Asylum seeker assessed as over 18 by local authority loses challenge against lack of full age assessment

About this case:

• Citation:
  [2025] CSOH 60
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

The petitioner sought accommodation from a Scottish local authority under section 25(1) of the Children (Scotland) Act 1995 on the basis that he was a child born in May 2007. In his petition, he contended that the reasons in the respondent’s decision were inadequate, and that relevant matters in his personal circumstances had not been taken into account.

The petition was considered by Lord Lake in the Outer House of the Court of Session. Winter, advocate, appeared for the petitioner, and Blair, advocate, for the respondent.

Mature physique

On 28 March 2024, the council carried out an age assessment on the petitioner and concluded that he was older than 18. In a letter dated the same day, the council concluded that, based on a visual assessment of his appearance, his demeanour, and a brief inquiry with the assistance of an interpreter, it was obvious that he was significantly older than 18. It was therefore concluded that there was no need to conduct a full assessment.

It was argued by the petitioner that the respondent had not taken account the fact that he had carried out physical work from a young age, which would have resulted in him having a more mature physique. In terms of reliance on his demeanour, insofar as this was based on the conclusion that his answers were vague and lacked detail, the respondent had not taken into account the fact that he was subjected to threats, violence, and kidnap during his passage to the UK.

The respondent produced affidavits ex post facto from the social workers who had carried out the interview of the petitioner. They indicated the social workers had regard to the narrative that had been provided by the petitioner but that overall his appearance and demeanour justified the conclusion they had reached.

For the respondent it was submitted that the assessment had been carried out in accordance with the decision in R v Merton London Borough Council (2003). Local authorities were under no duty to undertake a prolonged inquiry to make an assessment of age. Although the reasons produced in the letter of March 2024 were brief, they were legally adequate.

Clear conclusion

In his decision, Lord Lake began by assessing the letter produced by the respondent: “The reasons provided by the respondent are indeed brief. However, they do indicate, as noted above, that the decision was made on the basis that the petitioner’s appearance and demeanour strongly suggested that he was significantly over the 18 years of age. Having regard to matters identified in the decision in Merton, that is a matter these social workers were entitled to rely upon and it could indicate to them that they did not require to undertake a more detailed age assessment.”

He continued: “Although the petitioner asks what it was about his appearance and demeanour that strongly suggested this, that in my submission goes too far in terms of asking for reasons. I agree with the submission for the respondents that it would always be possible to ask for more detailed reasons. If the letter said it was his build, the question might be asked what was it about his build that led to that conclusion. If the reasons went on to say it was the build of his shoulders, it would be possible to ask what was it about his shoulders. It is necessary to keep in mind that this is an administrative decision and not one made by qualified lawyers on the basis of competing submissions. As noted in Merton, it is appropriate not to over legalise the procedure.”

Addressing the case for irrationality, Lord Lake said: “While there is no doubt that irrationality - on whatever test falls to be applied - is a basis on which a decision can be set aside, I do not consider that it is possible to challenge the decision as to what matters to take into account on the basis that it was irrational. This could tend towards a review on the merits which is not the function of the court. The decision-maker must take into account all relevant factors and leave out of account any irrelevant ones. Unless it can be said that the factor in question was irrelevant, the decision-maker cannot be faulted for considering it.”
 
He oncluded: “The crucial question is the age of the petitioner. The decision letter stated what has been determined in that regard and the basis on which it was so determined. Although ‘appearance’ and ‘demeanour’ referred to in the respondent’s letter were identified as relevant factors in Merton, they remain reasons for the decision rather than the decision itself. Had the letter simply said that a clear conclusion had been formed that the petitioner was over the age of 18 without stating anything further, that would have been objectionable. Here, however, there is both the decision and the reasons for it.”

The petition was accordingly refused.