BG, R (On the Application Of) v Oxfordshire County Council

In age-assessment judicial review claims, permission should be granted where there is a realistic prospect that the court would conclude that the claimant is younger than the age assessed by the local authority. The court may evaluate the evidence for itself rather than applying only conventional deferential review. Particular care is required when alleged discrepancies arise from interviews with a child, through an interpreter, shortly after arrival and without a responsible adult or complete contemporaneous notes. For interim relief, the authority’s conscientious assessment does not by itself prevent a mandatory order. Once an arguable case requiring substantive determination is established, the court must apply the public-law balance of convenience, having regard to the protective and precautionary approach required where the best interests of a child may be engaged.

The claimant, an Eritrean asylum seeker, claimed to be aged 17. An initial assessment recorded her as aged 17, but a later full assessment concluded that she was 18 years and 11 months. The claimant challenged the assessment, relying on inconsistencies in recorded dates of birth and other matters identified by the assessors. The central issues were whether the claim passed the permission threshold and whether interim accommodation and support should be restored pending substantive determination. The court also considered the significance of missing underlying interview notes and the transfer of the claim to the Upper Tribunal.

1. Permission. The applicable threshold, stated in [2012] EWCA Civ 547, was whether there was a realistic prospect or arguable case that the court would conclude that the claimant was younger than the age assessed by the local authority. That threshold was crossed.
2. On a substantive age assessment, the court may assess the evidence and reach its own conclusion. Its function is not confined to conventional deferential review of a public authority’s factual assessment. The matter could be transferred to the Upper Tribunal for that assessment.
3. The safeguards applicable to full age assessments include a responsible adult, contemporaneous notes, and attention to tiredness, trauma, bewilderment and anxiety. The summary in AS [2011] EWHC 2091 (Admin) was material to those safeguards. Asking an individual’s age and date of birth at an initial stage was not objectionable, but an initial interview in custody shortly after arrival could generate ambiguity and apparent discrepancies.
4. The court examined the retained notes and found that at least one alleged discrepancy was not a discrepancy when the questions and answers were read carefully. Other underlying notes were unavailable. It was therefore possible that correcting the assessors’ understanding of some matters could materially alter the overall credibility assessment.
5. Interim relief. The appropriate inquiry was arguability and the balance of convenience, modified for the public-law context. The fact that relief would require the authority to act contrary to its own assessment could not alone justify refusal. Once an arguable case requiring a substantive hearing had been established, the court was engaged in a primary judgment concerning objective facts. The protective, precautionary approach and the best interests of children favoured relief. Particular vulnerability was not an essential additional requirement, and delay did not weigh against the claimant in the circumstances.
6. Permission was granted. Interim relief required the defendant to reinstate accommodation support on the previous basis as soon as reasonably practicable and within 14 days, with liberty to apply in writing. The claim was transferred to the Upper Tribunal (Immigration and Asylum Chamber), and costs were reserved.