Age assessments are a critical aspect of determining the age of unaccompanied asylum-seeking children (UAS Children). Accurate assessments ensure that children receive appropriate care and services. Since the creation of the National Age Assessment Board (NAAB), following the implementation of Part 4 of the Nationality and Borders Act 2022, many local authorities are referring putative UAS children to the NAAB for age assessments. These cases are often the borderline cases where it is challenging to determine whether someone is above or below the age of 18.
What is the National Age Assessment Board (NAAB)?
The NAAB is a central government body established to conduct age assessments for UAS Children. It aims to provide consistent and lawful assessments across the country, leveraging expertise in foreign identity documents and international conflicts.
The NAAB is not, however, without controversy. In March 2023, the British Association of Social Workers released a statement expressing concerns about potential political influence on NAAB social workers due to its affiliation with the Home Office.
An inspection by the Independent Chief Inspector of Borders and Immigration is currently reviewing the Home Office’s use of age assessments, with a focus on the NAAB. The CEO of the British Association of Social Workers, Dr Ruth Allen, has stated she hopes this inspection is the start of the dismantling of the NAAB – BASW welcomes inspection into Home Office age assessments.
Benefits of a Centralised Age Assessment Approach
Despite the controversies, there could be positives to having a central government body, with expertise in foreign countries, foreign identity documents, and up-to-date knowledge of ongoing international conflicts, conduct age assessments of putative UAS children.
This centralised approach could be seen as preferable to having different local authorities, each with varying levels of experience, practices, and policies, undertake these assessments. The current system can lead to something of a postcode lottery in the quality and lawfulness of age assessments across the country.
Having central government take on age assessments could also help alleviate the burden on certain local authority’s children’s services that handle the majority of age assessments due to their geographic location or their willingness to take on a higher portion of UAS children under the National Transfer Scheme.
How the NAAB Can Support Local Authorities
Through Invicta Law’s work representing and advising local authority children’s services across the country on their legal duties towards UAS children, we have observed that the NAAB can be a great help to local authorities with large backlogs of age assessments. Similarly, using the NAAB may be an attractive option for local authorities who would rather avoid the complex and highly litigious area of age assessments, or who simply do not have enough social workers trained in age assessment
The detailed and lengthy nature of NAAB assessments, however, can cause issues in the criminal court system, particularly when live criminal proceedings require the issue of a putative UAS child’s age to be settled as part of those proceedings. We are aware of several criminal court judges having requested speedy determinations of UAS children’s ages for consideration in criminal proceedings. However, anyone who practices in age assessment will be aware that speedy decisions on age, especially in borderline cases, are rarely viewed positively by the administrative courts.
Below we have explored examples of some particular points to consider for local authorities considering approaching the NAAB and given guidance we would have for local authorities should the NAAB be completing an age assessment of a putative UAS Child the local authority is responsible for providing services to.
Difference in Practice with Social Media Searches
A putative UAS child’s social media channels can be a useful source of information and often play an important part in the age assessment process. The Home Office procedures for conducting social media checks, however, differ from those of most local authorities.
Local authority social workers typically engage directly with the young person’s social media accounts. They conduct searches to view information in the public domain and then inform the young person that their account has been viewed, explain the reason, and share any information that raises concerns about the young person’s claimed age. Some young people may even offer to show information on their social media to corroborate details given during the age assessment. When this happens, local authority social workers can view the young person’s account in their presence with their consent, making the process more engaging and less overwhelming.
In contrast, NAAB social workers do not conduct social media checks themselves; instead, a separate department handles them. The NAAB checks social media accounts provided by the young person at the start of the assessment but does not review the accounts in the young person’s presence. This reliance on information provided by the young person and checked by a separate department can be problematic, as it may miss important context and nuances that direct engagement would provide.
Disputes between the Local Authority and the NAAB
Under section 50 of the Nationality and Borders Act 2022, the NAAB’s determination of a putative UAS child’s age is legally binding on the local authority where the local authority has instructed the NAAB to conduct an age assessment on its behalf. If requesting the NAAB complete an age assessment the local authority is legally bound by the ultimate decision on age when providing services under the Children Act 1989, regardless of any disagreement with the outcome.
