OAM, R (on application of) v Sheffield City Council

On 27 September 2024 I heard three oral renewals of applications for permission to proceed with judicial review. The three applications were all made against Sheffield City Council, the Defendant, and sought judicial review, in substance to challenge and set aside age assessments made in relation to unaccompanied asylum seekers. In each case, the age assessment of the relevant asylum seeker concluded that they were over the age of 18 and not a child.

Oral submissions took the morning to hear and Counsel was not available in the afternoon. Accordingly in two cases I gave my decision with reasons to be given later (see [2024] EWHC 2669 (Admin) and [2024] EWHC 2670 (Admin)). The decision in each of the two cases was that permission to apply for judicial review should be refused, as should certain applications for interim relief. In the third case I reserved my judgment. This judgment is my reserved judgment on the third case. I delayed giving my decision in order to consider further the evidence regarding the use of the translator in this case and the emergence of the fact that the assessors had relied upon an inconsistency in date of birth given by the Claimant at various times.

Before me, the Claimant (as were the Claimants in the other two cases that I have mentioned) was represented by Ms Julian Norman of Counsel and Sheffield City Counsel was represented (as it was in the other two cases that I have mentioned) by Mr Brett Davies of Counsel. I am grateful to both of them for their assistance, the helpful and measured manner in which they conducted the hearing and the way in which both of them drew my attention to material in a fair way to ensure that I was not misled by, for example, overlooking a particular document contrary or potentially contrary to one or to facts that they had earlier referred to.

As Fordham J has helpfully articulated and summarised in R (on the application of Pishtian Karimi) v Sheffield City Council [2024] EWHC 93 (Admin), there are often two elements to challenges to an age assessment, one challenge (or series of challenges) based on traditional judicial review grounds and one related to the factual issue of the age of the person in question, that ultimately being a question for the court:

“[2] Age assessments are unusual in the sense that, alongside any conventional public law ‘soft review’ principles, there is an objective hard-edged factual question whose correctness is for the reviewing court (or usually the upper tribunal following transfer) to decide, embracing any fresh evidence and where appropriate with oral evidence. The judicial review permission threshold, so far as the objective question is concerned, is identified in R (FZ) v Croydon LBC [2011] EWCA Civ 59 at §9. The permission-stage Court asks whether the material before the court raises “a factual case which, taken at its highest, could not properly succeed in a contested factual hearing”. Only where the Court is satisfied on that negative question will there be the ‘knockout blow’ to justify refusing permission for judicial review.”

As regards the traditional, “soft review” principles, the test, both when permission is considered on the papers and when it is considered on an oral renewal hearing, is that:

“ the Judge will refuse permission unless satisfied that there is an arguable ground for judicial review which has a realistic prospect of success” (see The Administrative Court, Judicial Review Guide 2024 (“The Administrative Court Guide”), paragraphs 9.1.3 and 9.6.5 and the cases footnoted in the first of those paragraphs).

As regards typical “soft review” principles of judicial review in the context of this case I was referred particularly to the judgment of Swift J in R (on the application of HAM) v London Borough of Brent [2022] EWHC 1924 especially at [6], [10]-[13] and [40]-[41]; the judgment of HHJ Thornton QC (sitting as a Judge of the High Court) in AS v Croydon [2011] EWHC 2091 (Admin) at [9]-[10] (dealing with the duty to give reasons) and the judgment of Picken J in MVN v London Borough of Greenwich [2015] EWHC 1942.

The test for interim relief is dealt with at paragraphs 16.6.1 and 16.6.2 of the Administrative Court Guide.

In all I was referred to some 14 cases as well as various parts of certain Acts of Parliament and some guidance relating to age assessments and/or judicial review principles raised by the case.

I did not understand there to be a disagreement as to the relevant law and principles, rather the disagreement between the parties is as to how such law and principles apply on the facts (and evidence) in this case.

The Claimant is a national of Eritrea. His claimed date of birth is 20 May 2007. As at the end of September 2024 that would make him just over 17 years 4 months old.

He arrived in the United Kingdom on 3 September 2023. He applied for asylum the same day. Also on that day, the Home Office assessed him as an adult with an assessed date of birth of 20 May 1997. That would make him 10 years older than he claims to be and, as at the end of September 2024, just over 27 years 4 months old. The relevant Home Office Notification notes that Home Office members of staff had assessed that his physical appearance and demeanour very strongly suggest that he was significantly over 18 years of age.

