11 July 2017

[2017] EWHC 1723 (Admin)

Elizabeth Laing J

The Facts

LBC has the one of the largest, if not the largest, number of Unaccompanied Asylum Seeking Children (UASCs) in the UK. Of these a minority are age-disputed and LBC therefore has to conduct age assessments. LBC’s practice has been to accommodate and provide the age-disputed young person with services until it has concluded its age assessment. It carries out an age assessment by means of an interview(s), a minded-to meeting and an outcome meeting. At the latter meeting the age disputed young person is told the outcome of LBC’s assessment. If the young person has been found by LBC to be an adult as at the date of the outcome meeting then LBC immediately terminates the provision of services including accommodation and refers the young person to the Refugee Council, which makes arrangements for the young person to be accommodated by the Home Office. LBC ensures that the young person will not be homeless and will accommodate briefly (usually for less than 24 hours) to ensure that Home Office accommodation will be offered. Home Office accommodation may mean that the young person is dispersed to another part of the country fairly quickly.

If the young person wishes to challenge the age assessment he has to then obtain legal advice and, if appropriate, see an interim injunction. Sometimes the interim relief is applied for after the young person has been dispersed.

The 2 applicants in these cases that were heard together were from Afghanistan and Vietnam respectively. There was nothing remarkable about the facts of either case. Both raised factual issues that are to be tried by the Upper Tribunal, however, Popplewell J ordered that a ‘rolled up’ hearing to consider the challenge to LBC’s practice.

The Challenge

KA & NBV argued that it was unlawful for LBC to terminate services immediately. Instead, it was argued, there should have been a 7 day (or some other period) standstill while a young person sought legal advice and also had time to say goodbye to friends and classmates.

The challenge was put on 2 grounds: (a) that LBC’s practice was unlawful at common law because the young person was denied effective access to justice, and (b) there had been an interference with the young person’s Article 8 rights. In support of the first argument it was said that effective access to justice meant that it should be possible to apply for interim relief as soon as possible and that the status quo ante should be preserved in fact until such an application had been made. It was argued that dispersal inevitably mean delay in making an application for interim relief which prejudiced the young person. As for the second argument based on the European Convention on Human Rights it was accepted that the ending of services was a lawful purpose but that it amounted to a disproportionate interference because of the denial of effective access to justice and the inevitable disruption of the young person’s private life.

The Judgment

Elizabeth Laing J dismissed the application on both grounds.

First, she held that access to justice in the context of an age assessment had 2 facets: (i) the ability to challenge the decision by invoking the supervisory jurisdiction of the Court, and (ii) the ability to seek interim relief in an appropriate case. She found that these rights were present in both cases and would generally be present in cases involving age assessments carried out by LBC. Indeed there was evidence before of 14 other cases involving LBC in which applications for interim relief had been made (although not always successfully). The judge also accepted LBC’s argument that the status quo ante meant the status quo before the impugned age assessment decision not the status quo before the application for interim relief.

Secondly, the judge held that Article 8 was not engaged. She followed the case of A v LB Croydon [2008] EWCA Civ 1445 which held that a judgment regarding an age assessment was not a judgment in rem, and held that a decision of a local authority as to age was not itself a judgment in rem (or even a judgment at all), therefore article 8 was simply not engaged.

In case she was wrong on that point Elizabeth Laing J went on to conclude that any interference was proportionate and justified (as explained by the Supreme Court in Bank Mellat v H M Treasury [2013] UKSC 39) on account of the expense inevitably incurred by a local authority in continuing to accommodate and provide services to an adult and because of general safeguarding concerns caused by an adult being treated as a child.

In other words the effect of the decision is that a local authority can act upon an age assessment decision as soon as it has formally communicated the decision to the young person. It is right to say that the claimants are considering an appeal in this case.