NEWS: Osbornes successful at Upper Tribunal in complex and unusual age dispute

R (on the Application of MRA) v Surrey County Council (JR/7871/2018)

Our client MRA, a national of Iran, arrived in the UK in March 2016 as an unaccompanied asylum seeking child (“UASC”). He gave a date of birth that meant he was 12 and was taken into the care of the Defendant. He experienced a number of quick and successive children’s placements shortly thereafter, and concerns were raised about his mental health. MRA subsequently gave a second date of birth that would mean he was 15, which he later explained was because he hoped it would lead to being moved to different and more suitable accommodation. Despite concerns about MRA’s mental health at the time, no formal age assessment was undertaken by the Defendant.

In 2017, as MRA’s mental health again deteriorated and after his placement broke down, he told his social workers and doctors that his age was wrong and that his correct date of birth was the original date he gave on arrival to the UK. The Defendant did not accept this. MRA spent a considerable period between December 2017 and May 2018 without suitable or age appropriate accommodation or support. No age assessment was undertaken throughout this period.

The Defendant agreed to age assessment only once Osbornes Law were instructed in February 2018. The Defendant concluded in their assessment that the second, older date of birth was correct which meant MRA was 17, turning 18 in June 2018.

MRA sought to challenge the assessment and the assessed date of birth by way of judicial review. He was granted permission and inter relief in December 2018 and the matter was transferred to the Upper Tribunal (Immigration & Asylum Chamber). In April 2019 over 3 days a fact-finding hearing was heard before Upper Tribunal Judge Plimmer. On 14 May 2019 she handed down her judgment finding MRA to be 15, declaring he is his claimed date of birth.

 

Age Dispute – the facts

The facts of the case were unusual in the context of age disputes. Judge Plimmer found that MRA’s reasons for changing his age in 2016 to give an older age were plausible and supported by the contemporaneous records. She found that MRA and his 8 witnesses were all credible, clear and helpful to her in her fact-finding role. She attached weight to their evidence.

Expert witness evidence was also adduced which the Upper Tribunal and Defendant accepted and which assisted Judge Plimmer in her fact-finding role. Conversely, Judge Plimmer attached little weight to any of the Defendant’s witnesses and she was “not prepared give weight to the age assessment”, which she observed was “significantly flawed”.

Judge Plimmer noted the following in her judgment:

“I accept Ms Hafesji’s submission that little was done on the part of the Defendant to be pro-active in assisting MRA with his asylum claim or in providing clearly relevant detailed information to his immigration solicitors”

 “Unfortunately, there was no clear recognition on the part of [the Defendant’s witness] that it was important both for MRA’s mental health and other reasons relating to identity, the services provided to MRA and his asylum claim, to have the issue of his age fairly and comprehensively resolved promptly.  MRA should have been given a far earlier formal opportunity to explore crucial matters relevant to his age.”

 “The social workers involved in this age assessment do not appear to have much experience of age assessments. Whilst some age assessments may prove decisive, this is not one.  In all the circumstances I am not prepared to give weight to the age assessment or to the views expressed by [the assessing social workers].”

“The Defendant will no doubt reflect on the findings I have set out above, with a view to improving their general approach to age disputed children in the future, as well as to MRA.  In addition, given what has happened over the last three years, the Defendant will need to be pro-active in re-building a relationship of trust and confidence with MRA.” 

 

Age Dispute – important general principles

In our view, this case demonstrates four principles:

1. How vital it is for Local Authorities to have (and to follow) clear and lawful processes when assessing vulnerable young people who come into their area. Age assessments must be conducted promptly. The relevant statutory guidance and legal framework should be clearly followed. For MRA, he should have been age-assessed in 2016 when he first arrived and was taken into the Defendant’s care. It should not have been the reluctant decision that it was, two years later, and only after MRA had appointed solicitors:

“I was provided with no cogent explanation for the failure to undertake an age assessment until Osbornes were instructed in 2018”

2. The need for Local Authorities to carefully and fully record and document important conversations, decisions or agreements regarding a child’s age. The Defendant’s record-keeping in this matter was criticised by the Upper Tribunal.

“There are no clear social care notes setting out the context in which MRA gave the 2000 dob. This was a significant event and MRA’s disclosure occurred at a time when he was on any view a vulnerable young person without an advocate or solicitor and deeply unhappy, yet there has been no cogent explanation from the Defendant for the absence of any notes.”

3. The case highlights how crucial initial assessments that Local Authorities undertake are to their understanding of an UASC’s needs, which are often complex and varied, and to their longer-term care planning. MRA’s needs were not adequately assessed by the Defendant when he arrived and this resulted in unsuitable children’s placements that did not meet his needs and which ultimately broke down.

4. The need for Local Authorities to ensure that UASC in their care are proactively supported to claim asylum promptly. This should include helping them to appoint an immigration solicitor and to share and disclose information relevant to the asylum claim, for instance age disputes or medical issues.

MRA was represented in this matter by Alex McMahon of Osbornes Law, and Khatija Hafesji of Monckton Chambers.