In his witness statement he says that he was at this time allocated an Arabic interpreter as no Tigre interpreter was available and that he was unable to explain that he had been given the wrong date of birth. I note however that the relevant letter from the Home Office also refers to his having claimed that his date of birth was 20 July 2006.

After a night or two in Dover, followed by some days in London, he was moved to a hotel at Sheffield which is where he has been ever since.

The relevant age assessment in this case followed a referral by the Refugee Council to Sheffield Safeguarding Hub [and suggesting that the claimant was 16 years old and in need of social care intervention].

The age assessment took place on 30 August 2023 at the hotel where the claimant was lodged in Sheffield.

The age assessment in relation to the claimant was carried out by Chloe Elliott and Eric Banks for the Defendant. Each is a social worker employed by the Defendant.

Present by telephone for part of the interview was a Tigre interpreter. At some point the interpreter was changed to a Tigrinya interpreter. The Claimant says that he explained that he did not understand Tigrinya fully but that he could try. He says that he tried to answer to the best of his ability but that using a Tigrinya interpreter “caused some problems”.

In her witness statement, Ms Elliott explains the point at the interview at which the interpreter changed. She said that the Tigre interpreter was present for the majority of the interview and the Claimant confirmed that he could understand him. At the point at which the asking of questions had concluded, the Claimant left the room so that Ms Elliott and Mr Banks could discuss their views and reach a decision. When the Claimant returned, the decision and consequences were explained. However, the call with the interpreter unexpectedly dropped. It was not possible to connect with a Tigre interpreter due to lack of availability. A Tigrinya interpreter was used to explain the contents of the letter given to the Claimant (the “Decision Letter”), which I shall describe further below but which explained the outcome of the assessment and the Claimant’s right of appeal. The actual assessment and outcome had, she says, been shared with the Claimant prior to the change of interpreter. At the time of the change she says that it was confirmed with the Claimant that he could understand the interpreter. She says that he did not raise the point that he was unable fully to understand the Tigrinya interpreter. On this basis the Tigrinya interpreter was used only to explain/interpret the Decision Letter.

In his first witness statement, Mr Banks confirms what Ms Elliott says in her witness statement.

In a second witness statement, dated 23 September 2024, Mr Banks confirmed again the circumstances in which there came to be two interpreters. He confirmed the timing at which the first interpreter dropped off the call, namely after the outcome had been explained to the Claimant and part way through reading out the Decision Letter. He also said that the Claimant confirmed that he could understand the Tigrinya interpreter. He also stated his opinion that the Claimant could understand the Tigrinya interpreter because he was appropriately responding to questions asked in the Tigrinya language.

Despite the apparent conflict of evidence it seems to me that the evidence of Ms Elliott and Ms Banks clearly sets out detail which the Claimant does not in terms challenge and that his unspecific “difficulties” with the Tigrinya interpreter were not such as to have any substantive effect on the overall process.

There are two versions of the Decision Letter in evidence. One is largely typed but with certain parts completed in manuscript (e.g. the name and address of the Claimant, the names of the social workers and so on). The letter explains the taking place of the age assessment in response to the Claimant having raised that he was aged 16 and that he had given his date of birth as 20 May 2007, the purpose of the age assessment and the assessors’ conclusion that he was over the age of 18 and that accordingly the Local Authority had no duty towards him as a child.

The second version is a fully typed version with more or less the same information as the typed version completed in manuscript. It does go further though in referring to a telephone interpreter rather than a face to face interpreter.

I infer the first letter as the one handed over at the end of the interview and the later fully typed version was sent later,

The Claimant confirms in his witness statement that he was asked questions about how he knew his date of birth and about his journey to the UK. He says that he knows his date of birth, 20 May 2007, because he needed to know when he attended school. He says his father told him his date of birth and that he saw it being written down when he was registered for school. He says that he understands that he was around 6 years old when he started school and that he knows this because he spoke to his older sister about this recently when he was speaking to her about “his age problem”. Each year, he says, he would be told on a day that it was his birthday and he was a year older though his family did not celebrate birthdays,

