Kadri, R (on the application of) v Birmingham City Council & Anor

A local authority determining entitlement to accommodation under the Children Act 1989 is not bound by an age assessment made by the Secretary of State or an immigration tribunal. The bodies discharge different statutory functions, and EU asylum directives do not require a single binding assessment.

A cooperative age-assessment protocol is not legally binding merely because it describes good practice. Failure to use an informal reconciliation or third-party adjudication procedure does not invalidate an otherwise lawful assessment where the omission is immaterial to the applicant’s true age. Age for the purposes of section 20 is a jurisdictional fact ultimately determined by the court.

Four related appeals concerned conflicting assessments of the ages of unaccompanied asylum seekers by Birmingham City Council, the Secretary of State and immigration tribunals. The council treated each claimant as an adult, while immigration judges had treated some of them as children.

The Upper Tribunal quashed the council’s assessments of JS and YK because it considered that the council had departed without good reason from a joint working protocol. Kadri and MWA sought permission to appeal from Administrative Court decisions which had rejected or resolved their challenges.

The central issues were whether failure to follow the protocol rendered the council’s decisions unlawful and whether EU law required a local authority to accept an age assessment made by the Secretary of State or an immigration tribunal.

1. Disposition. Birmingham City Council’s appeals in the cases of JS and YK were allowed, and the Upper Tribunal’s determination was quashed. Kadri and MWA were refused permission to appeal. Sullivan and McFarlane LJJ agreed with the Master of the Rolls.

2. The joint working protocol was guidance describing cooperation and good practice. The evidence did not establish that Birmingham City Council had adopted it as policy. Its third-party adjudication mechanism was also vague and unworkable. The Upper Tribunal therefore had no evidential basis for treating the protocol as council policy.

3. There was no free-standing public law principle of unconscionability which required the council to follow the protocol. Nor was refusal to use its adjudication procedure irrational or unreasonable. Even if non-compliance had amounted to breach of policy or irrationality, it was immaterial to the substantive age assessment: failure to pursue alternative dispute resolution did not indicate that the assessed age was wrong.

4. An adjudicator’s agreement between public bodies could not determine whether a person was a child for section 20 of the Children Act 1989. Age is a jurisdictional fact and is ultimately for the court to determine.

5. The relevant EU directives did not make the Secretary of State’s age assessment binding on a local authority. The Secretary of State determines entitlement to international protection; age may be an evidential element in that decision. A local authority determines entitlement to child-welfare benefits, for which age is necessarily decisive. Its assessment neither decides nor revokes an asylum claim and does not remove the asylum appeal guaranteed by the Procedures Directive.

6. Requiring an applicant to establish minority again, on the balance of probabilities, did not breach the EU principle of effectiveness. The directives left Member States a significant choice of form and method. Separate assessments were undesirable but did not make the exercise of EU rights virtually impossible or excessively difficult.

7. Where a judicial review challenges an age assessment both factually and on orthodox public law grounds, it will usually be preferable to determine all issues at one hearing, or transfer the case to the Upper Tribunal, rather than remit a procedural issue which will leave the factual dispute unresolved.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1432, unanimously allowed Birmingham City Council’s appeals concerning JS and YK, quashed the Upper Tribunal’s determination, and refused Kadri and MWA permission to appeal.
2. Upper Tribunal (Immigration and Asylum Chamber): Quashed the council’s age assessments of JS and YK because it considered the joint working protocol to be council policy and found no good reason for departure from it.
3. Administrative Court: HH Judge Owen QC rejected Kadri’s contention that the council was bound by the immigration judge’s age finding, but permitted a fact-finding hearing in the Upper Tribunal. Beatson J determined after fact-finding that MWA was not a child.