with caution. In addition, the judgment reminds local authorities to take into account ‘potential cultural differences and the wide-ranging subjective views (often at a subconscious level) which might inform conclusions on a person’s age’.

Importance of Professional Workers’ Opinions

As recognised in ADCS guidance (page 14), importance is placed on the views of key workers, social care workers, advocates, teachers and college tutors. It is noted that ‘their observations of children and young people in different settings and interactions with peers and other adults can make a useful contribution’.

As per R (AM) v Solihull MBC [2012] UKUT 00118 [at para 20], ‘any person such as a teacher or even a family member, who can point to consistent attitudes, and a number of supporting instances over a considerable period of time, is likely to carry weight that observations made in the artificial surroundings of an interview cannot carry’.

The judgment reiterates the importance and weight placed by the Upper Tribunal on the observations of relevant professionals, in relation to a young person’s age, especially in the absence of documentary evidence.

Legal Representation

ARO was represented by Rahul Kanani of Osbornes Law with Ollie Persey of Garden Court Chambers instructed as Counsel. Erinç Kayim of the Refugee Council’s Age Dispute Project acted as litigation friend.

With thanks to Alex McMahon of Osbornes Law who supervised Rahul Kanani. Alex had the following to say: “Rahul left no stone unturned in this case. I was impressed by his attention to detail from the outset and dedication to the client’s case and overall welfare. This was absolutely the right outcome but it was hard fought. I congratulate Rahul and Ollie Persey for this very positive decision.”

How we can help

At Osbornes, we are specialists in age assessment challenges and have significant experience in overturning negative age assessment decisions and issuing judicial reviews against local authorities and the Home Office. Please contact the Age Assessment team by:

Filling in our online enquiry form; or
Calling us on 020 7485 8811