“Obvious Age” Decisions: Sufficiency of Brief Reasons after Duy Bach Tai (FE/LA) for Judicial Review [2025] CSOH 60

1. Introduction

The Outer House of the Scottish Court of Session, per Lord Lake, has delivered an important ruling in Duy Bach Tai (FE/LA) for Judicial Review ([2025] CSOH 60) concerning the legality of brief, appearance-based age assessments carried out by local authorities on asylum seekers who claim to be children.

The petitioner, Mr Duy Bach Tai, arrived in the United Kingdom seeking asylum. Claiming to be 16 (date of birth 15 May 2007), he asked Glasgow City Council (“the respondent”) for accommodation under s 25(1) of the Children (Scotland) Act 1995. Two social workers performed a short “visual” age assessment. Relying on Mr Tai’s “appearance and demeanour”, they concluded he was “significantly over 18” and refused to treat him as a child.

In this judicial review, Mr Tai argued the decision was unlawful because:

• the reasons for rejection were inadequate; and
• relevant matters—e.g. his history of child labour, trauma and kidnapping—were ignored or irrationally evaluated.

Lord Lake rejected these challenges and refused the petition. The judgment clarifies how “obvious age” cases may lawfully be decided with minimal reasoning, provided core procedural fairness is observed.

2. Summary of the Judgment

Lord Lake held that:

• The respondent’s reliance on appearance and demeanour alone was permissible under R (B) v Merton LBC (“Merton”) where the individual “is very obviously under or over 18”.
• The letter of 28 March 2024, though brief, met the Wordie adequacy test: it identified the decision (Mr Tai is over 18) and the major reasons (appearance and demeanour).
• An administrative decision-maker need not “over-lawyer” its letter nor rebut every point raised by the applicant.
• No irrationality was shown; nor was there any failure to make obvious inquiries.
• Accordingly, the petition was refused and Mr Tai’s pleas-in-law were repelled.

3. Analysis

3.1 Precedents Cited

1. R (B) v Merton LBC [2003] 4 All ER 280
   Established guidance for age assessments. Lord Lake distilled five propositions, the most salient being that appearance alone can suffice when age is obvious.
2. Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345
   Classic Scottish test on adequacy of reasons: the informed reader must understand what was decided, why, and the view taken on the principal issues.
3. HLW, Petitioner [2012] CSOH 159
   Quoted for the proposition that what amounts to adequate reasons depends on the decision’s context and importance.
4. PW v KM [2024] CSOH 85 (Lady Poole)
   Highlighted the effect of trauma on memory; invoked by the petitioner to argue for deeper reasoning.
5. R v Birmingham CC ex p B [1999] ELR 305
   Cited for insufficiency of reasons where the “crucial question” is not addressed; distinguished by Lord Lake.
6. Secretary of State for Education v Tameside MBC [1977] AC 1014
   Authority on failure to make obvious inquiries; held inapplicable on these facts.

3.2 Legal Reasoning

Lord Lake’s reasoning can be distilled into four consecutive steps:

1. Characterise the decision
   Age assessment letters are administrative communications, not judgments by lawyers. Over-legalisation should be avoided (Merton).
2. Identify the “major issues”
   The sole crucial issue was the petitioner’s age. Appearance & demeanour were determinative. Ancillary topics (child labour, trauma) were not “major” because, in an “obvious” case, they could not displace visual certainty.
3. Apply the Wordie test
   The letter conveyed to an informed reader (i) the decision (over 18) and (ii) the reason (physical looks and demeanour). “Why” sub-questions (shoulders? facial hair? etc.) would lead to an infinite regress of detail—unnecessary at this stage.
4. Reject irrationality & inquiry grounds
   Given the visual certainty, no further questions were required; nor was reliance on vague answers per se irrational. The petitioner’s trauma arguments did not render the outcome Wednesbury unreasonable.

3.3 Likely Impact

The decision has several practical and doctrinal implications:

• Re-emphasises “Merton flexibility”: Local authorities can forgo full assessments when age is “very obvious”, provided they record that view and give short reasons.
• Sets a Scottish benchmark for reasons: Under Tai, a two-sentence explanation (“appearance and demeanour”) will ordinarily pass the Wordie adequacy test for obvious age rejections.
• Limits litigation over minute reasoning: Petitioners seeking review must now show something beyond brevity—e.g. fundamental misunderstanding or perversity—to succeed.
• Cross-border relevance: While English courts also apply Merton, Tai offers persuasive authority on the sufficiency of minimal rationales in devolved or local administrative decisions.
• Potential policy ramifications: NGOs may press for legislative or guidance-based safeguards, such as mandatory fuller assessments where any trauma is alleged, to counterbalance the court’s deferential stance.

4. Complex Concepts Simplified

• Judicial Review: A court process where judges examine the lawfulness—not the merits—of decisions made by public bodies.
• Age Assessment: Evaluation by social workers to decide whether an asylum seeker is under 18; critical for access to child-specific support.
• Wednesbury Unreasonableness: A decision is unlawful if so irrational that no reasonable authority could have reached it (Associated Provincial Picture Houses v Wednesbury Corp, 1948).
• Wordie Adequacy Test: Decision-makers must provide reasons sufficient for an informed reader to understand the outcome and core reasoning.
• Appearance & Demeanour: Visual cues—physical build, facial features, behaviour—used by social workers to form an immediate view on age.
• “Obvious Age” Cases: Scenarios where the person looks clearly over (or under) 18, permitting a truncated assessment process.

5. Conclusion

Duy Bach Tai (FE/LA) crystallises an important pragmatic rule: in “obvious age” circumstances, social-work assessors may lawfully give succinct reasons grounded solely on appearance and demeanour. The Outer House reaffirmed both Merton flexibility and Wordie’s proportionality in reason-giving. Going forward, challenges to age assessments in Scotland will have to target substantive irrationality or procedural unfairness beyond mere brevity of explanation. Conversely, the decision underscores the need for careful record-keeping: social workers should still retain detailed notes—even if their public letters remain short—to withstand scrutiny. The judgment thus strikes a balance between administrative efficiency and the minimal fairness owed to asylum seekers contesting adulthood determinations.