Local government - Age assessment - Asylum seekers - Unaccompanied minors

R (on the application of FZ) v Croydon London Borough Council: CA (Civ Div) (Sir Anthony May (president QB), Lady Justice Smith, Lord Justice Aikens): 1 February 2011

The appellant asylum seeker (Z) appealed against the judge’s refusal to grant permission to apply for judicial review of the respondent local authority’s assessment of his age

Z, an unaccompanied asylum seeker from Iran who claimed to be aged 17, was referred to the local authority for child welfare services. An initial age assessment was carried out by two social workers who concluded that Z was 19.

Z then produced a vaccination card in support of his age and the local authority conducted a review. On review the assessors refused to accept the vaccination card as proof of his age. Z’s application for permission to seek judicial review was refused; the judge held that the local authority had conducted a proper assessment in line with the requirements set out in R (on the application of B) v Merton LBC [2003] EWHC 1689 (Admin), [2003] 4 All ER 280.

The issues for determination were, inter alia: (i) whether a local authority, when assessing age, was obliged to give an applicant the opportunity to respond to provisional adverse findings; (ii) how the court should address the question whether the factual issue of the young person’s age was arguable.

Z contended that the judge was wrong to base his decision on a conclusion that the assessment was Merton compliant as he should have examined the factual case to see whether there was consistent evidence capable of establishing that he was the age he claimed.

Held: (1) It was part of the age-assessment process that, if the decision-maker formed the provisional view that the applicant was lying as to his age, the applicant must be given the opportunity to address matters that led to that view, Mertonapplied. The procedure adopted in the instant case did not achieve that requirement.

In the absence of formal central government guidance, the court should not be prescriptive of the way in which that might be done.

Matters should not be over-judicialised and it was not appropriate to require in every case that a formal ‘minded to’ letter was sent after the initial interview, A v Croydon LBC [2009] EWHC 939 (Admin), [2010] 1 FLR 193 and R (on the application of AW (Afghanistan)) v Croydon LBC [2009] EWHC 3090 (Admin) considered (see paragraphs 20-22 of the judgment).

(2) Z was not entitled to permission simply because he asserted the local authority’s decision was wrong, R (on the application of A) v Croydon LBC [2009] UKSC 8, [2009] 1 WLR 2557 applied.

The test to be applied was whether there was a realistic prospect, or arguable case, that the court would reach a conclusion that an applicant was a younger age than that assessed by the local authority, R (on the application of F) v Lewisham LBC [2009] EWHC 3542 (Admin), [2010] 1 FLR 1463 applied.

In the instant case, permission should have been granted. There were no glaring inconsistencies in his account and no clear analytical reasons why his account was unbelievable.

The vaccination card was not a forgery and was positively consistent with his claimed date of birth. In the circumstances it was appropriate to transfer the case to the Upper Tribunal for the factual determination of Z’s age under section 31A(3) of the Senior Courts Act 1981 (paragraphs 6, 29 and 31)

Appeal allowed.

Jan Luba QC, Shu Shin Luh (instructed by Pierce Glynn) for the appellant; Rhys Hadden (instructed by in-house solicitor) for the respondent.