Introduction

This article will provide an overview of some of the key legal cases concerning age assessments and support for those whose age is disputed.

In 2020, an already unusual year, unaccompanied asylum-seeking children (“UASC”) whose ages were disputed faced a plethora of new challenges: many children were sent to live in hotels along with adult asylum seekers; Kent County Council stated that it would no longer look after any more UASC arriving in Dover; and the Home Office wrote a letter to local authorities promising to “bankroll” any legal challenges that arose from age assessments that it wanted to be sped up. This article will look at how some of these issues were dealt with in the Courts and look forward to what lies ahead in the new year, including Kent Intake Unit's social worker policy and whether any statutory framework for age assessments is coming.

Margin of appreciation in short-form age assessments

In January 2020, the High Court once again looked at the issue of abbreviated age assessments in AB v Kent County Council [2020] PTSR 746. It was reiterated that brief age assessments based on physical appearance and demeanour would only be permitted in obvious cases and that “it is incumbent on the authority to ensure that any such decision takes into account the margin for error in the abbreviated nature of the assessment” (§44). A Merton-compliant age assessment should not take place or the sake of form (§35), but only in cases where the “answer is obvious” (§§33-34).

It is particularly of note that while Mrs Justice Thornton DBE noted that the Royal College of Paediatricians opine that the margin of error in age assessments can sometimes be a much as 5 years either side” (§22), this only applied to full age assessments. Mrs Justice Thornton DBE refused “to specify a permissible margin of error for initial assessments by local authorities based on physical appearance and demeanour” (§46). Any such margin of error may depend on the circumstances of the assessment.

This point was similarly considered in RM v Manchester City Council (unreported) where, in December 2020, HHJ Sephton QC, sitting as a Judge of the High Court, considered Guidance issued by Manchester City Council which provided a two-page pro-forma entitled “Guidance on Making a Provisional Decision on Age”. The Guidance was issued to assist social workers in deciding whether or not to have a full Merton-compliant age assessment. The Guidance was declared as unlawful for failing to have regard to the margin of error that is inherent in age assessments, particularly short-form age assessments based on fragile factors such as physical appearance and demeanour. It was not quashed owing to a particular point that was clarified in evidence in relation to the particular claimant.

Hotel accommodation for UASC

Later in the year, two cases arose out of the Home Office’s use of hotels as temporary accommodation of asylum-seekers.

First, in R (NG, AL and KM) v London Borough of Hillingdon [2020] EWHC 2847 (Admin), the High Court considered a renewal application for interim relief. The case concerned three UASC who resided in adult NASS accommodation, which was at the time hotel accommodation in Crowne Plaza near Heathrow. The local authority, Hillingdon, on being given notice that the claimants were within their area, agreed to assess the claimant’s age. Hillingdon accepted that, as age disputed UASC, the children were “children in need” within the meaning of s.17(10) Children Act 1989 but disputed that they were under any duty to accommodate them under s.20 Children Act 1989 as they did not “require” accommodation as the hotel accommodation.

Whilst only an interim relief application, it is worth noting that Mrs Justice Lang DBE held that the claimants had a good arguable case that the Council was sidestepping its statutory duties and that failing to accommodate the claimants was a “significant departure from past practice by local authorities” (§18). The departure was from the statutory and non-statutory guidance and the case law of S v Croydon LBC [2017] PTSR 744 in which it was initially held that adult NASS accommodation was unsuitable for children.

Mrs Justice Lang DBE held that “NASS accommodation is not set up to cater for the needs of children and young persons.” (§10) and that even though S v Croydon arose in the context of bed and breakfast and hostels, the risks applied equally to hotels (§12). Of particular concern was that Hillingdon was not relying on the circumstances of the pandemic as a reason for the use of hotel emergency housing (§17).

Hillingdon sought to argue that Clearsprings, the on-site provider of support for this particular NASS accommodation, were providing the level of safeguarding support that would normally be provided in semi-independent settings offered to 17-year-olds by local authorities. This was disputed by the investigation of the claimants’ solicitors who spoke to Clearsprings. Clearsprings staff informed the solicitors that they were not even aware that the claimants were putative children, and there was no evidence that they had provided support to the claimants (§14).

Mrs Justice Lang DBE also noted the corollary safeguarding concerns raised by the lack of training for hotel staff; for instance, that there was no evidence that: the hotel staff had been giving the claimants any extra help; that they were given training in safeguarding; nor was there any evidence that they have enhanced “Disclosure and Barring Service” (“DBS”) checks although they were working with children. (§11).

In considering the balance of convenience Lang J noted that there is a risk of dispersal in NASS accommodation where there “may not be any facilities for children in place and any educational and welfare provision put in place for them by this Council will be disrupted” (§19). This risk of dispersal arose in BNB, below.

Mrs Justice Lang DBE acknowledged that there was no prospect of the claimants compensating the Council for the costs incurred by accommodating them under s.20 CA 1989 but that the risk to well-being of the claimants weighs more heavily in the balance and the potential harm to them cannot be easily remedied (§24).

