Why are there disputes over age?
The age assessment of unaccompanied children seeking asylum is a challenging process.
Many countries from which refugees and asylum seekers flee from do not have a robust administration system, particularly when it comes to registering births or issuing passports. Therefore, many individuals who enter the UK arrive without conclusive proof that they are a child.
Why does age assessment matter?
Children are entitled to various services from local councils, including education and accommodation. Age also has implications on whether the applicant is eligible for financial support and protections against deportation.
In immigration cases, whenever the age of the applicant is in doubt, the Home Office can order an age assessment, which operates under ‘benefit of the doubt’ guidance. This means that unless the applicant’s appearance very strongly suggests that they are significantly over the age of 18, they should be treated as a child until a more complete assessment is carried out.
Osbornes are instructed to help clients establish their age during the age assessment process and to help challenge assessments which conclude that an individual should be treated as an adult.
Our lawyers have significant experience in challenging negative age assessments, including issuing judicial review proceedings against local authorities.
Osbornes successfully acted in the significant case of AS v Kent CC  UKUT 446, concerning the unreliability of dental age assessments to establish the age of an individual. In this case the local authority argued that a dental assessment showed the individual to be an adult over the age of 18. Osbornes argued and the tribunal upheld that the fact that all teeth had reached the final stage of development was not a reliable indicator as to whether the individual was over or under 18.
Our team have also been involved in the following cases:
AA arrives in the UK from Syria, claiming to be a child aged 17. He presents his birth certificate as evidence of his age and date of birth. The Home Office refers AA to a local authority for assessment of his age and/or the provision of accommodation and support under the Children Act 1989. Social workers meet with AA (on his day of arrival) and a “screening” interview/assessment is carried out, considering as follows:
- AA “has provided no documentary evidence” to support his claimed age/date of birth (it is unclear whether the Home Office furnished the local authority with AA’s birth certificate); and
- AA’s physical appearance and interaction/demeanour is such that he is “clearly significantly over 18 years of age”.
The local authority passes AA back to the Home Office, who reach their own decision on his age, considering as follows:
- AA has “failed to produce any satisfactory evidence to substantiate” his claimed age/date of birth; and
- A “Merton compliant local authority age assessment has been concluded with a conclusion that you are 18 years of age or over, which has been accepted by the Home Office.”
Consequently, AA is placed in Home Office NASS accommodation, to reside with adults unknown to him. Fortunately, AA was not lost in the system, and was referred to Edward Taylor at Osbornes around one month later. AA instructed Edward that he provided his birth certificate to the Home Office upon arriving in the UK. However, AA was not aware that some form of assessment of his age had already been carried out by a local authority; it appears that he was unable to distinguish between Home Office officials and social workers on his day of arrival in the UK, which is understandable given the anxious state he would have been in.
Edward therefore took steps to challenge the local authority AA was residing in. A pre-action letter was sent, upon which that local authority met with AA and reached a decision that he is “clearly an adult” and “significantly older than 18”, based on “a visual inspection”. A further pre-action letter was sent to challenge that position, and further the local authority’s failure to make enquiries of the Home Office in relation to documentary evidence held concerning AA’s age.
Notwithstanding detailed representations regarding the unreliability of physical appearance as a basis for assessment of age, and the possible evidential weight of documentary proof of age, the local authority maintained its decision and refused to carry out a Merton compliant assessment or make enquiries of the Home Office pursuant to the Joint Working Guidance.
Osbornes were therefore left with no alternative but to issue Judicial Review proceedings at the Administrative Court. Interim relief was sought in the form of an order requiring the local authority to accommodate and support AA as a child pending the outcome of the claim or further order. The Court decided to list a hearing to consider the issue of interim relief.
At the hearing it was decided that AA should be accommodated and supported by the local authority, subject to him being assessed as requiring accommodation under Section 20 Children Act 1989. The Court also ordered the Home Office to disclose any identity documents relating to AA and any previous assessment held of his age.
AA was assessed as requiring accommodation under Section 20 Children Act 1989, which is unsurprising with his status as an unaccompanied asylum seeking putative child. AA was thereafter accommodated and supported as a child by the local authority. The Home Office subsequently disclosed AA’s birth certificate and the “screening” interview/assessment carried out by the initial local authority. Edward urgently obtained a translation of the birth certificate, which confirmed that it provided AA’s details and claimed date of birth.
The local authority asked the Home Office to arrange for the birth certificate to be “verified”. The Home Office agreed to do so within 10 working days. The document was examined at the National Document Fraud Unit, who determined as follows:
- They were “unable to conclude on the authenticity of the document”;
- They observed that “the document in question does appear to contain the general printing techniques and security features expected”; and
- The document “was examined for evidence of alteration and none were found”
The Court was duly informed of these developments and thereafter permission was granted for the Judicial Review application. The parties were given 28 days to try to decide the best way for the case to proceed. The Judge indicated that rather than proceed to a hearing it may instead be more appropriate for the case to be compromised by the local authority agreeing to undertake a Merton compliant age assessment or for the case to be transferred to the Upper Tribunal for the substantive determination of AA’s age.
The parties thereafter agreed the terms of a consent order to settle the matter on terms that the local authority is to undertake a Merton compliant age assessment of AA. At the time of writing, that assessment is awaited. If AA’s claimed age/date of birth is accepted, that will be the end of the matter, with him entitled to continued accommodation and support from the local authority until at least 21 years old (including support with education, health and financial support). If, on the other hand, AA’s claimed age/date of birth is still not accepted, Osbornes will very likely be pursuing a further application for Judicial Review at the Administrative Court to challenge that assessment.
