Age matters in asylum cases

16 August 2010 by

Updated 12/9/10 | PM, R (on the application of) v Hertfordshire County Council [2010] EWHC 2056 (Admin) (04 August 2010) – Read judgment

Some people get to a certain age and stop counting. For them, the exposure of their true age to friends or colleagues might cause embarrassment. But for asylum seekers, proving their true age can alter the direction of their lives.

The recent High Court case of an Afghan asylum-seeker has highlighted the different, and often better, treatment which child asylum seekers received compared to their adult equivalents. It has also brought into focus the importance of a court’s initial, and often difficult, assessment of an asylum-seeker’s age, and the duty on local authorities to make up their own minds.

How old?

The Claimant in this case was arrested in November 2008 as he was getting off the back of a lorry in Hemel Hempstead. After a long and difficult journey through Pakistan, Greece and France, he claimed asylum on the basis that he would suffer serious harm or death if he returned to Afghanistan as a result of  a family feud.

He was unable to give an exact date of birth but claimed to be 14. Initially, a local council team gave him a brief assessment and he was found to indeed be a child. Like many asylum seekers, he was given a default date of birth.

The UK Border Agency disagreed. After a formal age assessment in December 2009, he was thought not to be as young as 14 years old but rather in the range of 16-19 years. He was therefore given a new date of birth which would make him 17.

In the hope of resolving the dispute, he was given a formal age assessment at King’s College Hospital, London, which concluded, on the basis of the mature development of his teeth, that his age was 19 years 8 months.

The Claimant’s asylum claim was subsequently refused on 24 July 2009 by the First-Tier Immigration and Asylum Tribunal (‘FTT’), and the UK Border Agency indicated that it considered the Claimant had lied about his age and therefore the rest of his account might not be credible too.

His age was then reassessed (again) by the Council. The problem is that dental age assessments have a margin of error of around 2 years either way, and it is preferable to undertake an holistic assessment, in other words one which includes more factors than simply a person’s teeth. This was done, and the Claimant was reassessed as being 16 again. The Council concluded that:

is a clear need for any assessment to consider the welfare and well-being of such young people including, where it does not compromise safety and well-being of others, to exercise the benefit of the doubt towards the benefit of the young person.

What a difference a day makes

But why go to all of this effort to find out the Claimant’s true age? Mr Justice Hickinbottom pointed out two main areas where the entitlement of child asylum seekers is very different to that of adults.

First, accommodation and benefits. Adult asylum seekers are entitled to support from central government, which may provide them with support, including accommodation and essential living needs. In practice, as the judge pointed out, asylum seekers are dispersed throughout the United Kingdom, to accommodation which has been described by a leading immigration law practitioners’ book “often… less than adequate“. Financial asylum support is also provided to those who are destitute or likely to become destitute within a limited time. The current rate for a single person aged 18-24 is £35.52 per week.

Support is provided to child – i.e. those under age 18 – asylum seekers through local authorities because Local Authorities must by law provide a certain level of support to children in their area. Section 17 of the Children Act 1989 imposes a general duty upon a local authority to safeguard and promote the welfare of children within their area who are in need. This includes a requirement to provide accommodation if s/he is unaccompanied.  In addition,  a local authority must fulfil the parental obligation under section 7 of the Education Act 1996 to ensure a child is educated, that duty being enforced by Article 2, Protocol 1 of the European Convention on Human Rights.

Secondly, the very process of determining a person’s refugee status is different depending on whether a person is a child or an adult. Children are inherently seen to be more vulnerable than adults, and as such the Secretary of State has “historically adopted different, more favourable policies in relation to asylum seekers who are under 18“. Moreover, since November 2009, children have been given extra protection under section 55 of the Borders, Citizen and Immigration Act 2009, under which the United Kingdom Border Agency now have to pay special regard to the need to safeguard and promote the welfare of children. By way of example:

currently… the Secretary of State will not detain a child under her administrative immigration powers, save in exceptional circumstances and then only overnight; and will not remove a failed child asylum seeker for three years or until he reaches the age of 17½ years, whichever is the sooner, unless there are adequate arrangements to receive and look after him in his country of origin on his return.

Holistic assessment

The Secretary of State argued in this case that the assessment of the FTT that the Claimant was over 18 years old was to be a binding judgment, and one which the Council could not go against, even if new evidence arose. The judge rejected this argument, on the basis that the local authority has obligations under care law to assess the Claimant’s date of birth with more precision than the FTT, and therefore in order to discharge this duty it would probably have to do a more accurate assessment, which is to include evidence based on 2 year’s experience of the Claimant’s behaviour (as well as his teeth).

For the average person, age can be an inconvenient truth, not a matter of life or death. This case highlights the difficult but important judgment which courts and local authorities must make when assessing an asylum seeker’s age, an assessment which in extreme cases can change the course of a person’s life. As the judge in this case pointed out, age “certainly matters to young people who seek refuge in this country, often in a state of confusion, and often traumatised by the events that have caused them to flee their own land and the tortuous journey they have made from their land to this”. An age-assessment may turn out to be something of a movable feast, but ultimately it is worth getting right.

Update 12/09/10: See also the decision of the High Court in MC v Liverpool City Council [2010] EWHC 2211 (Admin) (16 July 2010) – para 16: “Merton [i.e. the Merton guidelines, which can be found here] is clear as to the need for an holistic approach. That is what the social workers time and again in the witness box were driven to say that was what they took. And I think it is what they did. I have been left with the distinct impression, however, that there was something of a tendency to think, so far as Cheryl HHall was concerned, that MC was a little older than perhaps he was.”

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