The process for the brief enquiry is evidenced by a form headed “Brief Enquiry [As to Age]”. The form is signed and dated by the two social workers in question. The form commences by setting out certain guidance on making a provisional decision on age. It then sets out certain matters with room for the interviewers (as they did in this case) to fill in the details, such as “Name as stated by person presenting”, “Language spoken-Interpreter language requested” and so on. Under the heading “Physical appearance and presentation observations” the following is noted in manuscript:

“wounds on his face and around his mouth

Acne scarring

Muscular physique

Adult demeanour”

The age that he gave in the interview as his date of birth is given as 20 May 2007. The age/date of birth already stated to police/immigration is listed as 20 July 2006 with the comment “[Claimant] said this was recorded wrong”. In his witness statement he says that on arrival in the UK he was very tired and felt sick because of the smell of petrol from the boat that was used for his crossing. An Arab interpreter was brought and no Tigre interpreter was available. He does not speak Arabic so he was not able to tell them that they had given him the wrong date of birth. In context I take it that this is a reference to the date of birth that they wrote down as the one that he had given them rather than the date of birth allocated by Home Office officials.

One of the questions posed by the form is “Do you consider this person to be under the age of 18? With possible responses of “No/Yes/Not Sure (delete as appropriate).” In this case the “No” is circled. Under “Next Steps” the form goes on to say that “If yes or unsure full assessment required….” And “If no, ensure “Over 25 letter” has been issued and fully explained to the presenting adult….”

The claim form in this case was issued on 20 November 2023. By the claim form, the following final relief is sought:

“(i)

Pursuant to Ground 1, a Declaration that the Defendant's Brief

Enquiry procedures are procedurally unfair;

(ii)

In the alternative to (i) above, a Declaration that the

Defendant’s Brief Enquiry in this claim was procedurally unfair;

(iii)

A Quashing Order quashing the Defendant's decision to assess

the Claimant as being over 18 years old;

(iv)

A Mandatory Order directing the Defendant to conduct a full

Merton-compliant age assessment;

(v)

A Declaration that the Claimant's date of birth is 26^th November 2006

(vi)

further or other relief and

(vii)

costs”

In addition interim relief was claimed in Section 9 of the Claim Form as follows:

“(i)

An Anonymity Order to protect the Claimant's identity in light of

the dispute over his age, his vulnerabilities following his journey to

the UK and in light of his pending asylum claim, in which he has

raised a well-founded fear f the Eritrean authorities;

In addition, a separate application notice was issued seeking the same interim relief as referred to under paragraphs (i), (ii) and (iv) of Part 9 of the Claim Form and also (by way of interim relief) that the Defendant provide accommodation to the Claimant as a child under the Children Act 1989.

The Claimant’s evidence comprised a witness statement from him. By application notice dated 25 September 2024 the Claimant sought permission to adduce in evidence a letter from Caroline Norman of the Refugee Council dated 24 September 2024. That application was not opposed and allowed the letter into evidence.

That letter confirms her opinion of the ages of this Claimant (and another Claimant in one of the other sets of proceedings) and sets out something of her experience and qualifications to make that those assessments. Most importantly, she confirms that she has not undertaken formal age assessment training but she says that this does not negate her professional experience from working with young adults. She says that she has undertaken “internal Refugee Council age dispute training” and taken a number of courses on working with young refugees and on trafficking of young people. This letter is in effect supplemental to a letter from her dated 9 November 2023. This latter letter was in the original hearing bundle but not, I think, the renewal hearing bundle.

The letter dated 9 November 2023 asserts Ms Norman’s view that the claimant in this case is under the age of 18. In that respect she relied upon a number of factors including his physical appearance, that he prefers to sit close to her when she is at the hotel and other “safe” adults; that he lacks confidence and this is not normally seen in the adult men in the hotel; that the claimant had told others he hadn’t people to play with and would like some toys; that he lacks emotional maturity, alternating between sadness and acting in a “jokey” way; that he has repeatedly said that he is sad; and that the older men refer to him as, and treat him as, a child.

As well as filing an acknowledgement and summary grounds of defence, the Defendant filed four witness statements, one each from the two social workers that I have mentioned, one from Lisa Bushby, Service Manager with the Looked After Children Team of the Defendant and one from Gemma Exley, the hotel manager of the hotel where he is lodged in Sheffield. The witness statement of Lisa Bushby primarily deals with the practice and procedure followed by the Defendant when carrying out age assessments. The witness statement of Gemma Exley seeks to refute points the claimant makes about conditions at the hotel.

