I’m grateful to one of my Twitter followers for bringing this case to my attention.
MA & Anor, R (On the Application Of) v Coventry City Council & Anor  EWHC 98 (Admin) (19 January 2022)
By way of background, when an unaccompanied person entering the country and claiming asylum asserts that they are a minor, there has to be an assessment of their age. The full assessment of their age is called a “Merton assessment” following earlier case law and there is a lot of very detailed guidance as to how that is to take place. It is tricky, because very often the person has no identification documents or documents that appear falsified, and that there is no agreed reliable way of establishing a person’s age (from time to time the Government floats bone X-rays or dental X-rays, which are still only accurate to within a margin of error of a couple of years). What happens to the person depends very significantly on whether they are determined to be under 18 or not. Sometimes, no doubt, the assessments get it wrong, particularly when one is considering someone who is very close to either side of 18.
The person cannot be detained by the Home Office during that Merton assessment, and instead is accommodated by the Local Authority. There is obviously a significant advantage to the unaccompanied person in a determination that they are under 18, and thus the inherent possibility that the account given will not be wholly accurate.
That obviously has implications on both sides of the equation. On the one hand, we don’t want under 18s to be detained in Home Office detention centres and it is right that we identify unaccompanied minors and provide them with suitable arrangements , and on the other, we don’t really want over 18s being accommodated and potentially educated with children. You can’t have people who are 21 or 22 living in foster homes or children’s homes alongside vulnerable 15 and 16 year olds with everyone involved treating them as minors when they are in fact adults.
There is a provision for a Merton assessment not to take place where either:-
(a) Two immigration officers reach a conclusion that the unaccompanied person is clearly over 25; or
(b) A social worker conducts a short assessment and concludes that it is ‘very clear’ that the unaccompanied person is not a minor.
This case was about Kent County Council’s use of the short assessment process, and the fact that this led to detention of persons who the LA had assessed to be very clearly not minors.
The context is obviously that the burden of conducting age assessments falls disproportionately on some Local Authorities rather than others – areas where there is a port or an airport deal with FAR more such applications than others, and Kent obviously have Dover within their area which is a huge pressure point. Kent were overwhelmed with such applications.
They considered that there were some cases where it was immediately apparent that the person in question was a child, some where it was immediately apparent that the person was an adult, some that required a full Merton assessment and some that required a short assessment to consider which of those categories to place them into.
(Personal comment – that seems to me an entirely reasonable approach for a beleaguered Local Authority to take in unprecedented times)
The assessments in the two particular cases concluded that one person was 20 and the other 21, and that therefore they should be considered as adults and not minors. The argument before the Court was whether the age there meant that the short assessment was the wrong process (i.e a person assessed as being 20 could not be ‘very clearly’ over 18, and the more detailed Merton assessment should have taken place), and whether the age of over 25 as set out for immigration officers might be a more appropriate anchoring point for ‘very clearly over 18’. In fact, because the short assessment would only happen in circumstances where the immigration workers had NOT assessed that the person’s physical appearance was consistent with them being over 25, by their nature the short assessments were dealing with people who DID NOT LOOK OVER 25)
It is possible that (as the SSHD submitted) an experienced social worker might be able to conclude that a person is clearly significantly over 18 based on physical appearance and demeanour even in circumstances where an immigration officer might not reliably be able to do so: making the 25-year threshold more apt for the immigration officer than for a social worker with extensive experience of dealing with children. That might be seen as consistent with the point made in the last paragraph quoted in § 61 above, from the Assessing age section on reduced local authority age assessments, about the particular expertise which local authority social workers have of working with children on a daily basis. However, the circumstances in which the Guidance provides for short form assessments are not limited to cases where the social workers can say, based on appearance or demeanour, that the individual is obviously over 18 (whether significantly or at all). Further, the unreliability of appearance/demeanour as a means of making fine judgments as to age (well recognised in the case law) would make it questionable whether a person regarded, even by an experienced social worker, as appearing to be slightly over 18 could be regarded as an obvious or clear case: especially when newly arrived after a long journey.
- Moreover, such a case is unlikely to transform itself into a ‘clear’ or ‘obvious’ case – in that sense – during the course of the assessment. In the circumstances with which we are currently concerned, both the KIU officer and the social worker must have formed the view prior to the assessment that the individual’s physical appearance and demeanour do not very strongly suggest that they are 25 or older. Their perceived appearance and demeanour are unlikely to change significantly as a result of the interview. Further, the “Decision on age” section of the report form itself does not ask the social worker to revisit the question of whether the individual’s physical appearance and demeanour indicate that he/she is very clearly significantly over 18, nor even that his/her physical appearance and demeanour indicate that he/she is clearly over 18. Instead, the question is whether he/she has been “[a]ssessed to be clearly an adult”.
- In substance, therefore, the process includes taking individuals who are not obviously over 18 based on physical appearance and demeanour, but seeking to assess whether they are clearly over 18 having regard to other factors, such as the nature and credibility of their accounts of their family history, education, journeys to the UK and life narratives generally. That is, indeed, the nature of the assessment purportedly made in relation to the present Claimants. However, such an assessment is in essence the very same type of analysis as a local authority sets out to make by conducting a ‘full’ Merton-compliant assessment: in relation to which the case law considered earlier has held it necessary for a number of safeguards to exist.
