It has been understood since 2017 that challenges to age assessments undertaken by Scottish Local Authorities should be taken in the form of judicial review proceedings. That understanding has now been thrown into doubt as the Outer House of Court of Session has dismissed judicial review proceedings in Abdullah v Aberdeenshire Council  CSOH 8 as incompetent, finding that the petitioner should have brought an Ordinary action for declarator of age instead.
Mr Abdullah is a Sudanese national who arrived in the UK in June 2021. He gave his age as 17 years old at that time. No formal age assessment was carried out and Mr Abdullah was accommodated by the local authority as an unaccompanied child in terms of section 25 of the Children 2 (Scotland) Act 1995.
Two months later, Mr Abdullah was charged with rape and was remanded in custody to a Young Offenders’ Institution. This triggered a formal age assessment exercise which concluded that he was not a child but rather an adult of at least 21 years of age.
Mr Abdullah sought reduction of this age assessment and a declarator as to his true age.
Judicial review as a vehicle for challenge
The challenge was brought as a petition for judicial review because Mr Abdullah sought to reduce the local authority’s assessment and because the Lord Ordinary in U v Glasgow City Council  CSOH 122 recommended that all future challenges to age assessments should be by way of judicial review.
In that case, the court identified the two possible remedies for challenging an age assessment under Scots law as being an action of declarator, and a petition for judicial review. The Lord Ordinary considered there to be decisive advantages to proceeding by way of judicial review:
“First, it means that the court begins with the age assessment decision, rather than starting afresh. Secondly, it is a more streamlined procedure. Every application is subject to the three-month time limit. Local authorities and other agencies would therefore not be left uncertain of their obligations for extensive periods. The court could refuse leave to proceed in cases with no prospects of success. It could also issue directions designed to limit the length of any factual inquiry. Finally, there is a greater likelihood that a local authority will enter the process to defend the original decision.”
But is declarator the better option?
When considering Mr Abdullah’s case, the Lord Ordinary found that there was a strong argument that ordinary procedure was the better procedure to use for all age assessment challenges.
Judicial review is concerned only with whether a decision has been lawfully made; it does not deal with whether the decision is factually correct. Fundamentally, the central issue in these challenges is a factual one subject to the original (ordinary) jurisdiction of the court rather than the supervisory jurisdiction.
The Lord Ordinary went on to say that:
“An action of declarator will, further, not require the court to grapple with what I regard as questions which it is unnecessary and difficult or even impossible to answer, such as the grounds upon which an extant age assessment may be challenged or the intensity of review which should be applied to it.
A declaratory action enables the court to supply its own answer to the age question without the necessity of first setting aside, on whatever grounds, someone else’s answer to the same question. That is not a matter of “re-making” a decision already made by a body to which a jurisdiction to do so has been committed by law. It is, rather, simply a matter of the court being asked in cases of dispute to exercise a power of decision committed by law to it and to it alone.”
Competing decisions on procedure
The upshot of the Lord Ordinary’s decision is that there are now two conflicting judgments from the Outer House as to the correct route for future challenges.
On the basis of U v Glasgow City Council  CSOH 122, applications should be by way of judicial review. However, applying Abdullah v Aberdeenshire Council  CSOH 8, challenges should be by ordinary action. Until there is authoritative guidance from the Inner House those seeking to challenge age assessments (and those seeking to resist such challenges) will face the prospect of treading an uncertain path.
The Nationality and Borders Act 2002
There is also a third category of procedure for challenges to age assessment decisions, as the judge acknowledged that the position might be different for any statutory age assessments conducted after 31 March 2023 by local authorities or the new National Age Assessment Board under the Nationality and Borders Act 2022. Such assessments will, in due course, have their own appeal route to the Immigration and Asylum Chamber of the First-tier Tribunal.