By application notice dated 24 September 2024, the Defendant sought permission to adduce a second witness statement of Mr Banks made on 23 September 2024. That witness statement dealt in slightly more detail with the circumstances in which and time at which there was a change of interpreters and also confirmed the reasons given to the Claimant as to why they considered him to be an adult. He also confirms that the Claimant was told (via the Tigre interpreter) ”the reasons which we believed him to be provisionally an adult, these were based on his varying dates of birth and considering his physical demeanour and presentation”. The reference to varying dates of birth is to the date he is recorded as giving to the Home Office officials and those given to the age assessors. The application was not opposed and I let the statement into evidence.

Permission to apply for judicial review was refused on the papers by HH Judge Belcher on 7 February 2024. As already mentioned, she granted certain orders by way of interim relief but refused that relating to accommodation and consolidation. As I largely agree with her conclusions, I set out the summary of her reasons as set out in her Order.

As regards consolidation, and which is also relevant to the first head of substantive relief claimed, generally challenging the Defendant’s procedure and practice she said the following:

“Consolidation with the other named cases is refused. It is sought

based on the premise that the short form assessment used by D in this case and the other cases is procedurally unfair. There is ample authority that there will be cases where a short assessment is appropriate and proper. The form used in this case is designed to enable D’s social workers to identify those cases where they are sure the individual is a child, those where they are sure the individual is not a child (taken by them as over 25) and those cases where they are not sure and where a full assessment will be required. Whether the short assessment was appropriate/properly carried out in the circumstances of any given case is fact specific. Each of these cases falls to be considered on its own merits.”

She then deals with a number of points made:

“3.

I accept that reasons in a short form assessment may be brief. C claims he was given no reasons. The 2 social workers state in their respective witness statements (using different wording) that the outcome of their joint discussion concluding that C was over 25 was explained to him. They do not give any detail of what the explanation was. Thus the case relies on the documents, being “the Over 25 letter” dated 13/09/23 and the Brief Enquiry form completed by the social workers,

4.

The Over 25 letter includes no reasons for the conclusion that C is over 25. The Brief Enquiry form lists 4 matters under “Physical Appearance and Presentation” but nowhere lists these as reasons for reaching any conclusion. C argues that is insufficient to allow C to know the reasons for the decision. I accept D’s position that the two documents are to be read together, given that the Over 25 letter was handed to D at the end of the interview meeting. The reasonable bystander relied upon by D would see references to physical appearance and adult demeanour. When read together with the Over 25 letter it is not reasonably arguable that the conclusion that C is over 25 is based on anything other than his physical appearance and presentation, including the obvious reference to adult demeanour, There is nothing else in that document which could lead to that conclusion. Whilst it would undoubtedly be better if that list was specifically referred to as being the reasons (either in the form itself or in the Over 25 letter), in my judgement it is nevertheless sufficient to enable C to understand the reasons for the conclusion reached.

5.

The change of interpreter occurred at the very end of the assessment. C had the benefit of an interpreter who accepted he understood fully for the assessment itself and the oral sharing of the outcome.

6.

Much of C’s complaint amounts to a challenge to the outcome, rather than the process.”

Ground 1 of the Detailed Statement of Facts and Grounds asserts generally procedural unfairness and irrationality in the manner in which brief age assessments are carried out by the Defendant. However, the complaints are also clearly directed at the particular assessment in this case.

It is submitted that the format of the enquiry form, the lack of care taken in recording the social workers’ notes (“handwritten and often illegible”), and the failure to record reasons underlying the assessment and which are capable of drawing all the information collated from the assessment together renders the assessment procedurally unfair (paragraph 19).

It is also submitted that the form does not unequivocally confirm whether an interpreter was utilised and whether any difficulties were experienced as a result. The form does not record whether checks were undertaken with each of the claimants as to their ability and fitness to participate in the assessments. Neither does the form record what was discussed with each of the claimants, particularly in the context of adverse credibility being held against them subsequently (paragraph 22).

