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(Queen's Bench Division (Administrative Court); Collins J; 8 May 2009)
Two cases in which individual asylum seekers claimed to be under 18 came before the court, so that guidance could be given on the proper approach to be applied by authorities who, having made their own assessment of age, were presented with a report from an expert whose opinion was that the age assessment by the authorities was wrong. There were more than 70 claims for judicial review challenging the refusal of the relevant authority to follow a paediatrician's opinion, or at least to accept that it raised a doubt, the benefit of which should be given to the claimant.
This judgment should be treated as determining the correct approach for the court to adopt in age assessment cases. While, naturally, the individual circumstances of a particular case might show, at least arguably, that an age assessment had been flawed as a matter of law, that was likely to turn on the reasons given or on the procedures adopted by the decision maker, rather than on the subsequent opinion of an expert. As important as age assessment was, there were no reliable means by which an exact conclusion could be reached; in particular no scientific proof was available and the final decision involved the exercise of a judgment. Parliament had made it clear that the decision was for the relevant authority, not for the court; given the professional training and experience of the social workers involved in the decision making process, the court should not readily take the view that such decisions were flawed. The existence of a report from the expert used in these two cases could not generally attract any greater weight than the observations of an experienced social worker working within the current guidelines. While no authority could disregard a report from the expert in this case, or from another expert, only rarely would such a report persuade the decision maker to reach a different view, given that it was for the authority to decide how much weight to attach to a report. If there was some specific matter, such as a credibility finding that for good reason was regarded as erroneous, or an observation that could not be accepted, this could and should be identified. The Secretary of State was entitled to give prominence to properly conducted assessments, provided proper regard was also given to any other report or material presented. However, it was always necessary to be sure that an age assessment was properly conducted and had reached a sustainable conclusion; the record of and reasons for the assessment would be crucial and this rather than any conflicting medical report would usually provide the only possible grounds for judicial review. Problems had arisen in practice because of the belief that details of an age assessment could not be disclosed to the Home Office unless the claimant's written permission was first obtained. It was essential that the Home Office received a full report, as only with such a report could it judge whether the assessment was reliable, particularly if there was an expert report that contradicted the assessment, or some other evidence that pointed in the other direction. There was no need for the assessed person to provide written permission for Home Office use; the assessed person would in each case be told that the assessment would be used not only by the authority but also by the Home Office, to whom it would be disclosed. There was no obligation on an authority to obtain medical advice
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