Interim Protection For Age-Disputed Minors – The Remaining Questions
The Law Of… Protecting Age-Disputed Asylum Seekers
Two weeks ago, the Government announced that due to an "administrative error" it had underestimated the number of lone refugee children the UK could accept under the Dubs Amendment.
Katy Sheridan, Paralegal in Education Law and Community Care, explains what this means for some of the most vulnerable in society.
Helping A Limited Number Of Asylum Seekers
Initially, the number of unaccompanied refugee children set to be accepted by the UK Government was 350, which has now marginally increased to 480.
Whilst the increase is welcomed, the Government’s decision to end the Dubs amendment going forward means – amongst other things – that there very may well be an increase in the number of lone children entering the UK clandestinely and claiming asylum on arrival.
These children are often age-disputed by the Home Office and the relevant Local Authority (LA). The case of R (On the application of S) v The London Borough of Croydon (Equality and Human Rights Commission Intervening), which was decided in February this year, provides a robust tool for the protection of disputed children prior to the start of their age assessment and will hopefully put an end to the legal limbo for these traumatised children and adolescents.
What Did The Case Cover?
At the centre of this case was an Iraqi national who arrived in the UK unaccompanied in September 2016, who claimed asylum and said he was 15 years old. The Home Office refused to believe him, and instead formed the view that his physical appearance and/or demeanour indicated that he was 'significantly' over 18. As a result, he was placed by the Home Office into Brigstock House (accommodation for adult asylum seekers) in Croydon.
He was then referred to the LA, which agreed to carry out a Merton compliant (lawful) age assessment. But, it refused to provide him with accommodation until the assessment, despite the relevant statutory guidance stating 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."
The LA refused to accommodate the asylum seeker on the grounds that:
- Whilst he could be a child he could also be an adult, and that the risks of putting an adult into accommodation with children are higher than putting a child into accommodation with adults
- If the individual was a child, he was not in need of housing as he was accommodated by the Home Office in Brigstock House
- If he was in fact an adult, providing him with accommodation was not within the scope of the Children Act and, as such, not a social services function to which the statutory guidance would apply
What Was The Decision?
The court decided in favour of the asylum seeker.
Justice Lavender is to be applauded for recognising the circularity of the LA's third argument, in that to agree with it would legitimise what he called a 'curious gap' in the protection of age-disputed minors.
The difficulty with the Croydon’s argument was, of course, that at the relevant time – when a decision needed to be made about accommodation for the individual – the age of the asylum seeker was unknown.
The recognition that age is a matter of objective fact (i.e. either the individual was or was not an adult at the relevant time) should not work against the individual in this instance, and the court’s finding that the LA's view on the application of the guidance was too narrow is testament to this.
A key finding of the court was in paragraph 36 of the judgment:
"A local authority is exercising its social services function of providing support for children… when it carries out ancillary functions such as determining which individuals are and are not children, and dealing with individuals whose age is yet to be determined."
Why Is This Important?
The recognition that the age assessment itself and "dealing with" age-disputed individuals, including providing them with accommodation, is an ancillary function of providing support to children to which the relevant statutory guidance applies is key as it fills a significant gap in the law.
One circular benefit will be that the disputed children will be better placed to be age-assessed in an appropriate and fair way. Unaccompanied asylum-seeking children are amongst the most vulnerable in society and are often emotionally traumatised. As age assessments will involve probing questions (often requiring children to recall obscure details from their education or traumatic details from their journey) it is unreasonable to expect a child to do so without the benefit of safe, suitable accommodation and the support that comes with being accommodated under section 20 of the Children Act (access to education, healthcare and a keyworker). To expect otherwise prejudices the child’s ability to recall details, which will be a key factor in assessing their credibility.
The Remaining Questions
The court concluded that LAs are obliged to follow the statutory guidance unless there are 'cogent reasons' for departing from it.
Three questions remain:
- What is a ‘full’ age assessment?
- What constitutes ‘cogent reasons’?
- How will LAs and the Home Office react to this ruling?
The most pressing question is what constitutes a ‘full’ age assessment, and whether full is in this context synonymous with lawful.
The challenging of age assessments constitute a unique form of judicial review in that the court substitutes the judgement of the LA for its own. It is a fact-finding jurisdiction – meaning that the only question before the court is the objective age of the claimant in question and not the procedural flaws in a decision (which constitute the usual grounds for challenging the acts of a LA) – although this will be relevant as to their bearing on the assessment’s outcome.
Despite this, it seems unlikely that an age assessment that lacks essential procedural elements would constitute a full assessment.
As this is not the sole ground on which an age assessment can be declared unlawful, it will be interesting to see where this definition is drawn.
It will be even more interesting to see whether an argument can be made that another ‘ancillary function’ to which the guidance applies will be dealing with judicial review proceedings to the substantive age assessment.
This would substantiate claimants' applications for interim relief in Age Assessments, which are already strongly supported by the case of R (BG) v Oxfordshire County Council  EWHC 3187 (Admin), which states that someone should be treated as a child where there is a "strong prima facie case" that someone is a child.
Defining 'Cogent Reasons'
Another question hovers over the definition of ‘cogent reasons’ that the LA may invoke to depart from the guidance in this situation.
We have some indication from the court as to what will not constitute a cogent reason. Namely, that the Home Office will have initially screened the claimant and considered them to be an adult if they are accommodated in Brigstock House.
This was rightly rejected by the court as amounting to circular reasoning – by agreeing to assess the age of the person, the defendant acknowledges the possibility of their minority.
To place reliance on an age assessment, which one disagrees with, as a justification to depart from the Statutory Guidance, cannot be a cogent reason. Although it may perhaps lead to LAs more often refusing to assess a person at all (now that LAs cannot just assess someone but not accommodate them in the interim period), the relevant children can judicially review a refusal to assess age.
The court also identified the Association of Directors of Children’s Services (ADCS) guidance as a relevant consideration in relation to determining whether a LA will have a cogent reason, which is also to be welcomed. Most notably, the guidance makes it clear that "the risks of placing a relatively unknown child or young person are mitigated by the fact that they will be closely supervised" whereas "the dangers in not taking a child into your care are multiple."
Social workers have an ongoing obligation to promote the welfare of children. Safeguarding concerns must therefore consider the children that the disputed person may be placed with (which can be mitigated) and the risks associated with placing the disputed child themselves in unsafe and unsuitable accommodation.
It is hoped that the development of 'cogent reasons' someone might have for departing from the Statutory Guidance will be created in alignment with the ADCS guidance.
What Should We Take Away From This?
Another recent case, R (On the application of AA) v Secretary of State for the Home Department  EWCA Civ 138 also confirms that the Home Office will be liable for damages for unlawfully detaining people who are identified as children, following a Merton compliant age assessment. This is despite the Home Office having reasonable grounds to believe they are an adult at the time of the detention.
The hope is that as a result of this ruling the Home Office will be more cautious about how it uses physical appearance and/or demeanour to determine whether someone is significantly over 18.
As a combined result of this and the case of S v Croydon, it is also hoped that asylum-seeking children will be given a fairer chance in suitable accommodation to have a lawful age assessment.