- Against that, it may be said that the same types and levels of safeguards may not be required for an initial assessment of the kind with which we are presently concerned. I bear in mind also that the SSHD is seeking to address very difficult circumstances, with increasing numbers of arrivals, and the tension referred to in the case law between observing the welfare principle regarding children and the need to maintain effective immigration controls.
- However – even leaving aside the point that the SSHD claims the short form assessment to be Merton-compliant and to have no qualitative difference from a local authority assessment – I am unable to accept the SSHD’s arguments in full. In particular, the requirements set out in the case law (and the SSHD’s pre-existing policies) for an appropriate adult to be present, and for a ‘minded to’ (or ‘provisional decision’) opportunity, exist because they are necessary elements of a fair and appropriate process (containing appropriate safeguards) designed to assess a person’s age in the absence of documentary records and given the fragility of reliance on appearance and demeanour save in obvious cases. In my view, those features are equally necessary in order to make a reliable assessment of age at the initial stage (and even applying a ‘clearly an adult’ standard) of an individual whose appearance and demeanour do not already indicate that he/she is obviously an adult. That is all the more so in circumstances where the individual in question has only in the last 24 hours reached the end of a usually long and arduous journey, which is bound to impact on his/her ability to respond cogently to questioning about details of his family history, education, journey to the UK and life narrative, at least without the assistance of an appropriate adult and a careful ‘minded to’ process. The risk of adverse inferences wrongly being drawn from incorrect or incomplete answers given due to fatigue and/or misunderstanding in such circumstances is obvious.
- I also do not consider that the SSHD is assisted in this context by the statement at AB § 35 that there may come a point when an experienced social worker considers they have conducted sufficient inquiries to be confident that the person in front of them is either an adult or a child. Other than in clear or obvious appearance/demeanour cases, such a point can only properly be reached where the social workers’ view (viz that sufficient enquiries have been made) has itself been based on a reliable process in the assessment interview so far. I do not consider that that can occur where the process has, from the outset, lacked features which are necessary in order to ensure the reliability of the views formed.
- I do not rule out the possibility of conducting a lawful initial age assessment, in a non-obvious case – i.e. where individual’s physical appearance and demeanour do not indicate that he/she is obviously over 18 – directly after the individual arrives in the UK. However, in my view it is inconsistent with the principles set out in the case law, including the need to conduct a fair and careful assessment, to seek to assess age in a non-obvious case (in the sense I have just indicated) in circumstances where an individual who has just arrived at the UK and been detained (i) does not have the support of an appropriate adult and (ii) is not given a ‘minded to’ opportunity.
- The position in situation (2)/(c)(i) is in my view similar, even if arguably slightly less clear. Here, the KIU officer is minded to form the view that the claimant’s physical appearance and demeanour very strongly suggests that they are 25 years of age or over, but the social workers (whilst considering the claimant still to be ‘potentially’ clearly an adult) disagree. That disagreement in my view has the result that the case can no longer necessarily be regarded as a clear one in the sense referred to in B v Merton, FZ v Croydon, K v Milton Keynes or Assessing age. As a result, the considerations set out in §§ 104-111 again apply, or (at least) they apply save in the subset of cases where the social worker does consider the individual to be obviously an adult even if not obviously over 25.
- The SSHD makes the point that the Guidance does not mandate the absence of an appropriate adult, nor the lack of a ‘minded to’ process, even if both were absent in the present cases. Moreover, the Guidance requires the social workers to comply with the applicable age assessment case law and policy guidance. However, the Guidance also makes express reference to the report form, which by the use of yes/no tick boxes would seem to direct the social workers that both are optional features of the process. Further, the ‘short form’ nature of the process virtually precludes any effective ‘minded to’ process. (By way of illustration, HT was told by the social workers that “An appropriate adult is not present during this short age assessment interview. The interview is usually about an hour in length”.) On that basis, and to that extent, the Guidance in my view sanctions or approves a process which is not in accordance with the law.
- Further, I consider that any prolongation of detention for the purpose of an assessment which is in practice not designed to comply with Merton principles (i.e. if the SSHD’s general practice is not to provide for an appropriate adult or to direct social workers to provide a ‘minded to’ opportunity) is unlawful, even if such non-compliance is not positively mandated by the Guidance. I use the word ‘if’ in the preceding sentence because (for the reasons indicated in section (E) below) I concluded that it was unfair for the Claimants at a late stage to advance evidence purporting to show a consistent practice in this regard, and it therefore seems to me that any conclusion I reach on this aspect of the matter can only be contingent.
The Court held that the assessments carried out in these cases were not lawful and thus the detention of the two individuals was not lawful. They do say that there would be some cases where the physical appearance of the individual was ‘very obviously’ an adult, but that unless that is the case a Merton assessment is going to be required. The Court does not explicitly say that 25 is the anchoring point, but clearly an age assessment that settles on 20 or 21 is going to be at risk of challenge as a short assessment and not a Merton assessment.
It would be nice if the Government would use their powers to give proper guidance on Age assessments, and nicer still if they would provide proper funding for those Local Authorities who by accident of geography find that the pressures on them to conduct such age assessments have increased exponentially and show no sign of ceasing.