Darfuri 17-year-old child successful in establishing his age in the Upper Tribunal after two local authorities unlawfully assessed him to be an adult
The Upper Tribunal (Immigration and Asylum Chamber) yesterday handed down judgment in the case of R (ARIA) v London Borough of Hounslow (JR-2024-LON-000862) allowing ARIA’s claim for judicial review and declaring him to be a child of 17 years of age. The judgment follows lengthy proceedings during which ARIA was denied statutory care under s.20 of the Children Act 1989 for a period of over 15 months. The effect of the Tribunal’s judgment is that Hounslow is required to treat ARIA as a child in need and have agreed to exercise discretion to provide ARIA with leaving care support upon him turning 18.
ARIA is a young asylum seeker from Darfur, Sudan. He arrived in the UK by boat on 20 July 2023 and informed the Home Office that he was a child aged 16 years old. His age was disputed by the Home Office and his date of birth recorded as 1 June 1998 for the purpose of his asylum claim, making him 25 years of age at that time. The decision was made by two immigration officers but with an unnamed social worker also recorded as present and contributing to the decision.
As a consequence of the Home Office’s decision, ARIA was placed in an adult asylum-support hotel in Hounslow’s area. He was referred to Hounslow as a child in need by the Refugee Council. In a short meeting, in respect of which Hounslow retained no contemporaneous record of but estimated took around 1 hour, two social workers employed disputed ARIA’s age and deemed his “appearance and demeanour overwhelmingly suggest that you are an adult”. Hounslow also relied upon the Home Office having assessed ARIA to be an adult noting that an “experienced social worker” had determined him to be an adult on arrival. One of the assessing social workers accepted in oral evidence that she had no knowledge of the identity or experience of the social worker present despite the reliance upon this in support of the Home Office’s decision.
ARIA was denied statutory care under the Children Act 1989 as a consequence of Hounslow’s decision and was dispersed to Aberdeen under adult asylum support provisions. ARIA was further referred to Aberdeenshire Council as a child in need but Aberdeenshire made a decision in similar terms to that made by Hounslow, determining ARIA’s physical appearance and demeanour suggested he was significantly over 18 and denying him statutory care.
Proceedings were issued in the Administrative Court seeking declaratory relief that ARIA was a child and entitled to support and accommodation under the Children Act. Hounslow initially sought to defend the claim by asserting firstly, that the age assessment it had conducted was not one that required any procedural safeguards and that it was lawfully entitled to dispute ARIA’s age on the basis of appearance and demeanour alone. Secondly, Hounslow argued that Aberdeenshire Council was the local authority responsible for ARIA given he was in Aberdeenshire’s geographical area, arguing that permission should be refused on that basis alone. Both of those lines of defence were rejected and permission for judicial review was granted.
Following a hearing last week before UTJ Frances and UTJ O’Brien, the panel accepted ARIA’s claimed age and that he was a child, presently 17 years old and born on 01.01.2007. The Tribunal found ARIA’s account to be consistent as to his knowledge of age and consistent with the experience of Sudanese children more generally. The Tribunal found that identified inconsistencies in ARIA’s account were “explicable and understandable” [§30] taking account this history, background and traumatic experiences. The Tribunal placed weight on the evidence of ARIA’s litigation friend of the Refugee Council who provided written statements and oral evidence in support of ARIA’s age, focusing on his relationships with other young people accepted to be children, and his high level of dependence on adults.
The Tribunal gave “significant weight” to an independent age assessment report conducted by social workers from Immigration Social Work Services (ISWS), noting the high level of experience of the assessing social workers and that it was the only Merton compliant assessment before the Tribunal [§33]. Hounslow had consented to the admission of the ISW age assessment into evidence but contended that the fact that the applicant had instructed independent social workers to conduct an age assessment in support of his case as “very unusual”. The Tribunal ultimately found the ISWS age assessment to highly probative in support of ARIA’s age and rejected the brief decisions made by both Hounslow and Aberdeenshire Council disputing age on the basis of the unreliability of appearance and demeanour.
The Tribunal’s decision brings to an end protracted proceedings during which time ARIA was denied section 20 CA 1989 support and accommodation as well as education and age-appropriate healthcare.
ARIA was represented by Antonia Benfield throughout the claim, instructed by Basmah Sahib and Javaria Ahmed of Bindmans LLP. ARIA was supported by Erinç Argün Kayım of the Refugee Council as his litigation friend.
