Age Dispute JR: Imogen Proud succeeds for unaccompanied child asylum seeker

11 Jan 2022

R (GB) v LB Lambeth CO/2734/2021

Age disputes are a unique species of public law litigation.

They arise when an unaccompanied asylum seeker, claiming to be a child, presents himself to a local authority seeking accommodation and support under the Children Act 1989. Local authorities carry out a process involving a series of interviews, known as an ‘age assessment’, which results in the local authority attributing to the young person a date of birth. If the young person is assessed to be over 18, the local authority owes no duties under the Children Act 1989, and he passes to the care of the Home Office. The young person’s age on arrival to the UK also has implications for the test which the Home Office will apply when assessing an asylum application.

Where the young person disagrees with the local authority’s conclusion, the mode of challenge is by way of judicial review in the Administrative Court. Since Baroness Hale’s judgment in A v Croydon [2009] 1 WLR 2557, the main ground of challenge is that the local authority has made an error as to the precedent fact of the young person’s age. Orthodox public law grounds are relevant, particularly at the permission stage, but are likely to be subsumed in any final determination of objective fact of the young person’s age. When permission is granted, the JRs are generally transferred to the Upper Tribunal (Immigration and Asylum Chamber) for a fact-finding hearing, since that tribunal is well-equipped to decide questions of fact on contested evidence.

R (GB) v Lambeth BC was such a dispute. GB is an asylum seeker from Eritrea. He claimed to have entered the UK aged 17 and to be 18 at the time of issue. The issue of his age was of continuing relevance as it determined whether he was a “former relevant child” and a person “qualifying for advice and assistance” under the Children Act 1989. The local authority considered GB to be 20 at the time of their assessment. GB had enjoyed a very successful 11-month foster placement, which both he and his foster mother wished to continue after his 18th birthday, which was brought to an end after the age assessment when GB was transferred to Home Office adult accommodation. Pending an upcoming hearing, the local authority has agreed to accept GB’s claimed age and to accommodate him as a care leaver.

It is very common that age disputes are brought to an end by settlement. Generally, the agreement reached is that the local authority will withdraw its assessment and re-assess. The result achieved in this case, namely the local authority accepting the young person’s claimed age, is much rarer.

Imogen Proud was instructed by Manjit Mandair at Osbornes Law.

The Public Law Practice Group at Monckton has a great deal of expertise of age dispute litigation, with our barristers having acted in some of the leading cases in this area. A number of our members are regularly instructed to provide advice and representation in JRs concerning age assessments.