SB, R (on the application of) v Royal Borough of Kensington and Chelsea

An age assessment interview must be fair, but fairness is fact-sensitive and does not require every procedural safeguard in every case. There is no rule of law that an apparently young person must have an appropriate adult present. Nor does the absence of an interpreter establish unfairness where experienced social workers reasonably conclude that effective communication is possible.

Where appearance and demeanour clearly place a person outside the ordinarily borderline age range, an authority may rely primarily on those matters. It need not invite representations about credibility points which had no material causal effect on its age conclusion.

Because a court determines disputed age as a jurisdictional fact, procedural challenges should ordinarily be considered with the merits. Once permission is granted, the norm should be transfer of the whole case to the Upper Tribunal unless there is a good reason to separate the issues.

The respondent claimed to be 17 when he arrived in the United Kingdom. Two experienced social workers employed by the appellant local authority interviewed him without a Nuer interpreter or an appropriate adult. They assessed him as at least 25, relying primarily on his appearance and demeanour and to a limited extent on inconsistencies in his history.

Bennathan J allowed the respondent’s application for judicial review and quashed the assessment in [2022] EWHC 308 (Admin). He held that the cumulative absence of an interpreter and appropriate adult, together with shortcomings in the opportunity to answer adverse credibility points, made the process unfair.

Although another authority had subsequently assessed the respondent as a child and he had become an adult even on his own case, the Court of Appeal exercised its exceptional discretion to determine the academic appeal. The central issues were whether the interview had been procedurally unfair and whether procedural challenges to age assessments should be separated from the court’s determination of actual age.

1. Appeal allowed. Although the appeal was academic between the parties, it raised questions of general importance for local authorities conducting age assessments. The court therefore exercised its exceptional discretion to determine it.

2. A disputed age is a jurisdictional fact which the Administrative Court, or the Upper Tribunal following transfer, must determine on the balance of probabilities. That feature reduces the independent importance of procedural challenges. A decision on actual age may supersede an earlier procedural lapse. After permission is granted, the norm should therefore be to transfer the whole case to the Upper Tribunal, unless there is a good reason to separate procedural issues from the merits.

3. The absence of an interpreter did not make this interview unfair. The social workers explained their relevant experience, their unsuccessful efforts to obtain a Nuer interpreter, their assessment of the respondent’s command of English and the checks used to ensure mutual understanding. The judge failed to take account of that express reasoning and impermissibly substituted his own assessment for theirs.

4. There is no rule of law that a person claiming to be a child must be offered an appropriate adult for an age assessment interview. Whether the absence of one causes unfairness depends on the circumstances and on what such assistance would add. On the social workers’ reasoned assessment of the respondent’s ability to understand, communicate and advocate for himself, they were entitled to proceed without an appropriate adult. R (Z) v Croydon London Borough Council [2011] EWCA Civ 59 established no contrary rule.

5. An obvious case may be determined primarily by appearance and demeanour. Here the social workers considered that the respondent looked and behaved much older than the ordinarily borderline range of 16 to 20. Their conclusion did not materially depend on reasoning that dishonesty about his history demonstrated dishonesty about his age. It was therefore unnecessary to invite him to answer the three adverse credibility points identified by the judge.

6. Where judicial review principles are applied to an age assessment, the court should treat detailed contemporaneous reasons with appropriate caution before supplementing or undermining them by later material. The judge’s use of the social workers’ notes to cast doubt on their full formal reasons was unprincipled, although it did not determine this appeal.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 924, the court allowed the local authority’s appeal. It held that the assessment was not unlawful for the procedural reasons identified below.
2. High Court, Administrative Court: In [2022] EWHC 308 (Admin), Bennathan J allowed the application for judicial review and quashed the local authority’s age assessment as procedurally unfair.