Age assessment legal challenges should be made by judicial review, judge rules

Lord Woolman in the Court of Session held that while an action for declarator was also a competent remedy, there were “decisive advantages” to proceeding by way of judicial review.

The decision came in an action brought by “AU”, a refugee from Afghanistan who disputed an age assessment by Glasgow City Council social workers after they determined that he was at least three years older than he claimed.

The issue in the case was the correct procedure by which to challenge an age assessment.

Lord Woolman explained: “The United Kingdom authorities regularly assess the age of young individuals who come here seeking asylum. The exercise has important consequences. First and foremost it affects the individual in question. His or her identity is in part made up of their age. Further, it affects their right to remain here and to receive certain types of benefit including accommodation. Correspondingly, it governs the duties owed to the individual by central and local government and influences the role of other agencies. By way of illustration, local authorities wish to ensure that they do not place vulnerable 16 year olds with 20 year olds.”

“How can an individual challenge an age assessment? Scots law provides two possible remedies: an action of declarator, and a petition for judicial review. The choice is not merely a technical issue. There are significant procedural differences between them. Proceedings for judicial review: (i) must be brought within three months of the date of the decision under challenge: s 27A(1) of the Court of Session Act 1988; (ii) are subject to preliminary evaluation, and (iii) are “case managed”: RCS chapter 58.”

The court heard that recent years had seen a marked upward trend in the numbers of child asylum seekers, due in part to the UK’s commitment to receive more children after the disbanding of the refugee camp at Calais, known as “the Jungle”.

The summons stated that AU was born in Afghanistan in 1379 in the Shamsi calendar, which translates to the year 2000 in our calendar.

In 2012 his father and brother were murdered – according to AU – on the instructions of his paternal uncle, who placed AU in a military training school (“Madrassa”).

But AU refused to fight and another relative, fearing for AU’s safety, arranged to smuggle him out of Afghanistan.

After a year-long journey passing from Asia to Europe he eventually arrived at the Jungle and after several unsuccessful attempts he managed to cross the Channel in April 2014 on a lorry, but in the process of boarding the vehicle he lost his Afghan identity document.

AU claimed asylum on arrival in the UK and told the immigration authorities that he was 14, but he was assessed to have been born on 1 January 1996 and the Secretary of State for the Home Department then transferred him to Glasgow.

From June 2014 he resided at the Campus Project, which provides self-catering accommodation to persons between the ages of 16 and 18, but AU continued to maintain that he was 14.

However, following a formal assessment procedure two social workers determined that he was aged between 17 and 20 and assigned to him a birth date of 1 January 1997.

In consequence Glasgow City Council indicated that it proposed to relocate him to other accommodation, but AU objected to such a move and in February 2016 he sought judicial review, claiming that the decision breached his rights under the Children (Scotland) Act 1995 – although the parties subsequently reached an extra-judicial agreement and the court granted their motion to dismiss the petition in April 2016.

In the body of the petition, AU had disputed the age assessment and stated that he would raise separate proceedings to establish that he had only reached the age of 16. The parties

In March 2016 AU raised the present action, seeking declarator that his “date of birth is 20 March 2000, or such other date as the Court shall find established”.

However, Glasgow City Council contended that the action was “incompetent” as the correct procedure was judicial review.

The judge observed that in England and Wales the legal position was clear, as the UK Supreme Court had held that the only rememdy available is judicial review, but in Scotland the position was “less clear cut” following there petitions for judicial review that were all decided by Lord Stewart within a short period, which left matters “in a state of flux”.

Lord Woolman held that both declarator and judicial review were competent, but concluded that all such challenges should proceed by the latter.

In a written opinion, Lord Woolman said: “Declarator is an ancient and valuable remedy in Scots law. It enables a wide spectrum of issues to be determined, provided that the decision will have a civil legal consequence. A person’s age clearly falls into that category…I am satisfied that it is a competent remedy here.

“I hold, however, that judicial review is also available.

“There are decisive advantages to proceeding by way of judicial review. First, it means that the court begins with the age assessment decision, rather than starting afresh. Secondly, it is a more streamlined procedure.

“Every application is subject to the three month time limit. Local authorities and other agencies would therefore not be left uncertain of their obligations for extensive periods.

“The court could refuse leave to proceed in cases with no prospects of success. It could also issue directions designed to limit the length of any factual inquiry. Finally, there is a greater likelihood that a local authority will enter the process to defend the original decision.

“I do not accept Mrs Scott’s suggestion that a decree in an action of declarator is better than a decision in a petition for judicial review. In both cases it would be a formal determination of the person’s age. Accordingly I recommend that all future challenges be by way of Judicial Review.”