NA, R (on the application of) v London Borough of Croydon

Age assessments of unaccompanied asylum-seeking children remain decisions for experienced social workers, subject to conventional judicial review. The court may scrutinise the decision appropriately in light of its subject matter, consequences and circumstances, but must not decide the child’s age on the merits.

Fairness requires a careful, transparent and holistic assessment. Significant adverse matters must be put to the claimant, preferably while the interview is fresh, and the claimant must have the opportunity to explain them. Relevant identity documents must be understood, translated accurately and assessed in context. Where the balance remains narrow, the claimant must receive the benefit of the doubt. Failure to follow these requirements may render the assessment unlawful.

The claimant, an Afghan national who arrived in the United Kingdom as an unaccompanied asylum-seeking child, claimed to be aged 15. Croydon assessed him first as 17 in December 2008 and then maintained that assessment after a further interview and review in June 2009.

He challenged both decisions. The issues included the intensity of judicial review, the continuing relevance of the first decision, the fairness of the later procedure, and whether the assessments complied with the approach established in R (B) v Merton and subsequent age-assessment authorities.

1. Intensity of review. The court rejected a special requirement of anxious scrutiny. Age assessment remained a matter entrusted to experienced social workers, and judicial review was concerned with legality, fairness, relevant considerations and rationality rather than substituting the court’s view. The consequences nevertheless justified an appropriate degree of scrutiny.
2. December assessment. The first decision materially misunderstood the claimant’s Afghan identity document by treating it as a birth certificate and failing to engage with its apparent contents and context. It also relied on fragile matters such as appearance and demeanour. On the material then available, a conclusion that the claimant was 17 was not reasonably open to a properly directed social worker. The decision was unlawful.
3. June assessment. The later procedure was cumulatively unfair. The claimant was not offered an independent adult, his lawyers were not informed of the fresh interview, the assessment was written up after a substantial delay, and significant inconsistencies were not put to him for comment. Conflicting interview notes reinforced the concern that the decision-maker might have misunderstood material evidence.
4. The reassessment also failed to engage properly with the identity document, the revised translation and the evidence as a whole. A local authority could not simply ignore the document because fraudulent documents existed in Afghanistan. It had to give cogent reasons, undertake a holistic assessment, and balance factors for and against the claimed age.
5. Both decisions were quashed. The matter was to be redetermined afresh. The fresh process required an accurate disclosed translation, notice to the claimant’s lawyers, the opportunity for an independent adult to attend, an opportunity to address significant adverse matters, prompt disclosure of the assessment, and express application of the benefit-of-doubt principle where appropriate. Costs were awarded to the claimant and the transcript was expedited.