UK High Administrative Court: unlawful detention based on Al Chodor and disputed age assessment

Monday, July 3, 2017

On 26 May 2017, the UK High Administrative Court ruled on case SS v Secretary of State for the Home Department and Oxfordshire County regarding the detention of an asylum-seeker on the basis of Article 28 of the Dublin III Regulation (risk of absconding) and his disputed age. The applicant is an Afghan national who entered the United Kingdom in September 2015 after having previously applied for asylum in Bulgaria, Hungary and Germany. A first age assessment requested by the Oxfordshire County Council concluded that the applicant was “very clearly over 18 years old”. However, an age assessment ordered by the applicant’s solicitors found him to age between 17 and 18 years old. The applicant was detained due to a risk of absconding in order to ensure his Dublin transfer to Germany.
The applicant contended that his detention was unlawful as his age was disputed and as age assessment was a matter for judicial assessment rather than solely based on an opinion of the Secretary of State. The High Administrative Court, based on the CJEU’s decision in case C-528/15 Al Chodor, ruled that the detention was unlawful as there were then no objective criteria for determining a risk of absconding. However, the challenge against the assessment of his age was not successful. The Court ruled that the legality of treating an individual as an adult for determining the lawfulness of the detention depended on whether the authorities had made a manifest error of age assessment, which it considered not to be the case in the proceedings. It also found no basis for reaching the conclusion that a dispute of age is enough to preclude detention under the Dublin III Regulation. Finally, based on material inconsistencies in the applicant’s account and his overall behaviour, the Court concluded that the applicant was not a child when he was detained.
The Secretary of State for the Home Department has been given permission to appeal to the Court of Appeal.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Dublin Transfer