Durani v Secretary of State for Home Department & Anor

An immigration detention decision cannot rely on an age assessment unless the assessment satisfies the applicable Merton principles. Except in an obvious case, age cannot be determined solely from appearance. The assessment should consider relevant background, history and circumstances, and fairness requires that decisive concerns be put to the person assessed so that they may respond.

An assessment expressly marked inconclusive and requiring further work cannot constitute a full compliant assessment. Officials must consider whether the assessment complies with the relevant policy and principles. They cannot rely on it merely because its failure to comply is not obvious. Detention based on such an assessment is unlawful where the person would not otherwise have been detained.

The claimant, an Afghan national, was detained between 25 May and 15 June 2011 for immigration purposes. The detention decision relied on a 2009 age assessment by Nottinghamshire County Council, which treated him as born on approximately 1 November 1992. It was later accepted that he had been born in or around November 1994 and was aged 16 when detained.

The Secretary of State accepted that detention would have been impermissible if the assessment was not compliant with the principles in R (B) v Merton LBC [2003] EWHC 1689 (Admin), or if officials were not entitled to rely on it. The central issues were whether the assessment was compliant and whether the detention was lawful.

1. The claim succeeded. Detention from 25 May to 15 June 2011 was unlawful. Damages were to be assessed if not agreed.
2. The assessment was plainly not a full Merton-compliant assessment. Its outcome form stated that the claimant was over 18, a child aged 17, and that the assessment was inconclusive and required further work. The assessment had been conducted shortly after a clandestine journey, when the claimant was tired, had a headache and was giving confused answers. The social workers themselves could not determine whether the confusion resulted from limited education and understanding or from some other cause.
3. The assessment also failed to meet the fairness requirement identified in R (B) v Merton LBC [2003] EWHC 1689 (Admin). Where a provisional view is formed that an applicant is lying about age, the decisive matters must be identified and put to the applicant. Here, the assessment did not explain the physical features relied upon, did not address relevant cultural differences, and appeared to contain an unexplained calculation which might in fact have supported an age of 16 rather than 17.
4. The Secretary of State’s policy required officials to apply their minds to whether an assessment complied with the Merton principles. The policy could not be reduced to a rule that an assessment was usable unless its non-compliance was obvious. Public law principles required proper consideration of compliance.
5. The additional arguments, including the need for an appropriate adult and reliance on section 55 of the Borders Citizenship and Immigration Act 2009, did not need to be determined. The latter argument would have been contrary to R (AA) v Secretary of State for the Home Department [2012] EWCA Civ 138.

First-instance judicial review proceedings. The judgment does not state an appellate history.