KA arrives in the UK from Eritrea, claiming to be a child aged 17. The Home Office refers him to a local authority for assessment of his age and/or the provision of accommodation and support under the Children Act 1989. The local authority in question agrees to accommodate and support KA as a child pending a Merton compliant age assessment.
One month on, the local authority concludes its assessment considering KA to be 5 years older than claimed (aged 22). As a result, KA is moved to adult NASS accommodation. Fortunately, a week later, KA was referred to Edward Taylor at Osbornes for advice and assistance. Upon considering the assessment and taking instructions from KA, Edward considered there to be the following key grounds of challenge:
- During the assessment, KA was asked whether he has documentary evidence of his age. He responded stating that he has a baptism certificate in Eritrea. He offered for the local authority to contact his family in Eritrea. He also provided details of the school he attended. Nonetheless, the local authority made no attempts to obtain documentary evidence of KA’s age.
- KA provided a credible account on age but was irrationally disbelieved. To support this argument, Edward obtained a statement from KA’s appropriate adult from the age assessment interviews.
- Clear exaggeration in terms of KA’s physical appearance, and failure to appreciate cultural differences and how upbringing, trauma and the asylum experience impacts on the ageing process.
Edward also advised KA to try to obtain a photograph of his baptism certificate from his relatives in Eritrea. KA managed to do so, and the document confirmed his claimed date of birth.
A pre-action letter was sent to the local authority contending that they should now accept KA’s claimed age/date of birth, and accommodate and support him forthwith as a child pursuant to its obligations under the Children Act 1989. It was argued in the alternative that the local authority should withdraw the age assessment and agree to undertake a fresh one, whilst accommodating and supporting KA as a child of his claimed age/date of birth.
The local authority agreed to reassess KA’s age and to accommodate and support him in the interim. The local authority decided to contract out the new age assessment and at KA’s first interview, the assessors decided to accept his claimed age/date of birth. As a consequence, KA remains accommodated and supported by the local authority under the Children Act 1989, and will continue to benefit from this until he is at least 21 years old (including support with education, health and financial support). The fact that KA’s age is now accepted will also assist in his application for asylum.
HA arrives in the UK from Sudan, claiming to be a child aged 17. The Home Office refers him to a local authority for assessment of his age and/or the provision of accommodation and support under the Children Act 1989. The local authority concerned commences accommodating and supporting HA as a child pending a Merton compliant assessment.
Two weeks later, the local authority concludes its assessment considering HA to be 6 years older than claimed (aged 23). HA was therefore moved to adult NASS accommodation. Fortunately, two weeks later, HA was referred to Edward Taylor at Osbornes for advice and assistance. After reviewing the assessment and speaking with HA, Edward considered there to be the following main grounds of challenge:
- A telephone interpreter was used at the first interview and there was an obvious lack of understanding.
- No appropriate adult during either age assessment interview.
- The local authority failed to take account of HA’s mental health difficulties despite being clearly aware of the same.
- The local authority sought to construe matters against HA which were in fact supportive of his claimed age/date of birth.
- The local authority made irrational observations/findings, particularly in relation to physical appearance and demeanour.
Edward therefore sent a pre-action letter to the local authority arguing that they should now accept HA’s claimed age/date of birth, or alternatively withdraw the age assessment and agree to carry out a new one, meanwhile accommodating and supporting HA as a child of his claimed age/date of birth.
The local authority agreed to carry out a new assessment and accommodate and support HA as a child in the interim. The new assessment ultimately considered HA to be 5 years older than claimed (aged 22), so only one year younger than the previous challenged assessment. Edward reviewed the new assessment and considered it to again be flawed. He identified the following core grounds of challenge:
- HA provided a clear, credible and consistent chronology, backed up by a number of supportive details. The assessors made no criticisms of it and gave no reasons for rejecting it and yet decided that he was several years older.
- The assessors took into account the previous assessment. They should not have done so given that it had been challenged and the local authority agreed to undertake a new one.
- Various conclusions were perverse and/or contradictory to the appropriate adult notes.
- Excess weight placed on physical appearance and demeanour.
Edward therefore sent a second pre-action letter to the local authority. However, on this occasion, the local authority maintained the lawfulness of its assessment. Osbornes were therefore left with no alternative but to issue Judicial Review proceedings at the Administrative Court. Interim relief was sought in the form of an order requiring the local authority to accommodate and support HA as a child pending the outcome of the claim or further order.
The Judge decided to allow the local authority 14 days to provide an acknowledgement of service and grounds of defence, before the applications permission and interim relief were considered. The local authority filed their submissions and a Judge thereafter granted permission for the Judicial Review and also the application for interim relief. The Judge further ordered that the matter be transferred to the Upper Tribunal for a fact-finding exercise in relation to HA’s age.
Edward prepared detailed witness statement evidence for HA and also challenged the local authority’s failings in relation to disclosure. A Case Management Hearing then took place at the Upper Tribunal where the local authority was heavily criticised by the Judge for failing to comply with the Tribunal’s directions. Further directions were therefore required in the lead up to trial.
Around two weeks before trial, the local authority conceded the case and agreed to accept HA’s claimed age/date of birth. The parties agreed the terms of an order to bring the case to a conclusion. As a result, HA remains accommodated and supported by the local authority under the Children Act 1989, and will continue to benefit from this until he is at least 21 years old (including support with education, health and financial support). The fact that HA’s age is now accepted will also assist in his application for asylum.