24 Oct 2016, 43 mins ago

The Court of Appeal has ruled in London Borough of Croydon v Y[2016] EWCA Civ 398 that in challenging an age assessment a claimant may need to agree to further age assessments being carried out in order to proceed with the claim.

The Appellant in the proceedings, known as “Y”, was a Nigerian national who claimed that he had been a victim of physical and sexual abuse in Nigeria and that he was trafficked to the UK.

In November 2014 he was detained under the asylum fast-track detention scheme and considered to be an adult. His asylum claim was refused in December 2014. He was detained until 18 February 2015, by which time he had issued judicial review proceedings against SSHD.

On 12 March 2015 Y was assessed by Social Services of the London Borough of Croydon (“Croydon”) as being over 18 years of age. The judge noted that the age assessment was ‘based exclusively on Y’s appearance’. Y brought judicial review proceedings against Croydon, challenging the asessment.

Croydon applied to the court for the challenge to be struck out (or stayed) ‘unless Y consented to and co-operated fully with

  1. a dental examination (including a dental X-ray) by Professor Roberts;
  2. a psychiatric examination; and
  3. an age assessment by two Croydon social workers.

The application was refused in the Upper Tribunal because the Judge felt that Croydon’s application had been ‘too draconian’.

In considering the Upper Tribunal decision the Court of Appeal commented that ‘the judge had to consider whether all or any of the three examinations sought were reasonably necessary for the proper conduct of Croydon’s defence’. In this instance the judge found that the order sought by Croydon was reasonably necessary to enable Croydon to defend the challenge to the age assessment. Furthermore, the judge found that Y’s refusal to give his consent was unreasonable.

Despite finding that Y’s refusal to give his consent was unreasonable, the judge went on to acknowledge that the method of assessing age using dental x-rays was considered by some to be ‘controversial and unreliable’. However he felt that it was for the court to conclude whether x-rays were reliable based on arguments at the hearing but not as part of these proceedings.

Therefore the decision requires Y, whose age has yet to be determined, to undergo an invasive clinical procedure in order to continue proceedings, without deciding whether such a procedure will be necessary or even helpful in assessing his age.

The Free Movement blog who had come out against the reliability of X-rays for age assessments, cited the British Dental Association (BDA):

‘The BDA is vigorously opposed to the use of dental X-rays to determine whether asylum seekers have reached 18. This is an inaccurate method for assessing age.The BDA also believes that it is inappropriate and unethical to take radiographs of people when there is no health benefit for them. X-rays taken for a clinically-justified reason must not be used for another purpose without the patient’s informed consent, without coercion and in full knowledge of how the radiograph will be used and by whom.’

The issue of consent that is raised by BDA is particularly startling for unaccompanied asylum seekers as they may not have an appropriate adult to provide consent and they themselves are claiming to be under 18.

It is expected that the Court of Appeal decision may well be challenged.