MWA, R (on the application of) v Secretary of State for the Home Department & Ors

Whether a person is a child is a question of precedent fact for the court. A local authority must make its own initial assessment, although it must have regard to relevant earlier findings and give them due respect. The court may conduct its own assessment and determine the most likely age from the evidence. The task is ordinarily an assessment across a range of possible dates, rather than a simple choice between two alternatives. Procedural guidance may assist the assessment, but non-compliance is not necessarily decisive. If the court cannot reach a conclusion from the evidence, the claimant bears the burden of showing that he was under 18 when the statutory duty arose.

The claimant, an Afghan national, sought judicial review of Birmingham City Council’s age assessments, which treated him as over 18 for the purposes of the Children Act 1989. Two Immigration Judges had found that he was a child, and the Secretary of State later accepted that finding, but the Council maintained its own assessment.

The court considered whether the Immigration Judges’ decisions bound the Council, the significance of the Age Assessment Protocol, and the claimant’s true age on the material dates. The claimant and expert witnesses gave oral evidence, as did the Council’s assessing social worker.

1. The application for judicial review was dismissed. The court determined that the claimant had reached 18 by 16 December 2010.

2. Under R (A) v Croydon LBC and R (M) v Lambeth LBC, [2009] UKSC 8, whether a person is a child is a jurisdictional or precedent fact for the court. The local authority must make the initial determination, but the court remains the ultimate arbiter and may remit a flawed decision.

3. The Council was not bound by the Immigration Judges’ findings. It had to reassess the claimant’s age, taking account of the earlier decisions and respecting their reasoning, but it could consider evidence that had not been before the Tribunal. The fact that the Council was not a party to the asylum appeals was material, particularly because it had not been able to cross-examine the claimant or make representations.

4. The court’s task was to assess the claimant’s most likely age from all the evidence. The approach was closer to an assessment across a range of possible dates than to choosing between two fixed alternatives. If the court could not reach a conclusion, the claimant would bear the burden of showing that he was under 18 when the asserted statutory duty arose.

5. Any failure to comply with the Age Assessment Protocol did not determine the issue. Even assuming that the Protocol remained operative, the alleged procedural failure had not materially affected the professional assessment. The court rejected the claimant’s evidence as lacking credibility and placed limited weight on aspects of the expert evidence. The Council’s assessment, supported by the dental evidence, physical features, behaviour, inconsistencies and lack of growth, was sufficiently reliable.

The judgment records two earlier Immigration Tribunal decisions finding that the claimant was a child. The Council was not bound by those findings and conducted a further assessment. The present claim for judicial review was determined at first instance by the Administrative Court.