B, R (on the application of) v London Borough of Merton

Factual and Procedural Background

The Plaintiff is an asylum-seeker claiming to be 17 years old and without means of support in the country. Under the Nationality, Immigration and Asylum Act 2002, the Secretary of State for the Home Department has no duty to support those under 18, but under the Children Act 1989, a local authority owes a duty to provide accommodation to children in need under section 20. On 13 February 2003, the Defendant determined that the Plaintiff was at least 18 years old, thus not a child and not owed a duty under the Children Act. The Plaintiff sought judicial review of this age determination.

The Plaintiff arrived in the United Kingdom from Senegal in February 2003 and applied for asylum. The National Asylum Support Service decided he was not a minor and refused support. The Defendant borough conducted an assessment on 13 February 2003 through a social worker, who interviewed the Plaintiff with the assistance of a telephone interpreter. The social worker completed a pro-forma assessment and concluded the Plaintiff was not a child in need, adopting the Home Office's stance.

The Plaintiff challenged the adequacy and fairness of the assessment, alleging procedural unfairness and that the Defendant merely adopted the Home Office's conclusion without independent determination. The Defendant contended the assessment was rational, adequate, and lawful. The court was also asked to provide guidance on lawful local authority age assessments for young asylum seekers.

Legal Issues Presented

1. Whether the Defendant's determination that the Plaintiff was not a child under 18 years was lawful and procedurally fair.
2. What are the requirements for a lawful age assessment by a local authority of an asylum seeker claiming to be under 18.
3. Whether the Defendant was required to conduct an independent age assessment rather than adopt the Home Office's conclusion.
4. Whether the Plaintiff was entitled to adequate reasons for the decision and an opportunity to respond to adverse findings affecting credibility.
5. The extent to which medical evidence or prolonged observation is required in age assessments of asylum seekers.

Arguments of the Parties

Plaintiff's Arguments

• The inquiries by the Defendant were inadequate, relying improperly on appearance without arranging medical examination.
• There was procedural unfairness in not providing an adequate opportunity to address adverse credibility points.
• The Defendant did not make its own age determination but merely adopted the Home Office's conclusion.

Defendant's Arguments

• The assessment process was rational, adequate, and lawful.
• The decision was a reasonable factual determination and not subject to challenge.
• The availability of internal complaints and review procedures provided a suitable alternative remedy to judicial review.
• The Defendant opposed the Plaintiff's claim for costs, suggesting a partial costs order due to the case being a test case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Walworth v Balmer [1966] 1 WLR 16	Magistrate's ability to determine age based on appearance when the youth is obvious and due process is observed.	Distinguished as inapplicable because the Plaintiff's age was disputed and the Defendant had an obligation to assess independently.
Nash v Chelsea College of Art & Design [2001] EWHC Admin 538	Principles on admitting subsequent reasons for administrative decisions and the importance of contemporaneous reasoning.	Applied to admit the Defendant's later evidence explaining the true basis for the age determination decision.
R (Ashworth Mental Hospital) v Mental Health Review Tribunal [2001] EWHC Admin 901	Clarification that subsequent reasons elucidating contemporaneous reasons may be admitted.	Supported the admission of Defendant's explanations as clarifying the original decision.
R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302	Acceptance of reasons given during correspondence as part of the decision-making process.	Referenced to support the approach to reasons given after the decision but related to it.
(R) Q v Secretary of State for the Home Department [2003] EWHC 195 (Admin) and [2003] EWCA Civ 364	Duty to give reasons for decisions adverse to asylum seekers and procedural fairness.	Used to establish the Defendant's duty to provide adequate reasons to the Plaintiff for refusal of support as a child.

Court's Reasoning and Analysis

The court acknowledged the inherent difficulty in assessing the age of asylum seekers without reliable documentary evidence or definitive medical tests, especially in borderline cases near age 18. It emphasized that age determination is an inexact science requiring consideration of the claimant's history, appearance, behaviour, and credibility. The court rejected the notion of imposing a strict onus of proof on the claimant and held that the local authority must make its own independent assessment rather than simply adopting the Home Office's stance.

The assessment conducted by the Defendant's social worker involved taking a detailed history and considering physical appearance and behaviour. However, the court found procedural deficiencies, particularly the failure to give the Plaintiff an opportunity to respond to adverse credibility findings and the use of a telephone interpreter, which risked misunderstandings. The lack of a verbatim record of the interview was noted as a limitation, though not a legal requirement.

The court accepted the Defendant's later explanation of reasons for the decision, finding them consistent with the original letter and adequate in substance. Nonetheless, it held the reasons initially provided were insufficient for the Plaintiff to understand the basis of the decision and to challenge it effectively.

The court also considered but rejected the necessity of medical examination or prolonged observation in every case, recognizing that such measures may not be helpful or feasible. Instead, it stressed the importance of a fair process, adequate inquiry, and clarity in reasons.

Finally, the court found no suitable alternative remedy was available to the Plaintiff within a reasonable timeframe, as internal complaints and review procedures were not shown to be adequate or accessible in the circumstances.

Holding and Implications

The court held that the Defendant's decision determining the Plaintiff to be over 18 was unlawful and procedurally unfair and therefore must be set aside.

The Defendant is ordered to reconsider the Plaintiff's age with the information currently available, conducting an independent and fair assessment in accordance with the principles outlined by the court. The Plaintiff is entitled to receive adequate reasons for any adverse decision and to be given an opportunity to respond to matters affecting credibility.

The decision does not establish new precedent but clarifies the minimum procedural standards and duties local authorities must observe when assessing the age of unaccompanied asylum-seeking children. The court awarded costs to the Plaintiff, rejecting arguments that the test case nature justified a different order on costs.