Mlloja, R (on the application of) v Secretary of State for the Home Department

A public authority’s failure to follow child-specific asylum guidance may render a later removal decision unlawful. The court must assess the practical significance of the breach, including the child’s age, the duration of the error, the procedures actually used and the risk that the process affected credibility findings. It is unnecessary for the claimant to identify a particular issue that would certainly have been decided differently. It is sufficient that the court cannot conclude that the outcome would inevitably have been the same. The guidance did not create an automatic rule that every procedural breach is fatal. In this case, however, treating a 15-year-old claimant as an adult over an extended period, including conducting a detailed adult interview after the defendant knew he was a child, fundamentally affected the fairness and reliability of the process.

The claimant, an Albanian national, sought judicial review of the Secretary of State’s decision to remove him from the United Kingdom. He had entered aged 15, claimed asylum and was initially treated as an adult, despite later age assessment evidence accepted by the local authority confirming that he was a child. The defendant nevertheless conducted an adult interview and subsequently refused his asylum claim. His appeal to an adjudicator was dismissed, and he was later detained for removal.

The central issues were whether the defendant had breached its own guidance on disputed-age cases and interviewing children, whether that breach made the removal decision unlawful, and whether the claimant’s Article 8 rights had been properly considered.

Claim allowed and removal decision quashed. The court refused permission to appeal.

1. The claimant was treated by the defendant as an adult from his arrival aged 15 until the appeal proceedings, although the local authority’s age assessment had confirmed that he was under 18. From February 2004 the defendant should have known that he was a child, yet continued to process the claim as an adult and conducted a detailed interview in breach of its guidance ([31]–[32]).
2. The child-specific procedures had substantive significance. A child’s lack of knowledge, experience and maturity may affect the ability to answer questions with understanding and insight. The guidance therefore contemplated a generally child-friendly approach, normally avoiding substantive interviews and requiring specially trained interviewers where an interview was exceptional. Adult treatment also exposed the claimant to credibility findings based on inconsistencies between interviews and later evidence ([33]).
3. A breach of guidance is not automatically fatal in every case. The relevant question is whether, in the circumstances, the court can be satisfied that the outcome would inevitably have been the same had the proper procedure been followed. The claimant did not need to identify a particular substantive issue that would certainly have produced a different result ([34]–[35]).
4. Here, the claimant’s age, the two-year delay, the length of time during which the erroneous approach persisted, the interruption to consideration of his claim, and the development of family life and connections in the United Kingdom meant that the court could not be so satisfied. The adult interview and resulting credibility assessment formed part of a fundamentally wrong approach. The decision was therefore flawed and was quashed ([35]–[37]).
5. The failure to submit medical evidence was significant but, standing alone, would not have been crucial to the proportionality assessment. The operative defect was the cumulative and fundamental failure to apply the child-specific procedures ([37]). The order quashed the decision to issue removal directions, with the process to begin afresh. Costs were awarded to the claimant ([38]–[42]).