UK Courts Split: Scotland's Age Assessment Challenges Differ from England's Procedural Powers
Summary
A recent Scottish court ruling, QAN v South Lanarkshire Council [2026] CSOH 49, established that Scottish courts cannot independently determine an individual's age when challenging a local authority's age assessment, a significant departure from the precedent set in England. This means that unlike in England, where courts can substitute their own age determination, Scottish courts are limited to reviewing the lawfulness of the local authority's process. This divergence creates a complex and potentially unfair landscape for young people seeking asylum across the UK, especially those whose age is disputed.
A new ruling by the Outer House of the Court of Session in Scotland, QAN v South Lanarkshire Council [2026] CSOH 49, has clarified a significant procedural divergence in how age assessment challenges are handled across the UK. Unlike in England, where the Supreme Court's decision in R(A) v Croydon LBC [2009] UKSC 8 permits courts to conduct a 'fresh' age assessment and substitute their own conclusion for that of the local authority, Scottish courts are now confirmed to lack this power. Instead, they are limited to traditional judicial review principles, examining whether the local authority's decision was lawful, rational, and followed fair procedure, but not making a new determination of age themselves.
Practically, this means that an individual successfully challenging an age assessment in Scotland will likely see their case remitted back to the local authority for a fresh assessment, rather than receiving a definitive age determination from the court. This could lead to prolonged uncertainty and repeated processes for vulnerable young people, creating different legal outcomes based purely on geographic location within the UK. Applicants and their legal representatives must now navigate these distinct legal frameworks, which could impact strategic decisions regarding where and how to challenge an age assessment.
Background
Historically, the Supreme Court ruling in R(A) v Croydon LBC [2009] UKSC 8 set a precedent allowing courts in England and Wales to determine a person's age for themselves when an age assessment was challenged. This provided a pathway for a definitive judicial determination of age in such disputes.
Who This Affects
- Unaccompanied asylum-seeking children and young people whose age is disputed will experience different legal pathways for challenging age assessments depending on whether they are in Scotland or England.
- Local authorities in Scotland will face a different scope of judicial scrutiny for their age assessments, as courts will not substitute their own age determination.
- Legal representatives and charities supporting young immigrants must now be acutely aware of the divergent legal frameworks and strategies required for age assessment appeals across different parts of the UK.
What You Should Do Now
- Seek specialist legal advice immediately if your age is disputed, ensuring your representative understands the specific procedural differences between Scottish and English law.
- Gather and present all available evidence supporting your claimed age, as strong documentary evidence remains crucial for both initial assessments and subsequent challenges.
- Be prepared that a successful challenge to an age assessment in Scotland may result in a fresh assessment by the local authority, rather than a direct court determination of your age.
Key Takeaway
The recent Scottish court decision creates a significant procedural divergence for challenging age assessments within the UK, impacting young asylum seekers based on their location.
Source: Read official article on Free Movement (UK)
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