I & Anor, R (on the application of) v Secretary of State for the Home Department

Where an asylum seeker claims to be under 18, an age-dispute policy must be applied rationally and in accordance with its terms. A credible report from a consultant paediatrician is relevant medical evidence and must not be discounted by misreading general guidance about margins of error. Where the Secretary of State accepts social-services assessments of minority, there must be a rational basis for preferring those assessments over a specialist paediatrician’s assessment. In the absence of such a basis, continued detention is unlawful.

Two asylum seekers claimed to be aged 16. Immigration officers treated them as adults and they were detained at Oakington Detention Centre. Consultant paediatrician Dr Michie assessed each claimant as aged 17, with a margin of error of two years, and provided reports to the Secretary of State. The Secretary of State continued to treat them as adults pending age assessments by Cambridgeshire Social Services, which subsequently assessed both as under 18 and led to their release.

The claimants sought judicial review of the decisions to continue treating them as adults and to continue their detention. The issues were whether the Secretary of State had applied the relevant policy and whether the decisions were irrational.

1. Judicial review allowed. The detention of I from 22 January to 27 January 2005 and of O from 22 January to 28 January 2005 was unlawful.
2. The applicable policy was contained in Disputed Age Cases and paragraph 6 of Unaccompanied Asylum Seeking Children. It required the benefit of the doubt to be given unless physical appearance strongly suggested that the claimant was aged 18 or over. Credible medical evidence demonstrating that the claimant was the age claimed had to be considered.
3. The Secretary of State misunderstood or misapplied the Royal College of Paediatrics and Child Health Guidelines. The statement that the margin of error could sometimes be five years did not establish that such a margin was appropriate in every case. The Guidelines recognised that dental assessment could produce an estimate accurate to within two years for 95 per cent of the relevant population. Dr Michie had undertaken dental examinations and possessed extensive specialist experience.
4. Had the Guidelines been properly understood, Dr Michie’s reports amounted to credible medical evidence demonstrating that the claimants were under 18. At the least, they gave rise to a doubt which, under the policy, had to be resolved in the claimants’ favour.
5. The decisions were also irrational. Both social services and Dr Michie considered physical appearance, demeanour and social history, but Dr Michie additionally had specialist expertise and was qualified to undertake dental examinations. There was no rational basis for accepting the social-services assessments while rejecting Dr Michie’s reports. Administrative convenience could not justify that distinction.
6. A declaration was made that the detention was unlawful. The claims were transferred to the Queen’s Bench Division for assessment of damages if quantum was not agreed. The defendant was ordered to pay the claimants’ costs.