Durani v SSHD [2013] EWHC 284 (Admin)

This case concerned the sadly familiar situation of a young Afghan male entering the UK clandestinely, tired after a long journey, then interviewed by social workers.

The local authority assessed him as being 17 at the time of arrival in the UK. Subsequently the SSHD sought to remove him on the basis that on that calculation he was by then 18.

The SSHD’s policy is that she will rely on a Mertoncompliant age assessment conducted by a local authority.

By the time of the hearing it was accepted that the claimant had been 16 at the time of the assessment. The Court then had to determine whether there had been a Merton-compliant age assessment, and whether the SSHD had been entitled to proceed on the basis that there had been a Merton-compliant assessment.

It held that the age assessment conducted shortly after arrival had been far from Merton-compliant. Most notably, the local authority assessment itself was marked as being “inconclusive”, indicating further work needed to be done. The interview had been conducted when the claimant was known to be very tired and feeling unwell. The claimant had not been given an opportunity to address the reasons for believing he was lying as to his age.

The Court also held that the SSHD had not been entitled to proceed on the basis that there had been a Merton-compliant age assessment. The Court rejected a submission by the SSHD that the issue was whether there had “obviously” not been compliance with the Merton principles.

COMMENT: There has been a large amount of age assessment litigation involving local authorities, but less involving the SSHD. The two are in different positions. The SSHD does not have a stock of social workers available to conduct age assessments. It must rely on local authority assessments. The SSHD’s detention policy reflects this, relying on the existence of a Merton-compliant age assessment.

However what is less clear is whether the issue of age is a precedent fact in litigation involving the SSHD, as it is in disputes with local authorities over Children Act powers.

In Durani it was accepted that age, as it went to the legality of detention, proceeded as a challenge on public law grounds. This makes sense as normally it would not be possible for courts to conduct a factual inquiry prior to the SSHD deciding to detain, and so it is unlikely Parliament could have intended this.

However what happens when age disputes arise in other immigration contexts, most notably removal?

The Administrative Court has previously conducted a factual inquiry where, for example, the age dispute was the final bar to removal to a safe third country pursuant to Dublin II:R (ZS) v SSHD [2012] EWHC 3053 (Admin) is an example. In some cases it may be convenient for the SSHD to have the issue of age, and therefore removal, settled in this way. However the SSHD is unlikely to accept that in all age dispute cases she must go through a fact-finding hearing before she can remove the individual.Where the matter arises in a European context such as Dublin II, it may be open to the claimant to seek a reference to the ECJ.