Basmah Sahib spoke about a novel civil claim for damages years after an unlawful age assessment at a roundtable meeting attended by legal experts in the field yesterday morning.

The meeting was about whether – and, if so, how – unaccompanied asylum-seeking children can secure damages for breaches of their human rights pending an age assessment, or after a negative age decision. Attendees included legal experts specialising in judicial review challenges arising from age assessments conducted by local authorities.

Basmah spoke about her client Amir’s case (this is not his real name). Amir is an Ethiopian national whose male relatives were either killed, or incarcerated, during a period of civil unrest in 2016. Amir fled his home country and lost contact with his mother during his journey. Amir traveled through Libya – where he, like many other migrants taking this route, was subject to forced labour – before he arrived in the UK as an unaccompanied asylum-seeking child. Amir had no identity papers or travel documents with him on arrival and consequently no way to prove that he was a child.

Amir told Home Office case workers that he was 16 years old. He was accommodated by Harrow Council for a few months before the local authority disputed Amir’s claimed age and date of birth – something local authorities are advised against by the 2017 Department of Education Guidance, “Care of unaccompanied migrant children and child victims of modern slavery: Statutory guidance for local authorities.” This guidance requires age assessments to “only be carried out where there is significant reason to doubt that the claimant is a child. Age assessments should not be a routine part of a local authority’s assessment of unaccompanied or trafficked children.”

After the age assessment, social workers for Harrow Council decided that Amir was 19 years old and therefore not entitled to accommodation and support.

Amir’s case was passed over to the Home Office for asylum accommodation and support. He was separated from his age mates. Amir’s asylum claim was also rejected by the Home Office. Amir ended up either sofa surfing or homeless.

Amir managed to get back in touch with his mother in Ethiopia via Facebook, obtaining a photograph of his Ethiopian birth certificate from her, proving he was telling the truth about his age and date of birth. In November 2021, Harrow Council accepted Amir’s age and he has been treated as a care leaver by the local authority ever since.

In May 2022, Amir was referred by Young Roots to Bindmans for a claim in compensation for psychiatric injury and breaches of his Article 3 and 8 European Convention rights – which prohibit the State from inflicting inhuman and degrading treatment on its citizens, as well as unlawful interference in citizens’ private and family lives.

Amir’s case was that Harrow Council had failed to age assess him lawfully in keeping with the statutory guidance and common law principles which were in place at the time of the assessment (in 2017). Amir further pleaded that the local authority had also failed to recognise him as a potential victim of modern slavery, and hadn’t referred him to the National Referral Mechanism. Amir said that all of these failures were causally linked to his worsening mental state, homelessness and depression.

Harrow Council settled Amir’s claim by agreeing to pay him £15,000 by way of compensation in addition to payment of his legal fees.

Amir was initially represented by Antonia Benfield, and subsequently by Marisa Cohen, of Doughty Street Chambers.

The roundtable discussion was chaired by Shu Shin Luh. Basmah’s fellow speakers and panel members included Antonia Benfield, Agata Patyna, Edward Taylor (Osbornes Solicitors) and Mark Scott (Bhatt Murphy). Speakers and delegates alike shared their concerns about unchecked ill treatment of their clients who are the most vulnerable members of society: undocumented and unaccompanied asylum-seeking children (UASCs). Practitioners heard from the panel members about potential legal remedies for this, including utilisation of the local authority’s complaints procedure, escalating complaints to the Local Government Ombudsman where necessary and civil litigation either by including a claim for damages as part of a judicial review challenge against the age decision, or as a standalone civil claim (as in Amir’s case) for damages arising from personal injury and/or breaches of the Human Rights Act 1998.

Antonia and Basmah spoke about how the European Court has – time and again – ordered States to compensate UASCs who have not been accommodated – whether appropriately, or at all – or have not received age-appropriate support in accordance with the host government’s domestic legislation (see the cases of Rahimi v Greece (application no. 8687/08 5 April 2011; Khan v France (Application no. 12267/16 28 May 2019); and Darboe and Camara v Italy (Application no. 5797/17 21 July 2022)).