AU v (First) Glasgow City Council, (Second) The Advocate General [2017] CSOH 122  (Outer House, Court of Session, 15 September 2017)

Background: This case concerned how the age of an asylum seeker with no identification documents was determined and how they could challenge the age the UK authorities had deemed him to be. The key issue in this case was whether the age finding had to be challenged through judicial review or application for decree of declarator.    In this case AU was a refugee from Afghanistan who claimed that he was born in 2000. He had lost his identity document to prove this while trying to enter the United Kingdom. When asked by UK authorities he stated he was 14 years old and he maintained this throughout. However, social workers who conducted a formal assessment determined that AU was aged between 17 – 20. He was placed under the responsibility of Glasgow City Council.  As a result, Glasgow CC decided to move him to accommodation suitable for a person of the age recommended by the social workers.  AU raised an action of judicial review against this and stated he would raise a further action to establish that he was only 16 at this time and not the age the authorities believed. The action was dismissed however when the parties reached an out of court agreement. A month later AU brought this case seeking declarator that he was born on the 20th of March 2000. Glasgow CC argued that the action was incompetent and that AU should have raised the action as judicial review not a declarator.       

Held: After consideration of case law in Scotland and the situation in England and Wales it was determined that all future cases of this nature should proceed using judicial review. Lord Woolman stated that the need for two actions to be raised to determine age was “highly unsatisfactory.” He also stated that judicial review had greater advantages to it. The procedure would not have to start from scratch but only from the point of the age assessment decision. He also described it as being more streamlined allowing for a faster result being reached meaning local authorities are not placed in a state of flux for any longer than is necessary.

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