Local Authority Age Assessments Under Nationality and Borders Act 2022 s50: No Declarator of Age in Judicial Review; Brief Enquiry Can Be the Statutory Age Assessment

1. Introduction

Petition of Qan for Judicial Review [2026] CSOH 49 is an Outer House decision of the Scottish Court of Session (Lady Ross) addressing the legal character of a local authority’s “brief enquiry” into age and, crucially, what remedies are competent in judicial review when age is disputed.

The petitioner, an asylum seeker who claimed to be a child, sought support from the respondent local authority under section 25(1) of the Children (Scotland) Act 1995 (duty to provide accommodation to certain children). The local authority conducted a short interview process culminating in a written “Brief Enquiry Decision” concluding the petitioner was not under 18 and that no full age assessment was required.

The petition sought (i) declarator of a specific date of birth (and thus minority), (ii) reduction of the Brief Enquiry Decision, and (iii) an order for specific performance of the section 25(1) duty. The central controversy became one of competency and scope: whether the court could itself determine age as a “precedent fact” and grant declarator, or whether the court’s role was confined to supervisory review of the legality of the local authority’s decision-making.

2. Summary of the Judgment

  • The local authority’s “Brief Enquiry” was held to be an age assessment under section 50 of the Nationality and Borders Act 2022, not merely a preliminary step under section 49.
  • The court held it was not competent in this judicial review to grant declarator of the petitioner’s date of birth (or to substitute its own assessment of age on the merits).
  • Applying West v Secretary of State for Scotland 1992 SC 385, the assessment of age under section 50(3)(b) was a statutory function entrusted to the local authority; the court’s role is supervisory, not merits-based.
  • The challenge that the authority applied the wrong legal test failed. Although the decision did not expressly state “clear and obvious” or “balance of probabilities”, the court found it implicit that the authority considered no full assessment was required and gave adequate reasons.
  • The petition was refused.

3. Analysis

3.1 Statutory Framework and the Court’s Core Move

The judgment turns on reading the Children (Scotland) Act 1995 and the Nationality and Borders Act 2022 together:

  • 1995 Act, section 25(1): a local authority must provide accommodation for a child in specified circumstances. A “child” is a person under 18 (section 93(2)).
  • 2022 Act, sections 49–50: defines an “age-disputed person” (section 49(1)) and provides a mechanism for an age assessment. Under section 50(3), where age must be known for children’s functions, the authority must either (a) refer to the NAAB, (b) conduct its own assessment, or (c) notify it is satisfied of claimed age without an assessment.

Lady Ross treated the petitioner as plainly within section 49(1) (insufficient evidence to be sure of age) and held that what the authority did was necessarily part of section 50: the authority could not decide section 25 duties without first undertaking an age assessment. The attempt to re-label the exercise as merely “section 49 brief enquiry” was rejected as an unnatural two-stage construction of the statute.

3.2 The New (Scottish) Position on Competency: No Declarator of Age via Judicial Review

The petitioner’s litigation strategy depended on the court treating age as an objective precedent fact to be found by the court, enabling declarator of a date of birth. Lady Ross held that the coming into force of section 50 of the 2022 Act means “matters have moved on” from earlier Scottish debates about route and competency.

The key holding is structural: Parliament has now allocated age determination, in this context, to the local authority (or NAAB), not to the court at first instance. Accordingly, the supervisory court cannot substitute its own factual conclusion as to age and cannot competently grant declarator of age/date of birth in this judicial review.

Lady Ross also highlighted a practical consequence undermining the proposed declarator: even if a court merely declared “child/not child” at a point in time, that would be insufficient for ongoing statutory duties. A local authority needs a date of birth to know when duties change/terminate—making a partial finding both legally and operationally unsatisfactory.

3.3 Precedents Cited and How They Were Used

(a) West v Secretary of State for Scotland 1992 SC 385

West supplied the controlling Scottish administrative law principle: in supervisory jurisdiction, the court does not review the merits of a decision entrusted by statute to a decision-maker, but ensures the decision-maker acts within the limits of its powers and according to law.

Lady Ross rejected the petitioner’s attempt to argue that the local authority was not “entrusted” with age determination because its decision is not universally binding. Even if the decision does not bind the Secretary of State for immigration purposes, it is binding on the authority for the statutory purpose for which it is made—deciding children’s functions such as accommodation. The existence of an alternative route (NAAB referral) does not dilute the entrustment when the authority opts for section 50(3)(b).

(b) R (A) v Croydon LBC [2009] 1 WLR 2557

The petitioner relied on R (A) to frame age as an objective fact for the court, quoting Lord Hope’s “precedent fact” language. Lady Ross treated the case as overtaken in its statutory setting: whatever the position under the scheme considered in R (A), the current UK scheme includes Nationality and Borders Act 2022, section 50, which (in this context) demonstrates parliamentary intention that age be determined through the statutory mechanism by the authority/NAAB.

(c) R (B) v Merton LBC [2003] 4 All ER 280

Merton was used in two ways:

  • To recognise that where it is very obvious someone is over 18, no prolonged inquiry is required—supporting the legitimacy of a brief process in the right case.
  • To anchor the petitioner’s “clear and obvious” argument: that only if adulthood is obvious may a local authority avoid a full assessment.

Lady Ross accepted the relevance of the “clear and obvious” idea, but fitted it into the statutory standard in section 50(6) (balance of probabilities) as part of a fair sequencing of steps (see below).