Finally it is suggested that there is a misconceived belief of an entitlement to rely upon Home Office assessments. Reference is made to a different case. As regards this case, the form has two relevant sections. After “Name” and “Language spoken” there is a question as to “Age/Date of birth already stated to Police /immigration. The form has been completed in manuscript in this respect as “26/11/2006” and under that “26/11/1997- HO age on documents”. There is also the option to fill in details under the question: “Other professional’s opinion on age e.g. police, police doctor immigration official”. In this case that part of the form was not completed, although the Port/Home office reference number is completed under the heading “Information required…if person to be accommodated…due to stated age of under 18 being accepted or a full age assessment being require. [Sic]. This information does not need to be completed if it is judged that the person is over the age of 25.”

First of all, I agree with HH Judge Belcher that a general challenge to the practice and procedure of the Defendant’s age assessment process (ground 1 of the Claimant’s grounds) is misconceived. It does not seem to me arguable, with a real prospect of success, that the form which is utilised is inadequate for the purposes of raising questions to see whether on a brief assessment it is either obvious that the subject is over the age of 25 or it is obvious that they are under the age of 18 or that it is unclear whether they are either such that a full assessment may be required. Further, no particular practice/procedure is identified of which criticism is made which can be said to be general rather than occurring in particular cases.

Most of the other complaints do not identify matters that necessarily apply in every age assessment carried out by the Defendant but will depend upon the precise facts in each case.

As regards complaints as to illegibility and how the form is filled in it seems to me these are obviously matters which fall to be considered on a case by case basis. In this case I cannot see that the handwritten nature of the notes bears upon the fairness of the procedure and they are not illegible.

As regards complaints about recording the interpreter position in a more detailed manner (including checks as to the ability and fitness to participate of the subject), again it seems to me that this misses the point. The issue is whether the process is fair, not whether every matter is recorded. The form does allow for recording any immediate health or wellbeing needs (that being the first question after Physical Appearance and Presentation observations). In this case in any event the clear evidence of the social workers (compared with the general and unspecific evidence of the Claimant) is accepted. There is accordingly no evidence at all of any unfairness following from language or interpreter difficulties.

As regards the Home Office assessment, it is part of the background and seems to me sensible for such assessments (as with other assessments by professionals) to be taken into account. If for example, the Home Office had decided that the age of the Claimant was younger than that determined by the assessors in this case that would clearly be a matter for the assessors to consider by way of cross-check. The inclusion of the Home Office assessment of date of birth in the form does not begin to demonstrate a real prospect of success of showing that the assessors placed an irrational or improper emphasis on the Home Office assessment or that they failed to undertake their own assessment.

So far as the giving of reasons for the age assessment are concerned, it seems to me that each case will be fact specific as to whether the reasons are clear enough or not. Again, a generic complaint on this ground about all brief age assessments carried out by the Defendant does not have a real prospect of success.

In this case, I agree with HH Judge Belcher that the reasons are to be found by reading together the letter provided to the Claimant and the form entitled “Brief Enquiry [as to Age]”. However, I also have the benefit of the further witness statement from Mr Banks clarifying that the assessors also took into account the different ages provided to them and the Home Office officials on arrival regarding what the Claimant says was his date of birth. It seems that they also took into account his recorded explanation for this and that the point was explained to him and he was given the opportunity to say all that he wanted to on this point.

As regards the specific assessment in this case (but relied upon as a grounds for attacking the entire practice and process of carrying out brief age assessments by the Defendant), it is said that (a) there is no indication that the assessors took into account cultural, ethnic and racial contexts and the individual claimant’s life experiences and (b) has failed to set out reasons as to why the case is an “obvious one” not requiring a fuller enquiry (paragraphs 31 and 32).

As regards (a), the form itself requires these matters to be taken into account and there is no evidence that they have not been. Further, the social workers have been trained and undergone relevant courses about age assessment. I do not consider that there is a real prospect of success of challenge on this ground.

As regards (b), it doesn’t seem to me necessary to say anymore than the form records. The relevant matters relied upon are clearly set out. If the Claimant wishes to challenge the assessment on the basis that the physical characteristics (and demeanour) are different or that those identified do not demonstrate an age over 25 then he is well able to do so. The level of detail does not arguably fail to meet the test set out by Lord Brown in South Bucks District Council v Porter [2004] 1 WLR 1953 at paragraph [36] or by HHJ Thornton QC in AS v Croydon [2011] EWHC 2091 (Admin) at paragraph [19].

