QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of HBH)
|The Secretary of State for the Home Department
|Essex Crown Prosecution Service
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Ms Jenni Richards (instructed by The Treasury Solicitor) for the Defendant
Mr Anthony Arlidge QC (instructed by The Chief Crown Prosecutor, Essex Crown Prosecution Service) for the Interested Party
Hearing dates: 29 and 30 January 2009
Further written submissions: 2, 3, 5 and 12 February 2009, and 24 and 28 April 2009
Crown Copyright ©
Mr Justice Keith:
"You have applied for asylum in the United Kingdom. In making your application, you have claimed that your date of birth is 30 April 1988. However, you have failed to produce any satisfactory evidence to substantiate this claim. Furthermore, your physical appearance strongly suggests that you are eighteen years of age or over.
In the absence of any satisfactory documentary evidence to the contrary, the Secretary of State does not accept that you are a minor and you will be treated as an adult " [Italics supplied]
There is no evidence about whether HBH's physical appearance was in fact regarded as significant, and the letter almost certainly referred to his physical appearance only because, as we shall see, the methodology used at the time to assess whether someone was a minor or not focused on their physical appearance. In view of the assessment that he was at least 18 years old, some subsequent documents gave him a notional date of birth of 1 January 1987.
" def prod. Says 17 yrs but deeming exercise + Ct. say 19 or 20 yrs "
And following HBH's plea of guilty, and his committal in custody to Chelmsford Crown Court for sentence, the warrant of commitment completed by the clerk of the court recorded that, although HBH had given his date of birth as 30 April 1988, he had been "deemed" by the court to be "over 18". That exercise to determine HBH's true age was presumably carried out pursuant to section 99(1) of the Children and Young Persons Act 1933, which provides (so far as is material):
"Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child or young person, the court shall make due enquiry as to the age for that purpose, and for that purpose shall take such evidence as may be forthcoming at the hearing of the case , and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person "
We do not know the nature of the enquiry conducted by the magistrates' court into HBH's age, or what evidence, if any, it took on the topic, but the court may have been given the information which appears in the police file on HBH's prosecution, namely that Stansted was "an avenue for organised gang masters to facilitate entry of Chinese nationals", and that 17 was "an age that is now cherry picked by the crime network in an attempt to evade prosecution through age".
"HHJ isn't persuaded [HBH] is 17 thinks 18."
Again, we do not know the nature of any enquiry conducted by the Crown Court into HBH's age, nor whether it took any evidence on the topic, though the exercise to determine HBH's true age was presumably carried out pursuant to section 164(1) of the Powers of Criminal Courts (Sentencing) Act 2000, which provides (so far as is material):
"For the purposes of any provision of this Act which requires the determination of the age of the person by the court , his age shall be deemed to be that which it appears to the court to be after considering any available evidence."
The Immigration Service's policies
"Sometimes people over the age of 18 claim to be minors in order to prevent their detention or effect their release once detained. In all such cases people claiming to be under the age of 18 must be referred to the Refugee Council's Children's Panel
IND [the Immigration and Nationality Directorate] will accept an individual as under 18 (including those who have previously claimed to be an adult) if:
- credible documentary evidence has been provided, such as a passport or national ID card supporting the person's age
- their appearance strongly supports their claim to be under 18
- a full social service department age assessment has been carried out suggesting that their age is under 18
IND does not commission medical age assessments. However the claimant may submit medical age assessment independently. This must be considered and due weight must be attached to it when considering an age dispute case. It should be noted though that the margin for error in these cases can be as large as 5 years either way. This is a complex area and, if in doubt, caseworkers should seek the advice of the Children and Family Asylum Policy Team in the Asylum Appeals Policy Directorate.
Once treated as a minor the applicant must be released as soon as suitable alternative arrangements have been made for their care.
Where an applicant claims to be a minor but their appearance strongly suggests that they are over 18, the applicant should be treated as an adult until such time as credible documentary or other persuasive evidence such as a social service department age assessment [is] produced which demonstrates that they are the age claimed
In borderline cases it will be appropriate to give the applicant the benefit of the doubt and to deal with the applicant as a minor.
It is IND policy not to detain minors other than in the most exceptional circumstances. However, where the applicant's appearance strongly suggests that they are an adult and the decision is taken to detain it should be made clear to the applicant and their representative that:
- we do not accept that the applicant is a minor and the reason for this (for example, visual assessment suggests that the applicant is over 18), and
- in the absence of acceptable documentation or other persuasive evidence the applicant is to be treated as an adult."