(d) R (HAM) v Brent LBC [2022] EWHC 1924 (Admin) and SB [2022] EWHC 308 (Admin)

These authorities supported the proposition that the depth of enquiry is not binary (“full Merton” versus “short-form”); rather, it should be flexible and proportionate to the circumstances. Lady Ross adopted that approach to interpret how a section 50 assessment may be “brief” yet still be a section 50 assessment.

(e) Scottish cases on route/competency and the developing landscape: Abdullah v Aberdeenshire Council [2024] CSOH 8; 2024 SLT 143, Ahmat v Aberdeenshire Council [2025] CSOH 15; 2025 SLT 735, AN [2025] CSOH 89; 2025 SLT 1322, and Ibrahimi v Glasgow City Council [2026] CSIH 4

The case was litigated against a backdrop of Scottish procedural uncertainty in earlier authorities. Lady Ross held that section 50’s commencement changes the landscape since Abdullah, and treated Ibrahimi (Inner House) as confirming the “very obvious” principle in the Scottish context, expressly citing its reference to Merton.

While Ahmat and AN featured as examples of cases proceeding by action for declarator, Lady Ross’s reasoning in Qan is that—within the current statutory scheme—judicial review does not become a vehicle for the court to make a free-standing merits determination of age.

(f) Napier v Scottish Ministers 2005 1 SC 229 and Crocket v Tantallon Golf Club 2005 SLT 663

The respondent accepted that courts may sometimes determine “precedent facts” (illustrated by Napier in an ECHR context), but argued it was not engaged here. Crocket was used to address (and reject) an analogy based on decisions being “binding”: the internal binding nature of club decisions did not assist with statutory entrustment under section 50.

(g) R (on the application of UYR) v Derby City Council [2025] EWCA Civ 1648

The petitioner invoked UYR to suggest continuity in English approach. Lady Ross distinguished it as an interim relief case with no engagement with the 2022 Act provisions, and therefore of limited assistance on the statutory issues central to Qan.

3.4 Legal Reasoning: “Brief Enquiry” as Section 50 Assessment, and Fair Sequencing of Tests

A substantial part of the reasoning concerns classification: the “brief enquiry” was not a pre-assessment; it was the assessment, conducted under section 50(3)(b). On that footing, the court then applied West to confine its role to legality review.

On the alleged legal error (wrong test), Lady Ross analysed the relationship between:

  • Section 50(6): the statutory standard of proof is the balance of probabilities; and
  • The “clear and obvious” concept (from Merton and endorsed in Ibrahimi) as a fairness-guiding principle about whether a brief process suffices or whether a fuller assessment is required.

The judgment adopts a “sequenced” approach: the ultimate conclusion is on the balance of probabilities, but fairness ordinarily requires a full assessment unless the brief enquiry yields a clear and obvious answer. Importantly, Lady Ross did not require formulaic language; she held that, on the face of the Brief Enquiry Decision (including recorded observations and credibility concerns), it was reasonable to infer that the authority had concluded no full assessment was needed because the petitioner’s adulthood was clear.

The reasons were held to meet the adequacy threshold, even if more expansive reasoning would have been preferable. Any failure to use explicit “clear and obvious” wording was not material.

3.5 Impact

The decision is likely to be cited for four propositions in Scottish age-dispute litigation:

  1. Statutory classification: a local authority’s brief process can be the section 50 age assessment; “brief” and “full” describe depth, not legal basis.
  2. Remedial limits in judicial review: where the authority acts under section 50(3)(b), the court’s role is supervisory; declarator of a date of birth is not a competent remedy in that JR.
  3. Entrustment and non-binding effects: the fact that a local authority’s section 50 decision may not bind the Secretary of State for immigration purposes does not mean the authority was not entrusted with decision-making for children’s functions.
  4. Fairness and articulation: explicit recitation of “clear and obvious” is not mandatory, but authorities should expect scrutiny of whether reasons and recorded material support the conclusion that no full assessment was required.

Practically, Qan encourages challengers to focus on orthodox public law grounds—procedural fairness, reasonableness, failure to take relevant considerations into account—rather than attempting to convert JR into a fact-finding forum for fixing a date of birth.

4. Complex Concepts Simplified

Judicial review (supervisory jurisdiction)
A court checks whether a public body acted lawfully (within powers, fair procedure, rationality, adequate reasons where required). It does not usually replace the public body’s decision with its own.
Reduction
The Scottish public law remedy setting aside an unlawful decision.
Declarator (declaratory judgment)
A court declaration stating what the law is or what legal status/rights are (here, a declaration of a date of birth/age). The case holds this is not competent in this JR context.
Precedent fact
A fact that must objectively exist before a public power can lawfully be exercised; sometimes courts decide the fact for themselves. Lady Ross held it did not apply here because the statute entrusts age assessment to the authority/NAAB mechanism.
“Clear and obvious” vs “balance of probabilities”
“Balance of probabilities” is the statutory proof standard in section 50(6). “Clear and obvious” is used as a practical/fairness guide: if it is not clear and obvious, fairness may require a fuller inquiry before reaching a balance-of-probabilities conclusion.

5. Conclusion

Petition of Qan for Judicial Review [2026] CSOH 49 confirms that, under the post-2022 statutory regime, a Scottish local authority’s brief enquiry may constitute the section 50 age assessment, and that the Court of Session—when exercising supervisory jurisdiction—will not determine age as a merits question or grant declarator of a date of birth. The court will instead confine itself to legality review under West v Secretary of State for Scotland 1992 SC 385, and will only intervene where there is a material public law error.