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

An age assessment of a borderline-age asylum seeker must meet minimum standards of inquiry and fairness. Except in clear cases, age cannot be determined solely from appearance. The claimant must be given an opportunity to address provisional adverse credibility findings, and an appropriate adult should be offered where appropriate. A public authority must independently assess whether a local-authority assessment is compliant before relying on it. A later representation constitutes a fresh claim where materially new information has a realistic prospect of success and is not properly answered. Detention founded on a fundamentally flawed assessment or an unconsidered fresh claim is unlawful. Ordinary damages may reflect vulnerability and detention as an adult; aggravated damages require additional high-handed, insulting, malicious or oppressive conduct.

The claimant, an Afghan national, was assessed by Wiltshire Social Services as aged 18 shortly after entering the United Kingdom. The Secretary of State relied on that assessment in refusing asylum, and the AIT dismissed his appeal. After the claimant’s older brother obtained asylum, the claimant made a fresh claim referring to their consistent accounts and respective ages. The Secretary of State rejected it without addressing that issue and detained the claimant pending removal.

An urgent judicial review application resulted in his release. The claim before the Administrative Court was limited to damages for unlawful detention. The issues were whether the Wiltshire assessment was Merton compliant, whether the later information constituted a fresh claim which had been unlawfully mishandled, and what damages should be awarded.

1. Age assessment. The Wiltshire assessment was not Merton compliant. It was conducted by one social worker, without an appropriate adult, and without giving the claimant an opportunity to address the adverse view that he was older than claimed. Its reasoning was materially inadequate and appeared to rely on appearance alone. The assessment therefore failed the principles stated in R (on the application of B) v Merton London Borough Council [2003] 4 All ER 280, as further explained in R (on the application of NA) v London Borough of Croydon [2009] EWHC 2357 (Admin) and R (FZ) v London Borough of Croydon [2011] EWCA Civ 59.
2. Secretary of State’s independent duty. Although considerable weight may be given to a local-authority assessment, the Secretary of State must consider it independently and establish whether the relevant principles were followed. The conclusion that this assessment was compliant was unreasonable and irrational. The approach in A v London Borough of Croydon [2009] EWHC 939 (Admin) confirmed that a properly conducted Merton assessment may generally be preferred to later medical or other material, but that qualification did not assist where the original assessment was fundamentally defective.
3. Fresh claim. The representations of 23 February 2010 were a fresh claim under rule 353 of the Immigration Rules. The brother’s accepted claim materially engaged the claimant’s asserted age and asylum case. The Secretary of State failed to address the respective ages and therefore failed to ask the correct question under WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495.
4. Detention and damages. The detention was unlawful because it rested on the flawed assessment and the failure to consider the fresh claim. Under R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671, false imprisonment is a trespassory tort actionable per se. Ordinary damages were assessed at £7,500, applying the guidance in Thompson v Commissioner of Police of the Metropolis [1998] QB 498 and later detention cases. A further £2,500 was awarded for the high-handed use of handcuffs and refusal to allow contact with assistance or the claimant’s brother. No exemplary damages were awarded.

Judgment was therefore entered for the claimant in the total sum of £10,000.

First-instance judicial review and damages claim in the Administrative Court. The judgment records an earlier urgent application for judicial review allowed by Cranston J on 4 March 2010, resulting in the claimant’s release from detention. The AIT decision dismissing the claimant’s asylum appeal was not appealed.