So far as it is said to be irrational to rely upon physical appearance and presentation, the case law makes clear that reliance can be placed on these matters in appropriate cases. There is no real prospect of success in establishing that in this case it was “irrational” to rely upon the characteristics identified.

I have already dealt with my factual analysis of the evidence. I do not accept that unspecified assertions of “difficulties” are arguable with a real prospect of success in the light of the clear and more detailed evidence of the assessors.

I do not consider that a failure to record more details about the interpretation process at the time make the assessment unfair.

It is suggested that a “minded to” procedure should have been followed to allow the Claimant to respond and comment on the Home Office assessment of his age given it is said the likely circumstances in which the Home Office assessment was carried out. This is on the basis that “considerable weight” was placed on this assessment. As I have already said, there is no evidence that “considerable weight” was put on the Home Office assessment rather than on the assessors own assessment of the Claimant’s appearance and presentation. The basis for the asserted requirement therefore does not exist. I agree with what HHJ Belcher says in paragraphs 6 and 8 of her reasons. I do not consider that there is a real prospect of success regarding this ground.

The grounds do not advance any case regarding the differences in age put forward by the Claimant. For completeness though it is clear that the issue was raised and clear from Mr Banks’ evidence that the position was explained to the Claimant and he was given an opportunity to deal with it.

no reasons given for “clear case”

As I have already held: it seems to me that there is no real prospect of success on the basis of a submission (or ground) that the reasons were inadequate as not explaining more fully why the case was an obvious one where the subject was over 25. With the addition of the point about inconsistent ages, I agree with HH Judge Belcher’s reasons set out in paragraphs 3 and 4 under the heading “Reasons” in her order.

Separately, it is asserted that the view is not recorded that the case is an obvious one where the subject was obviously over 18 (and in fact over 25). I do not consider that there is an arguable case with a real prospect of success on that ground. That the decision is based on the case being an obvious one is clear from the Brief Enquiry form and the letter. The former makes clear that where there is a relevant doubt a full assessment would be needed and that an “Over 25” letter should only be issued and explained whether the assessor(s) consider the person is not under the age of 18 and are not “unsure”.

It is said that the Defendant’s assessors failed to take into account unidentified evidence from other, unidentified, professionals who had come into contact with the Claimant and say that it would have been to the same effect as the letter from Ms Norman. Subject to what I say in the next paragraph, no material from such “other professionals” has been put forward, either at the time or since. The fact that a reference was made is on the basis there was something to be investigated. If, as was the case, the assessors considered the position to be obvious then there was no need for them to inquire further.

Reference is made to the letter dated 9 November 2023 from Ms Norman. However, her assessment of physical characteristics and demeanour does not count for much as the assessors were able themselves to assess the same from their own observation. Further, she is not qualified in age assessments. In large part she seems to be saying that her “expertise” arises from being able to “compare [the claimant] with other young people who have had their ages accepted either initially or after an age dispute case”. A number of the points that she makes depends on the assessment of other unqualified people (e.g. older men refer to him as a child). In any event, these matters were not put to the assessors at the time. I do not consider that they were under a duty to make further enquiries in circumstances where they were of the view that the position was “obvious”.

Almost hidden away in the Claimant’s grounds (all of which are based on “soft” judicial review principles) is a reference to the objective test in the context of age assessments laid down by the Croydon case. However, the assertion is simply that the Defendant’s age assessment was “wrong”. No evidence or substantial grounds are put forward as to why there is a real prospect of success in establishing that the age assessment of the Defendant is incorrect and that in fact he will only reach his 18^th birthday on 20 May 2025. Accordingly, on the evidence before me there is simply an assertion that the Claimant was in truth born on 20 May 2007. No factual case by the Claimant is raised that could properly succeed in a contested factual hearing as to the Claimant’s age or, put another way, I am satisfied that the claimant’s case as to his age raises a case which, taken at its highest, could not properly succeed in a contested factual hearing.

With the refusal of permission, it follows that interim relief regarding accommodation based on the Claimant being under the age of 18 also fails.

Even if I am wrong on the refusal of permission, like HHJ Belcher I would have refused interim relief regarding accommodation on the basis that she would have done: namely absence of swift application, and the weighing of the public interest factors against other factors (including the strength of the case, which on the assumption that I am wrong, is not a strong one) identified in the acknowledgement of service.