HAM (R on the application of) v London Borough of Brent

An asylum seeker's age assessment must rest on reasonable, circumstance-specific investigation and a fair process. The distinction between a full Merton-compliant assessment and a short-form assessment has no legal significance. Checklists are useful guides, not universal requirements.

Where credibility affects the proposed conclusion, the person must receive a genuine opportunity to answer the adverse matters before the decision is made. Fairness does not invariably require two social workers, an appropriate adult or an interpreter attending in person. Nor does it require a benefit of the doubt or a margin of error. The statutory question is whether the person is under 18.

The claimant, a Sudanese asylum seeker, said that he was 17. Home Office officials and the defendant local authority assessed him as 23. He sought judicial review of the local authority's assessment of 4 August 2021 and its subsequent refusal to reconsider that assessment after receiving evidence from a youth worker.

The claimant challenged both the substantive determination of his age and the fairness of the assessment process. The parties agreed that the substantive age dispute should be transferred to the Upper Tribunal for fact-finding. The Administrative Court therefore considered whether the local authority's procedure was fair and, more generally, whether age assessments could lawfully be divided into full Merton-compliant and short-form assessments.

1. The claim succeeded in part. The assessment was procedurally unfair because several matters which materially affected the social workers' view of the claimant's credibility were not put to him for an answer. Those matters included inconsistent accounts of how he learned his date of birth, his limited childhood recollections and inconsistent information about schooling. Putting only the assessors' view of his physical appearance did not cure that omission: paras [47]–[53].

2. The governing principles are reasonable investigation and fair process. The investigation must equip the local authority with an appropriate basis for deciding whether the person is a child. Its necessary depth depends on the circumstances. Reasonableness does not require exhaustive inquiry. If interviews are needed, they must give the person a genuine opportunity to explain his position and answer credibility concerns: paras [21], [24], [31]–[34], [41]–[42].

3. The supposed distinction between a full Merton-compliant assessment and a short-form assessment is legally irrelevant. Fairness is substantive and circumstance-sensitive, rather than compliance with either of two prescribed checklists. In an obvious case, appearance and demeanour may suffice. Other cases may require one or more interviews or information from other professionals: paras [23]–[34].

4. Fairness does not invariably require two social workers or an appropriate adult. The involvement of two social workers may be desirable, but the authorities had not established it as a free-standing legal requirement. Whether an appropriate adult is required depends on that person's circumstances and the functional assistance needed. Here, the claimant understood the questions and could advocate for himself, so the absence of an appropriate adult was not unfair: paras [18]–[21], [45]–[46]. The telephone interpreter proved satisfactory: para [43].

5. There is no burden of proof and no procedural entitlement to a benefit of the doubt or margin of error. Under section 105(1) of the Children Act 1989, the question is whether the person is under 18, not whether an assessed range lies close to 18: paras [29], [38]–[39].

6. The court granted a declaration rather than quashing the assessment. It transferred the remaining jurisdictional fact issue to the Upper Tribunal, which would determine the claimant's age for itself as finder of primary fact: paras [53]–[56].

not stated in the judgment.