FZ, R (on the application of) v London Borough of Croydon

Factual and Procedural Background

The Appellant is an unaccompanied asylum seeker from Country A who claims to have been born on 28th December 1993, thus asserting he is 17 years old. Upon arrival in the country in August 2009, his claimed date of birth was accepted by the immigration authorities and he was referred to the Defendant local authority for child welfare services. The Defendant disputed the Appellant's age and conducted an initial age assessment and a subsequent review, concluding that the Appellant was two years older than claimed, born in 1991 and therefore 19 years old. The Appellant has recognized mental health difficulties linked to post-traumatic stress disorder.

The initial age assessment was conducted by two trained social workers who interviewed the Appellant and concluded, based on his appearance, demeanour, inability to produce documents, and inconsistencies in his account, that he was older than he claimed. A vaccination card produced by the Appellant was reviewed during a later assessment but was not accepted as proof of age by the Defendant due to concerns over its authenticity and lack of identifying features. A further review based on a supplementary medical report did not alter the Defendant’s conclusion.

The Appellant sought judicial review challenging the Defendant's age assessment on grounds including procedural unfairness and factual inaccuracy. Permission to bring judicial review was refused by a deputy High Court Judge, who found no realistic prospect of the Appellant succeeding at a substantive hearing. The Appellant appealed that decision.

Legal Issues Presented

1. Whether the local authority is obliged to give the person whose age is being assessed an opportunity to respond to provisional adverse findings.
2. Whether fairness requires the local authority to offer the young person the opportunity to have an appropriate adult present at any age assessment interview.
3. How the court should approach the question of whether the factual issue of the young person's age is arguable at the permission stage—whether it should start by assessing the claimant's positive case or first examine the integrity of the local authority's assessment.

Arguments of the Parties

Appellant's Arguments

• The Appellant should have been given a fair opportunity to respond to provisional adverse findings during the age assessment process, consistent with principles of fairness recognized in prior case law.
• The absence of an appropriate adult during the initial assessment interview was unfair, especially given the Appellant’s claimed age and mental health difficulties.
• The court should apply a liberal test at the permission stage for judicial review in age assessment cases, granting permission where there is some material supporting the claimant's case and no presumption that the local authority’s decision is correct.
• The local authority’s rejection of the vaccination card as evidence was not sufficiently justified, and the Appellant’s factual account was consistent and capable of supporting his claimed age.

Defendant's Arguments

• The local authority conducted a proper age assessment in compliance with established standards (Merton compliant process).
• The procedural failures alleged by the Appellant did not render the process unfair or undermine the assessment’s validity.
• The court should give due weight to the local authority’s assessment and only grant permission if there is a realistic prospect that the claimant is younger than assessed.
• The vaccination card was not accepted as proof due to lack of identifying features, and the local authority was entitled to disbelieve the Appellant’s claimed age.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the complex nature of age assessments for unaccompanied asylum seekers and the importance of a fair process as established in Merton. It recognized that the ultimate determination of age is a factual question for the courts, often requiring evidential hearings beyond the initial local authority assessment.

The court considered the test for granting permission for judicial review in age disputes, endorsing the approach that permission should be granted unless the claimant's case, taken at its highest, could not properly succeed in a contested hearing. The court analogised this to the criminal and defamation law principles where judges may withdraw weak factual issues from the jury.

Regarding procedural fairness, the court held that the Appellant should have been given a fair opportunity to respond to provisional adverse findings during the assessment process. The court found that the procedure in the present case did not meet this standard, as the Appellant was not given an opportunity to address the adverse points before the conclusions were presented to him. This procedural deficiency was not cured by subsequent reviews.

On the question of an appropriate adult, the court found that fairness required the Appellant to have been offered the opportunity to have an appropriate adult present during the initial interview, especially given his claimed age and mental health issues. The failure to do so contributed to the court’s decision to grant permission.

Substantively, the court found that the Appellant’s factual case was not so weak as to be incapable of success. The vaccination card was not obviously forged, and the Appellant’s account was reasonably consistent and capable of explanation. The court emphasized that credibility assessments made by social workers do not bind the court at the permission stage, where the question is whether there is a properly arguable factual case.

Finally, the court noted that the Administrative Court is not well-equipped for extensive factual hearings and highlighted the power to transfer such cases to the Upper Tribunal, which has greater expertise and jurisdiction to handle these matters.

Holding and Implications

The court ALLOWED THE APPEAL and granted permission to bring judicial review proceedings to determine the Appellant's age.

The court ordered the transfer of the claim to the Upper Tribunal, which is better suited to conduct factual determinations in age disputes involving unaccompanied asylum seekers. This decision ensures that the Appellant will receive a fair hearing with appropriate procedural safeguards, including the opportunity to respond to adverse findings and to have an appropriate adult present.

No new precedent was set beyond clarifying procedural fairness requirements and confirming the approach to permission in age assessment judicial reviews. The ruling reinforces the necessity of fairness in local authority assessments and the court’s role in ensuring that factual disputes about age are properly adjudicated.