Mrs Justice Lang DBE, therefore, granted permission and interim relief.

Second, Brent had also seen a hotel within its area, a Holiday Inn in Wembley, turned into temporary accommodation for asylum seekers. Ten UASC came to the attention of the local authority, who Brent agreed to assess their age. However, in the interim, Brent, as with Hillingdon, refused to accommodate the UASC; one of whom challenged this decision in R (LS) v London Borough of Brent (unreported). This was a renewal application for permission.

Brent sought to argue that the circumstances were exceptional and that they were entitled to depart from the guidance in S v Croydon and the other guidance on age disputed children. Additionally, they sought to argue that they did not have to accommodate LS because: the Home Office have said he appeared to them to be over 25; Brent had conducted a welfare check; the time in the adult accommodation would be short; and, that the pressure on Brent’s resources was great. No evidence was provided regarding the resource threat. These arguments were rejected by Mrs Justice Foster DBE. In doing so, Foster J noted the “heavy presumption that adult accommodation such as the Holiday Inn is not suitable for a putative child” (§26d) and the judgment of Lang J in NG, repeating the decision that  “it is arguably unlawful to treat adult accommodation as suitable for putative child asylum seekers” and to do so would be a “significant departure from past practice by local authorities” (§29 LS, citing §18 NG above). While this presumption may be overcome, this had not been done so in the circumstances. In particular, Foster J noted that Brent had failed to consider that failing to provide accommodation had an impact on the other obligations owed to looked after children and the significant detriment suffered without it and that “adult provision offers little by comparison” (§26g).

Whose duty is it anyway? UASC and multiple local authorities

Curiously, one child who had been in hotel accommodation in Hillingdon at the same time as NG, was dispersed before the hearing in NG took place to Kent. He was displaced to the notorious Napier Barracks within the area of Kent. R (BNB) v Kent County Council [2020] EWHC 3587 (Admin) concerned his application for interim relief to be accommodated and supported in suitable accommodation commensurate with his age pending a Merton-compliant age assessment. Initially, the claim had been brought against Kent as the Defendant and Hillingdon as an interested party as Hillingdon had initially accepted that it would assess the claimant’s age. In ordering the hearing, Foster J did not order that Hillingdon attend the hearing and they did not do so.

Kent sought to rely on a short age assessment conducted by Kent Intake Unit social workers, the body that the Home Office established in order to age assess UASC arriving from Dover following Kent’s statement in August 2020 that they no longer had the capacity to safely support and accommodate any other UASC. Kent Intake Unit had assessed him to be over 25 and Kent relied on this arguing that BNB’s age was not in doubt. Kent argued that even if BNB’s age was in doubt, the balance of convenience lay with Hillingdon who had previously agreed to age assess the claimant. Kent had made an application to join Hillingdon as a Defendant in order for this order to be made as such.

The arguments that BNB’s age was not in dispute were rejected by HHJ Walden-Smith, sitting as a Judge of the High Court, who held that “there is a clear and obvious triable issue in this case” (§19). Equally, she noted that while Hillingdon was not responsible for BNB’s dispersal, they were “taking advantage of avoiding the responsibility it had already accepted prior to the move” (§20).

HHJ Walden-Smith noted that while the forced move to NASS accommodation within Kent did not absolve Kent of its responsibilities, Hillingdon had accepted a responsibility and they should not be able to duck that responsibility (§23).

HHJ Walden-Smith joined Hillingdon as a Defendant and stated that while both Kent and Hillingdon may have responsibility to carry out the appropriate age assessment and provide support and accommodation, Kent had provided evidence that it was facing a “very real crisis” and had provided sufficient information that it was Hillingdon who should fulfil these obligations. HHJ Walden-Smith noted that

The only reason that this claimant could be disbursed to Kent was because he remained within the Crown Plaza Hotel even after it was recognised that he was a putative child by Hillingdon. This is an issue which is already subject to the court's scrutiny as to whether that was indeed appropriate” (§21)

In circumstances where the UASC whose age was disputed had been in a local authority for over 14 months the High Court, on the same day as BNB, in R (Manchester City Council) v Oxfordshire County Council (HH, a minor, intervening)  (unreported) held that the position was “unequivocally” that the local authority in whose area H currently resided, and where HH had done so for 14 months, Manchester, was the local authority with tasked with ongoing duties to him under the Children Act 1989 and any duty to assess age. This arose from circumstances where Manchester initiated judicial review proceedings against Oxfordshire arguing any such responsibilities were that of Oxfordshire.

Interim relief and continuing duties (s.23C Children Act 1989)

At the end of the year, Mr Justice Nicol considered the case of a putative child who was just “a few days” away from turning 18 in R (AS) v Liverpool City Council [2020] EWHC 3531 (Admin). It provided helpful guidance with regards to duties owed to former relevant looked after children and also considered the standard to be shown in interim relief applications for UASC.

