Waltham Forest Council in High Court over Afghan refugee

Waltham Forest Council is embroiled in a high court battle after claiming an Afghan refugee lied about being a child.

According to the refugee, known only as M to protect his identity, he fled Afghanistan at the age of 13 and arrived in the UK, alone, in October 2019 at age 14.

He was taken into care by Waltham Forest Council but the council later decided he was really an adult man, estimating he was between 19 and 22 when he arrived in the UK.

The council based its decision on M’s “mature physical appearance” and alleged “deliberate withholding of vital information” during an interview with two social workers in May 2020.

Charity Refugee Council helped M challenge the decision, arguing he had not been allowed to defend himself, but in October that year, the council argued his lack of growth and wisdom teeth proved their original conclusion was correct.

Following a hearing in June this year, high court deputy judge Dan Squires QC ruled the council had “not lawfully assessed” M’s age and carried out its assessment “in a procedurally unfair manner”.

In his written judgement, he wrote: “The ability to accurately assess a person’s age, especially when they may be close to 18, from the development of their teeth is an area of significant controversy on which there is not a clear and reliable expert position.

“While dental maturation or a lack of growth may indicate that a person is within a few years of 18, it cannot definitively determine whether the person is, say, 19 as opposed to 16/17.”

Deputy judge Squires QC therefore decided the council’s evidence from October 2020 was not compelling enough to make up for its failure to conduct a fair assessment earlier in May.

He noted that the social workers who decided M was not a child based this largely on their view that he “was not sufficiently forthcoming about matters which would enable his age to be determined”, such as the age of his siblings or how long he had attended his religious school.

He wrote: “Where it is proposed to take a decision on the basis that a person is believed to have “deliberately withheld information”, or that there are “discrepancies” or inconsistencies in their account, that is precisely the kind of situation in which fairness requires the person be able to comment prior to a final conclusion being reached.

“They may have answers to the assessors’ concerns and fairness requires they be permitted to respond to the concerns before a final decision is taken.

“Indeed, in the present case it is not clear what “discrepancies” or lack of “consisten[cy]” the [council] was referring to.”

He ruled that M’s case should go before the Upper Tribunal court, which will “carry out the necessary fact-finding determination” to estimate his real age.

A spokesperson for Refugee Council, who are supporting M’s legal challenge, confirmed a date for this hearing has not yet been set.

A Waltham Forest Council spokesperson said: “We do not discuss cases involving children and young people where there are still active proceedings.

“The council has a duty to ensure it accurately assesses the circumstances of anyone who requests help to make sure they receive the appropriate support to meet their specific needs.”

Victoria Munro

Local Democracy Reporter