A person who has entered the United Kingdom to claim asylum is treated differently depending on whether they are an adult or a minor. A minor’s claim is treated more delicately by the Home Office with respect to the asylum process, decision making, and support provided by a Local Authority.

 

Below, we look at a case where an asylum seeker’s age was disputed by a Local Authority, with the social worker involved concluding that the asylum seeker was an adult instead of a child.

 

R (on the application of HAM) v Brent London Borough Council

 

The Claimant was a Sudanese national who entered the UK in May 2021. On arrival he made a claim for asylum and claimed to be aged 17 and therefore should be treated as a child. The local authority did not believe the Claimant and therefore treated the Claimant’s claim as an adult.

 

A month later, a social worker undertook an age assessment on the Claimant and concluded that the claimant was 23 years old.

 

The Claimant instructed legal representatives who wrote a pre-action letter to the local authority criticising how the age assessment had been conducted and provided evidence from a charity organisation who confirmed that they believe that the Claimant’s age is 17. The Local Authority maintained their decision and the Claimant’s legal representatives filed a claim for Judicial Review.

 

Judicial Review Proceedings

 

The Claimant contented that the local authority had undertaken the age assessment unfairly. The Claimant raised the following points in relation to fairness of the assessment:

 

  • the interpreter should have been present in person, not by phone.
  • the assessors had not conducted the interviews with an open mind.
  • the interview was conducted without an appropriate adult.

 

The following arguments were raised in relation to the local authority reaching the wrong conclusion:

 

  • the assessors placed too much reliance on their opinion of the claimant’s appearance and demeanour and not enough weight was given to aspects of the claimant’s appearance that suggested he was a child.
  • the assessors incorrectly concluded that the claimant was ‘reticent’ as part of an attempt to avoid saying anything that might hinder his application.
  • the assessors had failed to realise that if the claimant was reticent that reticence could be because he did not wish to say anything that might prejudice his asylum claim, and not because of any matter relevant to the age assessment.
  • there was no ‘minded to’ process, the claimant was not given the opportunity to meet the assessors’ concerns about his credibility; and
  • the assessors had not recognised the need to give the claimant the benefit of the doubt on unclear matters or recognise ‘a margin of error’.

 

The judgement

 

The Administrative Court considered the case, stating that a fair interview would permit the person who was being assessed a genuine opportunity to explain his position to answer questions that might be put to him and to respond to matters adverse to his case.

 

The Court held that the Local Authority came to their conclusion as they had concerns with the Claimant’s credibility, and therefore these concerns should have been put forward to the Claimant. Accordingly, the Court held that the Claimant’s claim succeeds on the basis that he was not given the opportunity to meet the assessors’ concerns about his credibility.

 

The Court made a declaration that the age assessment was unlawful, however a substantive decision in relation to the Claimant’s age would be transferred to the Upper Tribunal to decide.

 

Our comments

 

The above case shows the importance of seeking legal representation and challenging decisions made by the Local Authority when an incorrect decision is made. Age assessments are done in person and are subject to human error. Should the Claimant in the above case have not contested the Local Authority’s decision, then it would have had a significant impact on the support he receives and on his asylum claim.

 

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