Scottish Human Rights Law Group

The appeals of two asylum seekers (X and M) against a decision that they were adults and so were not entitled to be accommodated as children, were allowed by the Supreme Court.  The appellants claimed to be under 18, however, the local authorities determined that they were in fact over 18.

The Court of Appeal held that it was for the local authority to determine the age of applicants in such circumstances, and that Articles 6 and 8 of the ECHR did not apply to such a determination. However, the Supreme Court after considering the decision of Scarman L. R. v Secretary of State for the Home Department Ex p. Khawaja [1984] A.C. 74 HL, that where the exercise of an executive power depended upon the precedent establishment of an objective fact, the courts would decide whether the requirement had been satisfied. Whether a person was a child for the purposes of s.20(1) of the Children Act 1989 was therefore a question of fact which must ultimately be decided by the court. This finding made it unnecessary for the Court to make a determination on whether Article 6 applies to decisions under s 20(1).  Nevertheless, the Court noted that it was reluctant to go so far as the assumption made by the House of Lords in Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 A.C. 430. In this case the House had been content to assume, without deciding, that a claim for suitable accommodation under the homeless provisions of the Housing Act 1996 was a civil right. In the instant case, it was noted that no Strasbourg case had yet gone so far, and the court was reluctant to accept, unless driven by Strasbourg authority to do so, that Article 6 required that claims to welfare services were subject to a judicial process.  The court further noted that if the right to accommodation under s.20(1) was a civil right at all, it rested at the periphery of such rights and the present decision-making processes, coupled with judicial review on conventional grounds, were adequate to result in a fair determination within the meaning of Article 6.

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