22 August 2022
This decision, handed down by Swift J in the High Court, concerns the requirements for fairness in local authority age assessments for asylum seekers and the correct approach to be adopted.
The claimant, a Sudanese national, arrived in the UK on 21 May 2021 and made an application for asylum, claiming to be 17 years old. The local authority did not believe the claimant to be a child and assessed him to be 23 years old. The claimant was provided with initial accommodation in the area of the local authority. Social workers employed by the local council also assessed the claimant as being 23 years old. The claimant’s legal representatives on two occasions complained about the local authority’s decision, firstly levelling several criticisms of the way the age assessment process had been conducted and then enclosing additional evidence in respect of the claimant’s age and requesting a reconsideration, which the local authority rejected.
The claimant commenced judicial review proceedings, contending that the local authority’s decision that he was not a child was substantively wrong and that the assessment had been carried out unfairly because, inter alia, an interpreter should have been present in-person, the assessors did not carry out the process with an open mind, the interview should have been conducted with an appropriate adult and he should have been given the opportunity to respond to the assessors’ concerns about his credibility ().
More broadly, this also raised the issue of whether, and if so in what circumstances, a local authority may carry out a “short-form assessment” without conducting a “full, Merton-compliant assessment”.
Swift J noted that for the purpose of exercising its powers under Part III of the Children’s Act 1989 to provide accommodation and support to asylum seekers under the age of 18, the question of whether the person is under 18 years old is one of jurisdictional fact, for determination by a relevant court and not as a matter of reasonable assessment by the local authority subject only to the usual public law legality requirements (). This does not diminish the requirement for fairness in age assessment decisions: if a decision is taken by a process which does not meet the legal standard of fairness, it can be challenged and may be quashed on that ground alone, irrespective of its substantive merit ().
As regards what fairness requires in this context, Swift J referred to a number of principles derived from Stanley Burnton J’s judgment in R (B) v Merton London Borough Council  4 All ER 280 ([7, 10-14]):
- There is no burden of proof on the applicant, and so no assumption as to whether the applicant is an adult or a child; the assessment should be undertaken on its own terms.
- The assessment decision must be made based on reasonable enquiry and what this requires will depend on the circumstances of the case.
- When an interview or other form of enquiry is undertaken, it must be undertaken fairly. Should an individual’s credibility be an issue, that should be made clear and dealt with during the investigation process. Where the local authority considers that the individual claiming to be a child is lying, this view and the reasons for it must be explained to them and they should have an opportunity to respond before the final decision is taken.
- Although there may be a range of things to ensure the procedure followed was fair, these may not be requirements in every case. Fairness is a matter of substance not simple form.
These points considered, Swift J observed that there was no binding case law to the effect that an assessment undertaken by a single social worker could not, for that reason alone, meet the legal standard of fairness (). Swift J further held that there was no “one size fits all” approach requiring an appropriate adult to be present whenever an age assessment interview takes place; this should be based on the functional importance of the opportunity to have an appropriate adult present in the case at hand ().
Given the above, the distinction between a Merton-compliant age assessment and short-form age assessment is legally irrelevant (). The correct approach in all cases starts with the principles identified in Merton of reasonable investigation and fair process, but what is required depends on the circumstances of the individual case (). Local authorities should determine the scope of the reasonable investigation step by step (). Applying that to the present case, Swift J found that the arrangement for an interpreter to attend by phone turned out to be satisfactory and that there was nothing to suggest that the assessment had not been conducted with an open mind (, ). Nor did the absence of an appropriate adult render the process unfair ().
However, by failing to put to the claimant the matters which the local authority considered to go to his lack of credibility and to give him an opportunity to respond before making its determination, the local authority fell short of the legal standard of fairness required. The claimant’s claim succeeded to that extent (, ).
This is a common-sense judgment, reiterating that local authorities have a duty to assess what fairness requires in the individual case when conducting age assessments, and that this cannot be reduced to a mere “checklist” of requirements. It emphasises that where an individual’s credibility is considered to be lacking, the individual in question must be given an opportunity to address these concerns. At the same time, the decision draws a sharper distinction between what may generally be regarded as good practice and what is legally required of local authorities, thereby permitting a considerable degree of latitude in the conduct of such assessments.
Natalie Nguyen is an incoming pupil barrister at Monckton Chambers
 Swift J considered that “short-form” assessment cannot readily be understood but seems to denote (i) the “very obvious” case where it is clear the person is not a child from their appearance and demeanour, (ii) a situation falling short of the “very obvious” case but where the assessment was conducted through a single interview, or (iii) a situation where an interview has been conducted without one of the procedural safeguards considered to be hallmarks of Merton compliance. See - for further discussion.