Age disputes, the SSHD and local authorities

The UK Border Agency’s policy is generally to accept a local authority’s assessment of age, and to treat children more favourably than adults in matters such as removal, dispersal, and immigration detention.

It is therefore not uncommon for claimants to challenge UKBA decisions by seeking to undo the underlying age assessment. Two recent cases demonstrate the sometimes complex intertwining of the roles and responsibilities of SSHD and of LAs in age dispute cases.

R (GE) v SSHD (unreported)

Facts

The claimant, an Eritrean national subject to deportation, sought to establish that she was a former relevant child under s.23C of the Children Act 1989. She had twice been assessed as being over 18 by her LA but challenged those assessments in JR proceedings. In the meantime, she was accommodated by SSHD pursuant to a court order. The basis of the claimant’s claim to be a former relevant child appears to have been that, during the time that her age was disputed, she ought to have been accommodated as a child in need under s.17 or s.20 of the CA 1989.

Decision

So far only an extempore summary is available, with a full written judgment expected soon. The court made a finding of fact the Claimant was now over 18. Whatever her real age at the time of the age dispute, she had been accommodated by SSHD and not as a relevant child under the CA 1989. Having never been a relevant child, she could not be a former relevant child. There was therefore no need to determine the Claimant’s exact age, or the question of whether she had been a minor at the relevant time, as in any event it would make no difference to the question of whether she was a former relevant child under s.23C of CA 1989.

Analysis

The division of responsibility between SSHD and LAs when it comes to accommodating age-disputed minors will have ramifications not only in the immediate term but also, under the continuing care provisions of the CA 1989, for many years into the future. These sorts of cases tend to arise in the first instance as urgent application for interim relief, and it can be tempting for advisers to focus on an immediate, ad hoc, solution. GE shows that all parties should try to keep one eye on the longer-term ramifications when considering what relief is to be given.

R (A) v (1) SSHD (2) Croydon London Borough Council (2013) (unreported)

Facts

A hearing to determine the claimant’s age had been fixed and directions set. The local authority failed to comply with directions but then, without warning and at the eleventh hour, accepted the claimant’s claimed age. Meanwhile, both the Claimant and the SSHD had prepared in full for trial.

Decision

The local authority was ordered to pay the costs of both the Claimant’s and the SSHD’s preparations for trial.

Analysis

Complicated costs issues can arise where a claimant successfully challenges a UKBA decision whose unlawfulness was that it was itself based on an unlawful LA age assessment. The apportionment of costs between defendants will of course vary depending on the circumstances of the case. The lesson to be drawn from this case is that in order to avoid adverse costs, an LA that intends to vary an age assessment relied upon by SSHD should do so as early as possible or, at the very least, give an indication that its assessment is under review.

Jonathan Auburn and Benjamin Tankel are barristers at 39 Essex Street.