QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the application of: B
|- and -
|The Mayor and Burgesses of the London Borough of Merton
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nicholas O'Brien (instructed by the Head of Legal Services of the London Borough of Merton) for the Defendant
Crown Copyright ©
Mr Justice Stanley Burnton :
"Both (B's) parents are dead. His father was slayed by masked men. (B) was able to escape. (B) spent a year in Senegal on the streets before being assisted in coming to the UK."
"(B) is a Black African, he is of the Catholic faith. …"
Under the heading "Summary", she noted:
"(B) is a young man who claims to be 17 years old. (B's) appearance is that of a much older man. My calculated guess (is that) he is in his late teens. Unfortunately, (B's) history is that of … experiencing loss and violence and this alone will affect him emotionally."
"(B) is not a child in need. I am not disputing that he is in need in his own right. I have followed the procedure by undertaking an assessment and from this assessment I am taking the stance of the Home Office."
"(Mr B) has the physical appearance of a person older than 17. He does not have a youthful appearance and in my view is at least 18-20 years old.
Throughout the interview (Mr B) was very mature and confident. I am of the view that (Mr B's) level of confidence is unusual for an unaccompanied minor."
Mr Latham relied upon the difference between this statement and that in the form that he was "in his late teens", and said that this part of her witness statement was an ex post facto attempt to justify her decision.
"There were a number of inconsistencies in (Mr B's) account of his history which made (me) doubt his credibility as follows:
a. (Mr B) did not remember what one of his educational diplomas was for. I am of the view that this is unusual for a 17 year old.
b. (Mr B) indicated that he was in school until 4 months ago but later in the interview said that he had been on the streets in Senegal for a year.
c. (Mr B) said that 4 months ago he had to stop school because his parents could no longer afford the fees, yet he said that his father had died a year ago and his mother before that.
d. (Mr B) said that he had been befriended by two strangers (one in the UK who took him to the Refugee Council and one in Senegal who took him to this country). (Mr B) was unable to identify these people. I am of the view that this account was a little far fetched."
"This Department has taken the stance of the Home Office.
The Secretary of State does not accept that you are a minor and is satisfied that you should be treated as an adult. Accordingly, you will need to return to the Refugee Council and request that they advocate on your behalf with the Home Office."
The parties' contentions in summary
i) The inquiries made by the Defendant were inadequate. It is not possible to determine age on the basis of appearance only, and the Defendant should have arranged for a medical examination before making its decision.
ii) There was procedural unfairness, in that he should have been given an adequate opportunity to answer the points that the Defendant was minded to hold against him.
iii) The Defendant did not itself make a determination of the Claimant's age, but simply adopted the conclusion of the Home Secretary.
"In practice, age determination is extremely difficult to do with certainty, and no single approach to this can be relied on. Moreover, for young people aged 15-18, it is even less possible to be certain about age. There may also be difficulties in determining whether a young person who might be as old as 23 could, in fact, be under the age of 18. Age determination is an inexact science and the margin of error can sometimes be a much as 5 years either side.
Overall, it is not possible to actually predict the age of an individual from any anthropometric measure, and this should not be attempted. Any assessments that are made should also take into account relevant factors from the child's medical, family and social history."
"It is possible that (B) has provided a correct birthdate. His social history supports this year of birth with some accuracy. Further his height and weight, skin fold thickness, the skin signs seen in young adults and his dental examination were consistent with a chronological age of 18 ±2 years when compared with published charts of these measures (see references). This observation is supported by non-objective assessment of the psychological maturity of the client during the interview. A more narrow error margin is not possible using these methods. The birthdate given to me today by (B) falls within these wide error limits."
"Assessment of age is a complex task, which is a process and not an exact science. This is further complicated by many of the young people attempting to portray a different age from their true age."
It advises the decision maker/interviewer:
"It is also important to be mindful of the "coaching" that the asylum seeker may have had prior to arrival, in how to behave and what to say …"
Decisions in other contexts
Other guidance as to the appropriate procedure
"It is very important to ensure that the young person understands the role of the assessing worker, and comprehends the interpreter. Attention should also be paid to the level of tiredness, trauma, bewilderment and anxiety that may be present for the young person. The ethnicity, culture, and customs of the person being assessed must be a key focus throughout the assessment.
It is also important to be mindful of the "coaching" that the asylum seeker may have had prior to arrival, in how to behave and what to say. Having clarified the role of the social services, it is important to engage with the person and establish as much rapport as the circumstances will allow. This process is sometimes known as "joining". The assessing worker needs to acknowledge with the young person that they will have had to already answer many questions, and that it may be difficult and distressing to answer some of the questions.
In utilising the assessment framework, the practitioner should ask open-ended non leading questions. It is not expected that the form should be completed by systematically going through each component, but rather by formulating the interview in a semi-structured discussion gathering information at different stages, the use of circular questioning is a useful method as it is less obvious to the person being assessed that the questions relate directly to age and hence may reveal a clear picture of age related issues."
Home Office Policy
"8.1 If the applicant claims to be a minor but his/her appearance strongly suggests that s/he is over 18 the applicant will be treated as an adult until such time as credible documentary or medical evidence is produced which demonstrates that s/he is the age claimed. In borderline cases the Immigration Service will continue to give the applicant the benefit of the doubt and to deal with the applicant as a minor. In accordance with existing policy they will continue to inform the Refugee Council's Panel of Advisors of anyone who has claimed to be a minor, even when the age is disputed and the decision has been taken to treat the applicant as an adult.
9.1 An asylum seeker who declares on arrival that s/he is under 18, and is given the benefit of the doubt by the Immigration Service, will be referred to the local authority social services department (SSD) for support under the Children Act 1989. The SSD will conduct an assessment and on the basis of that assessment may reach the conclusion that the person is aged over 18.
