A v London Borough of Croydon

Age assessment of an unaccompanied asylum-seeking claimant is an administrative decision for the Secretary of State or local authority, not a matter for the court to decide on the merits. Judicial review is confined to legal error, including irrationality or failure to consider material evidence. A properly conducted Merton-compliant assessment by trained, experienced social workers may be preferred to a paediatrician’s report. Such a report must be considered, but it need not be given weight and will rarely justify changing the assessment. The decision maker need not obtain independent medical advice. In borderline cases the benefit of doubt should be given to the claimant. The claims failed because the assessments and reasons disclosed no error of law.

Two linked judicial review claims concerned A and WK, unaccompanied asylum seekers who said they were under 18. Croydon and Kent assessed them as adults. Each relied on paediatric evidence from Dr Birch. The claims challenged the assessments, the Secretary of State’s reliance on them and, in WK’s case, detention and proposed return to Greece under the Dublin Regulations. A preliminary Article 6 challenge had been rejected by Bennett J, [2008] 2 FLR 1026, and the appeals dismissed by the Court of Appeal, [2008] EWCA Civ 1445. The central issue was whether the later paediatric evidence required the authorities to change their assessments or treat the claimants’ ages as doubtful.

1. Disposition. Both claims were dismissed. The assessments and the subsequent decisions disclosed no error of law.
2. Administrative decision and review. Age assessment is a factual and administrative decision entrusted to the Secretary of State or local authority. The court must not substitute its own assessment. Judicial review is supervisory and permits intervention for irrationality, including a failure to consider a material matter: Puhlhofer v Hillingdon LBC (1986) 84 LGR 385 and the CCSU case. The court adopted the distinction between local-authority child-care functions and the court’s supervisory role, reflected in E v London Borough of X [2005] EWHC 2811 (Fam), [2006] Fam 187, and In Re B (Children) (FC) [2008] UKHL 35. In borderline cases, the benefit of doubt should be given to the claimant.
3. Assessment requirements and medical evidence. A Merton-compliant assessment should be conducted by properly trained and experienced social workers, normally working together, through appropriate interviews and observations. Relevant history, culture, circumstances and vulnerability must be considered, and adequate reasons must be given. A paediatric report cannot be ignored, but the authority may attach little or no weight to it where its own assessment is sound. Medical methods cannot reliably determine chronological age, and there is no general duty to obtain independent medical advice. The court distinguished Shala v Birmingham City Council [2007] EWCA Civ 624, which concerned a genuinely medical issue. The reports remained admissible, but admissibility did not determine weight. The contrary propositions in R(A) v London Borough of Croydon [2008] EWHC 2921 (Admin) were disapproved.
4. A. Although parts of the assessment wording were unsatisfactory and the claimant’s intellectual difficulties caused concern, the inconsistencies in his account, his presentation and the social workers’ observations provided a sustainable basis for concluding that he was over 18. Croydon’s review gave satisfactory reasons.
5. WK. Kent was entitled to rely on its fuller assessment, including observations by residential staff, despite Dr Birch’s conflicting report. The Home Office policy of giving prominence to a Merton-compliant assessment was not an unlawful fetter because contrary evidence still had to be considered. WK had been assessed as over 18 when he entered the United Kingdom, so his detention pending removal to Greece was lawful. The court observed that any artificial date of birth should normally precede entry into the United Kingdom.

The judgment was a first-instance determination of the merits of the two lead claims. It records the following earlier procedural steps:

1. Court of Appeal: appeals against the preliminary Article 6 ruling were dismissed on 18 December 2008: [2008] EWCA Civ 1445.
2. High Court (Administrative Court): Bennett J rejected the preliminary Article 6 challenge on 20 June 2008: [2008] 2 FLR 1026.
3. High Court (Administrative Court): the present court determined the merits and dismissed both claims.