Age assessment: practice guidance

Appendix 6: Merton Note

Please note that the case law referred to in this guidance is intended to illustrate cases that are relevant to age assessments at the time of drafting this guidance. This is a developing area of law, therefore, the case law is subject to change. The cases referred to in this guidance should be used for reference only. Should you encounter a similar legal issue, we would recommend that you seek up to date independent legal advice.

There is no statutory guidance on how to conduct an age assessment. Instead, a body of case law has developed which gives guidance on the process required. Until 2009 with the case of R(A) v Croydon, R(M) v Lambeth [2009] UKSC 8, the leading case in this area was the case of R (B) v Merton [2003] EWHC 1689 (Admin). The Merton case remains important from the perspective of setting out an assessment approach. In the 'Merton' case, the judge set down broad guidelines of how age ought to be assessed in respect of unaccompanied minors who arrive in the UK without documentary evidence to prove their age ^[24] . The judge confirmed that the local authority "cannot simply adopt a decision made by the Home Office" and outlined the following points, many of which have been reiterated in subsequent cases:

• An assessment cannot be made solely on the basis of appearance, and should be a holistic one taking account of the young person's appearance, demeanour, background and credibility.
• Any assessment should take into account relevant factors from the child's medical, family and social history, and the decision maker should seek to elicit the general background of the application, including his family circumstances and history, his educational background and his activities during the previous few years. Ethnic and cultural information may also be important.
• There was a duty on the decision makers to give reasons for a decision that an applicant claiming to be a child is not a child.
• The young person should be given an opportunity during the assessment to answer any adverse points the decision maker was minded to hold against him.
• Age assessments must be conducted by experienced trained assessors and that all the safeguards to ensure fairness are in place.
• If the decision maker is left in doubt, the claimant should receive the benefit of that doubt.

A 'Merton compliant' assessment will be in accordance both with the Merton judgment and subsequent case law addressing age disputes. Subsequent case law has also established that a young person has a right to be accompanied during the assessment by an appropriate adult and that a local authority cannot simply rely on the decision of the First Tier Tribunal (Immigration and Asylum), or solely on the conclusion on a paediatric or other medical assessment. A list of leading cases is found in Appendix 7 which local authorities may find useful to consult.