9.2 Where an application is received from an asylum seeker who declares that s/he is under 18, but it is accompanied by a letter from the SSD stating that, in their opinion, the person is aged over 18, s/he should be deemed to be an adult for NASS purposes until such time as s/he can prove otherwise. The burden of proof lies with the asylum seeker. It is up to him/her to prove that s/he is a minor. The applicant should be advised accordingly. A proforma letter, to be adapted as necessary, is attached at Annex A."
The emphasis is in the original.
"34. In my judgment, the following propositions appear from the above authorities:
(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.
(ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:
(a) Whether the new reasons are consistent with the original reasons.
(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.
(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).
(d) The delay before the later reasons were put forward.
(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.
35. To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the Court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the Court may be less demanding, and readier to accept subsequent reasons.
36. Secondly, the Court should bear in mind the qualifications and experience of the persons involved. It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members."
The adequacy of the information available to the Defendant
Other requirements of fairness
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MR JUSTICE STANLEY BURNTON: My judgment has been delivered in draft. I am grateful to counsel for their corrections. For the reasons set out in the judgment, the decision of the defendant as to the age of the claimant will be set aside.
MR LATHAM: My Lord, I do not know whether you have seen a draft order submitted by O'Brien.
MR JUSTICE STANLEY BURNTON: No.
MR LATHAM: We are agreed on the first three elements. Firstly that the decision should be quashed. Secondly that the defendant should reconsider paying this application and be treated as a child. Thirdly that there should be a community legal services assessment of the claimant's costs.
MR JUSTICE STANLEY BURNTON: That is all uncontentious I take it?
MR LATHAM: That is all uncontentious. I would ask for my costs having succeeded. Mr O'Brien opposes that and perhaps we should hear his grounds for opposing it.
MR JUSTICE STANLEY BURNTON: Yes, Mr O'Brien?
MR O'BRIEN: Your Lordship knows, and as was apparent in oral argument, this is a matter which has vexed a number of London boroughs.
MR JUSTICE STANLEY BURNTON: This is a bit of a test case.
MR O'BRIEN: It is a bit of a test and frankly the easiest thing to do would have been to say: all right, we will do it again but because there was a dispute as to the basis upon which one approaches the interview, one almost needed a decision in at least one of these cases in order for everybody to decide how to go about it. I would invite your Lordship to make either no order to costs or that the London Borough of Merton pay a portion of the applicant's costs. Clearly one matter which was resolved was the -- in the original grounds it was suggested that there were well established medical tests to determine this matter, but the test was done and it established, if anything, that our judgment --
MR JUSTICE STANLEY BURNTON: When you say a proportion, what proportion?
MR O'BRIEN: I would say not exceeding 50 per cent.
MR LATHAM: My Lord, I would ask for all my costs --
MR JUSTICE STANLEY BURNTON: Let me go back to Mr O'Brien for a moment. Mr O'Brien, in my experience test cases do not result in a different order for costs generally.
MR O'BRIEN: I have nothing to add, my Lord.
MR LATHAM: My Lord, had it been Shelter who were (inaudible) merits of not repaying costs of a test case, it may be somewhat different.
MR JUSTICE STANLEY BURNTON: Is this is a publicly funded case or is Shelter funding it?
MR LATHAM: It is funded by the Community Legal Services. My Lord, in my submission, we have succeeded. My Lord, as far as the issue of the medical reports were concerned, that was an issue which was knocked on the head very early, and, my Lord, we could have amended, but the costs involved by not amending --
MR JUSTICE STANLEY BURNTON: My recollection is you were contending that there had to be. You were on the verge of contending there had to be a medical inspection.
MR LATHAM: My Lord, we put forward the medical report and the evidence suggesting how difficult it is to reach a medical assessment on the basis of physical appearance. My Lord, the substantive issue was whether the decision should be quashed and we succeeded on that. The duty to give reasons -- and this is where Mr O'Brien suggested that the duty was discharged simply by saying that the applicant was not a child. My Lord rejected that argument and the issue of procedural unfairness, and, my Lord, it was never conceded that there was any procedural unfairness in this case. In those circumstances we have succeeded on all the live issues argued and I would ask for my costs. Might I add this: in view of the changes in the CLS regime it is very significant to solicitors who conduct publicly funded work to obtain a costs order.
MR JUSTICE STANLEY BURNTON: Why is that?
MR LATHAM: My Lord, if they do not obtain a costs order their costs are assessed at a much lower rate. My Lord, the basis is to encourage publicly funded lawyers to only back cases which are going to win.
MR JUSTICE STANLEY BURNTON: I was unaware of that, that is why I am asking you.
MR LATHAM: It has a limited impact on counsel's fees, but, my Lord, it can have as big a difference as 50 per cent as to what solicitors can claim. I also indicate that having taken a case from this court, there is another case where the question of public funding was in issue. My Lord, (inaudible) this case shows quite clearly that the Vauxhall principles apply without regard to the issue of public funding. That is the irrelevance in determining inter partes.
MR JUSTICE STANLEY BURNTON: Thank you very much. I hope as my judgment makes clear, I have every sympathy with Merton in this case and sympathise with all parties, including Shelter, in their desire to obtain a ruling of the court on the appropriate procedures to be followed in such cases. The fact that this is a test case, in my judgment, is not a good reason to deprive the successful claimant of his costs, and although the defendant succeeded on many issues, ultimately they lost because the reasons they gave for their decision originally were wholly inadequate and there had not been compliance with the requirements of fairness. In those circumstances it seems to me that I must award the claimant his costs.