This means when the local authority requests the NAAB to complete an age assessment it is handing over its decision making powers, including in relation to any legal proceedings brought challenging that NAAB age assessment. In such legal proceedings, if the NAAB has completed the assessment, it will be the respondent to the legal challenge and thus the decision maker in whether to settle those legal proceedings or defend the proceedings up to and at a final fact-finding hearing on age.
There is also the possibility that the NAAB will conduct its own age assessments pursuant to section 51 of the Nationality and Borders Act 2022 without a referral from the local authority. This is likely to occur should the Home Office have concerns regarding the outcome of a local authority’s age assessment or in circumstances where the Home Office does not agree with the local authority’s decision not to conduct an age assessment because the local authority has accepted the putative UAS child’s claimed age.
The Age Assessment Joint Working Guidance does outline a process for escalating disputes over the assessed age between the local authority and NAAB to higher-level decision-makers at the respective local authority and within the Home Office.
However, if no agreement is reached the guidance suggests the NAAB will proceed to complete its own age assessment under section 51 of the Nationality and Borders Act 2022 and use that assessed age for immigration purposes. This assessment is considered non-binding ‘new information’ that the local authority need only take account of when determining how to exercise its functions under the Children Act 1989.
In practice, this could lead to different age determinations by different government bodies exercising different public law functions. Such discrepancies are unlikely to be accepted by the young person’s immigration or community care lawyers and will likely result in legal proceedings being brought to resolve the age determination as a matter of precedent fact by the courts.
Currently, age assessment disputes are resolved through Judicial Review, as implementing the system of appeal to the First Tier Immigration Tribunal (set out in s54 of the Nationality and Borders Act 2022) has made little progress. Judicial Review proceedings are costly, especially if the respondent public body fails in its defence and must cover the young person’s legal costs for bringing the claim. If the NAAB concedes the legal proceedings, however, it is the local authority who bears the responsibility for and costs of accommodating the individual, regardless of any safeguarding concerns the local authority may have with placing someone they do not accept is a child in children’s services accommodation.
Guidance for Local Authorities working with the NAAB
· Engage with the NAAB: Communicate with the NAAB throughout the age assessment and ensure all professionals working with the young person contribute to the age assessment process. This collaboration helps ensure the best decision possible is made regarding the putative UAS child’s age.
· Equip Your Staff with the Right Training: Ensure staff likely to work with UAS children receive training in age assessment. They should be aware of the types of information and observations that will assist the NAAB (or local authority) during any age assessment.
· Tell the Young Person About the Observations: Ensure any observations by professionals are put to the young person for commenting or addressing during an age assessment session. This step is crucial, and age assessing social workers have sometimes overlooked this in the past.
· Quality Assure Age Assessments: As the local authority will be responsible for accommodating a UAS child and arranging age- and needs-appropriate support, it’s important to raise any concerns with the NAAB’s age assessment process or conclusions early. We strongly advise local authorities to have their legal departments quality assure draft age assessments from the NAAB before the conclusion of the assessment.
· Stay Updated on Legal Proceedings: Ensure you stay updated about legal challenges to the age assessment and be aware of the deadline (limitation period) by which these challenges must be filed. If this period expires, it may no longer be possible to legally contest the age assessment.
· Prepare for Judicial Review: The local authority should be prepared to be made an Interested Party to Judicial Review challenges brought against NAAB age assessments. Once permission for a Judicial Review challenge is granted, it is highly likely that the local authority will have to accommodate the putative UAS child as if they were their claimed age until the resolution of those proceedings, which frequently lasts for more than a year.
· Work with NAAB during proceedings: It is essential that the local authority legal team is in constant contact with the NAAB legal team during any judicial review claim so that the local authority is consulted about any potential decisions made by the NAAB as respondent which may affect the local authority and its statutory duties.
Support from Invicta Law
Invicta Law provides training to local authorities on the legal pitfalls in conducting age assessments, including social media searches, and other matters related to caring for UAS Children, such as Human Rights Assessments. Our team also regularly advises local authorities on their duties towards UAS Children, quality assures age assessments and acts for local authorities in Judicial Review challenges brought to their age assessments.
If you need support in any of these areas, please email asylumteam@invicta.law and a member of our specialist Asylum Team will get back to you.
