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

Compliance with an executive detention policy is reviewed on conventional public law grounds. A disputed-age policy must receive a pragmatic and purposive construction. Whether an age assessment is Merton-compliant is judged against the standards prevailing when the assessment was conducted.

An assessment may be “available” although the decision-maker does not possess a full copy. The decision-maker must nevertheless evaluate its reliability and compliance. A judicial determination that a person is over 18 can constitute credible and clear documentary evidence of age.

Further submissions under paragraph 353 of the Immigration Rules need no prescribed form, but the communication must objectively advance asylum or human rights grounds. A tribunal’s age finding carries substantial weight but does not formally bind the executive decision-maker.

The appellant, an Afghan national, claimed to have entered the United Kingdom as an unaccompanied child. A local authority assessment concluded that he was over 18, and the First-tier Tribunal later made the same finding when dismissing his asylum appeal. Another local authority subsequently accepted his claimed date of birth after initially reaching a contrary formal assessment.

The Secretary of State refused discretionary leave and detained the appellant pending removal. His solicitors then sent a pre-action letter asserting that he was a minor. Robin Purchas QC, sitting as a Deputy High Court Judge, dismissed his judicial review claim in [2013] EWHC 1619 (Admin).

The appeal concerned whether the detention breached the applicable age and detention policies, whether the pre-action letter constituted further submissions under paragraph 353 of the Immigration Rules, and whether the Secretary of State mistakenly regarded the First-tier Tribunal’s age finding as legally binding.

1. Appeal dismissed. The appellant’s detention was lawful. When he was detained, the Secretary of State had recently reconsidered the available material and maintained the determination that he was an adult. The appellant had not challenged that decision or otherwise indicated that his age remained disputed. When the solicitors’ letter later revived the dispute, the Secretary of State remained entitled to rely upon the First-tier Tribunal’s judicial finding that he was over 18.

2. The expression “Merton-compliant” in the detention policy referred to compliance with the evolving body of age-assessment case law. Compliance was to be judged according to the standards prevailing when the assessment was conducted. In February 2009, neither assessment by two qualified social workers nor an offer to have an independent adult present had yet become an invariable requirement. The evidence did not establish that the appellant had been denied an opportunity to answer adverse concerns.

3. An age assessment may be “available” without being in the Home Office’s immediate possession. The word meant obtainable or accessible. The Home Office nevertheless had to make an independent, public-law evaluation of the assessment’s reliability and compliance. In the absence of the full assessment, the material should include its conclusion, an assurance of compliance and short reasons. The summary supplied in this case lacked adequate reasons and alone could not establish compliance.

4. The policies had to be read together. A judicial determination that a person is over 18 can amount to credible and clear documentary evidence of age. It therefore justified treating this appellant as an adult notwithstanding the inadequacy of the local authority summary. Had detention depended only on that summary, it would have been unlawful, but only nominal damages would have followed because proper inquiry would probably have confirmed compliance.

5. The letter of 7 October 2011 was not further submissions under paragraph 353 of the Immigration Rules. It raised no asylum or human rights ground and indicated only that removal before the claimed eighteenth birthday would be unlawful. The Secretary of State rationally understood it as a challenge based on age and detention.

6. A First-tier Tribunal age finding is not formally binding upon the Secretary of State. It carries weight and will ordinarily be followed absent good reason. Read with the earlier decision letter, the reference to being “bound” was shorthand for the conclusion that the new material supplied no reason to depart from the tribunal’s finding.

• Court of Appeal (Civil Division): By [2015] EWCA Civ 1137 , unanimously dismissed the appeal and upheld the rejection of all three grounds.
• High Court, Administrative Court: Robin Purchas QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim in [2013] EWHC 1619 (Admin).