A, R (on the application of) v Liverpool City Council

A local authority assessing whether an asylum seeker is a child must consider all relevant information and act fairly. It must not treat appearance, dental evidence, or any other single factor as determinative. Statistical or expert evidence must be examined with common sense, including consideration of the subgroup of persons whose characteristics are consistent with being under 18. The authority must make its own reasoned assessment and give the claimant an opportunity to address material relied upon before deciding the issue.

The claimant, an asylum seeker from Afghanistan, said that he was a child. Liverpool City Council first assessed him as 17, but later relied principally on dental evidence and determined that he was over 18. The claimant sought judicial review of the decisions, alleging unfairness and failure to consider relevant information.

The council accepted the principles stated in R (B) v Merton London Borough Council, R (T) v Enfield London Borough Council and R (I and O) v SSHD. The issues were whether the later age determination was unlawful and whether the earlier decision had been made unfairly.

1. The claim succeeded. The determination of 6 November 2006 was quashed. A declaration was granted that the decision of 3 July 2006 was unfair because the claimant had not been given an opportunity to make representations.
2. The court followed the principles identified in R (B) v Merton London Borough Council [2003] 2 FLR 888, R (T) v Enfield London Borough Council [2005] 3 FCR 55 and R (I and O) v SSHD [2005] EWHC 1025 (Admin). A local authority must determine age by having regard to all relevant information. It must not rely solely on appearance or on one category of expert evidence. Its decision must be supported by adequate reasons.
3. The council’s letter of 6 November 2006 wrongly excluded non-dental information. Its role was to assess the dental evidence in the context of the claimant’s other circumstances, not to act as a dental expert. The letter did not show proper consideration of the non-dental evidence relied on by Dr Michie.
4. The statistical material also required a commonsense analysis. Even if the dental characteristics made it more likely that a person was 18 or over, some persons with those characteristics would still be under 18. The council had to consider how to identify whether the claimant belonged to that subgroup and whether the other dental features added anything to the third-molar analysis.
5. The decision of 3 July 2006 breached elementary fairness. The claimant’s solicitors had specifically asked whether the dental examination was for age assessment and requested any resulting report, but those requests were ignored.
6. The court gave prospective guidance on expert evidence. Experts should remain within their fields of expertise, avoid commenting on an opposing expert’s independence, and present information fairly and impartially. The council was ordered to determine the claimant’s age by 31 July 2007, notify his solicitors, and take no adverse action for 14 days thereafter.