Two comments should be made about this policy. First, the three ways in which someone would be accepted as under 18 were, of course, alternatives. It was sufficient for one of these criteria to be satisfied for someone to be treated as a minor. Secondly, although the second of the three criteria simply referred to the person's appearance, their demeanour was taken into account as well. That was why the document dated 30 November 2005 referred to both appearance and demeanour, even though the standard letter HBH was given on 31 July 2005 did not.
"BORDER AND IMMIGRATION AGENCY will accept an individual as under 18 (including those who have previously claimed to be an adult) unless one or more of the following criteria apply:
- there is credible and clear documentary evidence that they are 18 years of age or over;
- a full 'Merton-compliant' age assessment by Social Services is available stating that they are 18 years of age or over. (Note that assessments completed by social services' emergency duty teams are not acceptable evidence of age);
- their physical appearance/demeanour very strongly indicates that they are significantly 18 years of age or over and no other credible evidence exists to the contrary"
Two comments should be made on these changes. First, although physical appearance and demeanour remained relevant factors, they now had to indicate very strongly that the asylum-seeker was significantly over the age of 18. Secondly, the reference to a "Merton-compliant" assessment was a reference to the judgment of Stanley Burnton J (as he then was) in R (on the application of B) v Merton London Borough Council  4 All ER 280. In that case, Stanley Burnton J gave guidance as to the requirements of a lawful assessment by a local authority of the age of young asylum-seekers claiming to be under the age of 18 for the purpose of determining whether the duties of a local authority under Part III of the Children Act 1989 were engaged.
- If their physical appearance or demeanour does not suggest very strongly that they are aged 18 or over, they will be treated as under the age of 18.
- If their physical appearance or demeanour very strongly suggests that they are significantly over the age of 18, they will be treated as aged 18 or over.
- If their physical appearance or demeanour very strongly suggests that they are over the age of 18, but not significantly over the age of 18, they will be treated as someone whose age is in dispute, and pending a final determination of their age (for example, following a Merton-compliant assessment), they will be treated as if they are under the age of 18.
"It would be unreasonable to expect the same level of understanding from minors as we do from adults. Not only could some children not be expected to challenge the advice or instructions of a facilitator or another adult with whom they may be travelling, but they may not understand they need a passport or the consequences of destroying or disposing of it en route to the United Kingdom.
Children have different levels of maturity, which might relate to age or other factors, and this need[s] to be taken into account in assessing the merits of a child's defence. Unaccompanied minors who have committed the offence would need to be considered on a case by case basis "
It has to be said that young asylum-seekers who claimed to be under the age of 18 were being prosecuted at this time for offences under section 2 of the 2004 Act. A policy paper issued by the Immigration Law Practitioners' Association in February 2006 reported that between 22 September 2004 and 2 July 2005 11 children were convicted, though the age of 10 them had been disputed by the Immigration Service.
The previous litigation
The reason for the current claim
(i) There is no certainty that HBH would have been assessed by the Immigration Service as under the age of 18 even if his age had been assessed lawfully, i.e. by a "Merton-compliant" assessment. There is no definitive medical test which can point conclusively to someone's age, and at the end of the day the outcome depends on the subjective assessment of a social worker. The fact that HBH was subsequently assessed by two social workers from Cambridgeshire to be 17 years old does not necessarily mean that social workers covering Stansted Airport would have reached the same conclusion especially as HBH was found by the magistrates to have been 19 or 20, and by the judge in the Crown Court to have been 18.
(ii) Even if HBH would have been assessed by the Immigration Service as under the age of 18 had his age been assessed lawfully, there is no certainty that it would have been thought that he might have been able to establish the statutory defence in section 2(4)(c) of the 2004 Act. He did not say anything when he was interviewed which suggested any particular vulnerability on his part. He did not claim that he was the victim of trafficking or that he had not left China voluntarily.
(iii) In any event, there is nothing to suggest that the assessment of HBH's age by the Immigration Service played a significant part in the process which led to HBH's conviction. In other words, there is no evidence that among the factors which led the magistrates to conclude that HBH was 19 or 20, or the judge in the Crown Court to conclude that he was 18, were the assessment of the Immigration Service that he was at least 18.
"Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct."
Is it open to a magistrates' court, when faced with an application under section 142(2), to set aside a conviction on the basis that the defendant would not or at least might not have been prosecuted if the reason why he was prosecuted was because his age had been assessed wrongly as it turned out by a process which was unlawful? Mr Anthony Arlidge QC for the CPS contended that it is not open to a magistrates' court to set aside a conviction under section 142(2) on that basis. One of his arguments is that the court is functus officio. This cannot be right: section 142(2) constitutes a statutory exception to the principle that the time will come when the court has completed its task, and cannot revisit the case.
The legality of the methodology