As to interim relief Nicol J held at §13 that:

there is no hard and fast rule that a claimant like AS must show a strong prima facie case, even though the relief sought might be characterised as a mandatory injunction, but that characterisation is one factor which can properly be taken into account in assessing the balance of convenience. The strength of the Claimant’s claim (so far as it can be judged) is also a factor to be taken into account in the balance of convenience.

On whether interim relief should be granted for a child who was about to turn 18, Nicol J considered that while duties owed to former relevant children are “more attenuated” than ss.17 and 20 Children Act 1989 duties, the duties under s.23C Children Act 1989 are “real and important” (§22i). It was also emphasised that even though the Home Office might provide him with NASS accommodation if interim relief was refused, “the nature of that support is very much less than if he was owed the duties of a former relevant child” (§22ii).

Nicol J also rejected Liverpool’s suggestion that as the claimant’s age had been assessed, the ADCS Guidance was no longer relevant. To hold that the guidance ceased to apply would be to:

ignore the particularly high level of scrutiny that the court must pay to such a decision. As Picken J. said in R (MVN) v London Borough of Greenwich [2015] EWHC 1942 (Admin), the role of the Court is akin to that of the local authority. That meant that the Court should follow the Merton guidelines and should also apply the benefit of the doubt principle.” (§22iii)

Looking ahead to 2021

Kent Intake Unit guidance 

Questions remain about Kent Intake Unit’s policy of conducting what it terms “short Merton-compliant assessment”. The Guidance restates that its “primary objective 1” is age assessment. It states that a short Merton-compliant age assessment must “only be conducted if assessed as appropriate in the professional opinion of the social worker and if in accordance with age assessment case law and the ADCS age assessment guidance”. Given the guidance and case law is clear that full Merton-compliant age assessments must be carried out in all but obvious cases (see AB, above), it is unclear how a short Merton-compliant age assessment could ever be “in accordance with case law”. It lists as “primary objective 2”, welfare concerns. Given the clear vulnerability of UASC, this as a secondary concern is worrying.

These concerns are amplified by reports and criticisms of Kent Intake Unit’s handling of UASC where they have been reported to have been held for days without adequate access to beds or showers and being interviewed late in the night.

Statutory footing for age assessments?

Chris Philp MP, Minister for Immigration Compliance and the Courts, gave evidence to the Home Affairs Committee on 2 December 2020. He was asked whether the “benefit of the doubt” was a principle still afforded to UASC whose age is disputed. Worryingly, he announced that:

I do not want to announce policy, but one area we are looking at closely is whether we can legislate to clarify better in statute how these age assessment processes work so that we remove some of the ambiguity that currently exists. Of course, the risk goes both ways. The lawyers representing people say it is very risky if you take someone who is under 18 and accidentally say they are over 18, which is obviously true. Equally, if you take someone who is significantly over 18 and put them in a school, that itself has very significant safeguarding risks. These risks are two-way. In the commentary that we hear about this, sometimes the second of those risks is not adequately taken into account.

It is unclear what benefit statutory footing would add to the sole issue of these risks. ADCS Guidance is clear and takes both these risks into account, but notes that “the dangers inherent in treating a child as an adult are in almost all cases far greater than the dangers of taking a young adult into your care.” Practitioners will be aware that “the ADCS guidance reinforces the statutory guidance that, where a person's age is in doubt, they must be treated as a child unless, and until, a full age assessment shows the person to be an adult.” (§47, S v Croydon, above). 

Inadmissibility guidance 

For completeness, it is worth mentioning that the new Inadmissibility: safe third country cases guidance that seeks to return asylum-seekers to so-called safe third countries within six months of the person’s asylum claim being registered, does not apply to UASC. However, the guidance notes that a child may be invited to withdraw their asylum claim if the following conditions are met:

  • a close family member of the child has been identified in a third country, and they are willing to take care of the child;
  • UK social services are content that the family member has the capacity to care for the child and is suitable to do so;
  • the child agrees to be reunited;
  • it is in the child’s best interests to be reunited;
  • the country has agreed to admitting the child to join their family member

Any such withdrawal “must be fully in line with Withdrawing asylum claims (see in particular the section ‘Application of withdrawing asylum claims to children’) and the relevant guidance in the instruction Children's asylum claims.

Right to education

Both NG and LS raised concerns about educational provision to UASC. Some children’s right to an education (Article 2 of the First Protocol, Schedule 1, Human Rights Act 1998) may be being breached, if the interruption to their education is for a significant period.

Indeed, as there is a significant delay in age assessments being heard in the Upper Tribunal, it is not clear what the effect of the Home Office’s promise to bankroll any challenges to age assessments that are sped up.

Representation

All of the UASC above were represented by Stuart Luke or Martin Bridger of Instalaw. Except for AS, where Laura Gibbons of the Greater Manchester Immigration Aid Unit represented the UASC. I was instructed on BNB and NG, above, along with Antonia Benfield who acted in some of the other cases outlined above.