UK - Court of Appeal, 14 July 2003, B (R on the application of) v Mayor and Burgesses of the London Borough of Merton [2003] EWHC 1689
Country of Decision:
Country of Applicant:
Date of Decision:
14-07-2003
Citation:
[2003] EWHC 1689
Additional Citation:
[2003] 4 All ER 280
Court Name:
Court of Appeal
Relevant Legislative Provisions:
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 12
National / Other Legislative Provisions:
UNCRC
UK - Children Act 1989
UK - Criminal Justice Act 1982
UK - Magistrates Act 1980
UK - Nationality, Immigration and Asylum Act 2002
UK - Children Act 1989
UK - Criminal Justice Act 1982
UK - Magistrates Act 1980
UK - Nationality, Immigration and Asylum Act 2002
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Headnote:
This case sets out the requirements for a fair assessment of age when an undocumented individual‘s claim to be a child is disputed.
Facts:
The National Asylum Support Service (NASS) provides support for destitute asylum seekers. An asylum seeker is defined by UK law as being at least 18 years old.
Unaccompanied asylum seeking children (UASCs) who are found to be in need are owed a duty by the local authority under Part III of the Children Act 1989.
The applicant claimed to be 17 years old. He had no documentation to support his claimed age. He was interviewed by a social worker with the assistance of an interpreter on the phone. The social worker from the local authority, the London Borough of Merton, decided that he was over 18. He applied for judicial review of that decision. In the absence of statutory guidance, both parties asked for the court’s guidance on the lawful assessment of age in the event of disputes between the local authority and an UASC.
Decision & Reasoning:
The court reviewed domestic authority on age assessment, largely drawn from criminal cases and policy documents.
The court found that there was no onus of proof on the applicant and held that such formality would be unhelpful. Social Services should not simply adopt a decision made by the Home Office but make its own decision. If this involves an interview then certain safeguards should be followed.
The court found that there was no onus of proof on the applicant and held that such formality would be unhelpful. Social Services should not simply adopt a decision made by the Home Office but make its own decision. If this involves an interview then certain safeguards should be followed.
The purpose of the interview must be explained to the applicant.
It is preferable for an interpreter to be present rather than on the phone and a note by the interpreter of the questions and answers would have been relevant in the case where there may be allegations of interpreting error or misrecording.
It is not necessary as a matter of law that a verbatim note of an interview is taken, but such a note would assist the court.
It is not necessary that the note be countersigned by the applicant and it would be “thoughtless” to have asked the applicant who did not speak or read English to sign.
The social worker should bear in mind cultural and background differences.
The applicant should have the opportunity to address or answer any point that the decision maker was minded to take against him.
For the decision to be lawful, adequate reasons had to be given to the applicant. Anxious scrutiny is required in cases such as this where human rights and asylum are involved. For that reason, late or subsequent evidence sought to be relied upon will be accepted.
However, the courts should bear in mind the qualification of the persons involved.
The reasons do not have to be long or elaborate.
Outcome:
Applying these principles to the facts it was decided that the decision that the applicant was not a child was unlawful.
Observations/Comments:
There have been several further cases in the administrative courts about “Merton compliant” assessments and the guidance has been refined. Two qualified social workers are now required to conduct the assessment and it is necessary for them to have the appropriate training and experience.
Merton has now become the standard for age assessment in England and Wales. Age assessment is so often disputed that the Judicial reviews of such assessments have now been transferred from the High Court to the Upper Tier of the Immigration and Asylum Chamber of the Tribunal.
Other sources cited:
Royal College of Paediatrics and Child Health, Guidelines for Paediatricians 1999.
Nationality Directorate of the Home Office Policy Bulletin 33; Age Disputes.
Case Law Cited:
UK - Nash v Chelsea College of Art and Design [2001] EWHC Admin 538
UK - R (Ashworth Mental Hospital) v Mental Health Review Tribunal [2001] EWHC admin 901
UK - R (Q) v Secretary of State for the Home Department [2004] QB 36; [2003] 2 All ER 905
UK - R v Westminster Council ex parte Erkamov [1996] 2All ER 302
