PM, R (on the application of) v Hertfordshire County Council

A local authority is not bound by an incidental age finding made by the First-tier Tribunal in an asylum or immigration appeal. Such a finding is not a judgment in rem unless the tribunal has jurisdiction to determine age substantively against the world. The authority must make its own assessment for the purposes of its duties under the Children Act 1989, while taking account of relevant new evidence and respecting the tribunal’s reasoning and decision-making process. The authority may have different evidence and must exercise its own judgment. It is unlawful to treat the tribunal’s finding as binding, infer a precise date of birth from it, and withdraw support without a substantive reassessment.

The claimant, an Afghan asylum seeker supported as a child by the defendant local authority under section 20 of the Children Act 1989, had undergone differing age assessments. In an asylum appeal, the First-tier Tribunal found that he was over 18 at the time of the hearing. The Council treated that finding as binding, inferred that he had been an adult on arrival, revoked its earlier assessment and ceased accommodation, support and schooling.

The claimant sought judicial review. The Council argued that the tribunal’s finding was a judgment in rem, that it was an abuse of process to dispute it, or that the Council could simply adopt it without a further assessment.

Application allowed. The decision to cease accommodation, support and schooling was quashed.

1. The doctrine of judgments in rem depends on the jurisdiction conferred on the court or tribunal by Parliament. A judgment is binding on the world only where the tribunal has a primary jurisdiction to determine the relevant status or right substantively against all persons. Incidental findings made on the way to an in personam decision do not have that effect.
2. The First-tier Tribunal’s jurisdiction under Part 5 of the Nationality, Immigration and Asylum Act 2002 was to determine specified appeals against immigration decisions. Although age could be relevant to credibility and human-rights issues, the tribunal had no primary jurisdiction to determine and declare the claimant’s age against the world. Its finding that he was over 18 was therefore not binding on the Council.
3. The claimant’s position was not a collateral attack on the tribunal’s determination. He accepted that the immigration decision stood and sought only to establish his entitlement to local-authority support in different proceedings. The finding was neither binding in rem nor an estoppel preventing him from relying on further evidence.
4. The Council had the primary responsibility to assess age for the purposes of its section 20 duties. It could consider evidence placed before the tribunal which had not previously been available to it, and the tribunal’s reasoning and decision-making process. It was not entitled simply to treat the tribunal’s finding as evidence having determinative weight or to speculate that the tribunal would have adopted a particular date of birth.
5. The Council had failed to undertake a substantive reassessment before revoking its September 2009 assessment and ending support. The matter was remitted for reassessment. Pending that reassessment, and for 14 days after notification of the reassessment and resulting services, the Council was directed to continue accommodation, support and schooling on the basis of the September 2009 assessment.

Not stated in the judgment.