DD -v- Luton Borough Council (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: AC-2024-LON-002858

In the High Court of Justice
King’s Bench Division
Administrative Court

29 October 2024

Before:

Michael Ford KC, sitting as a Deputy High Court Judge

Between:

The King on the application of
DD (By his litigation friend Joshua Singer of Refugee Council)

-v-

Luton Borough Council

Order

UPON an application by the Defendant for urgent interim relief dated 25 October 2024

AND UPON considering the Claimant’s claim form, the statement of facts and grounds, the application for anonymity, and the supporting documents lodged with the claim form

AND UPON considering the Defendant’s acknowledgement of service and the summary grounds

ORDER by the Michael Ford KC, sitting as a Deputy High Court Judge

  1. Pursuant to CPR rule 39.2, the identity of the Claimant and his brother shall not be directly or indirectly disclosed and these proceedings shall be known as “R (DD) (by his litigation friend Joshua Singer) v Luton Borough Council”. There shall be no publication of the identity of the Claimant or the Claimant’s brother or anything liable to lead to the identification of the Claimant or his brother in any report of, or otherwise in connection with, these proceedings.
  2. There shall be a hearing fixed on 13 November 2024 to hear the application for interim relief, with a time estimate for the hearing of 3 hours (to include time for giving judgment).
  3. The parties shall inform the Court forthwith if they consider that 3 hours is insufficient time for the hearing.
  4. Until the hearing of the application or further order, the Defendant shall treat the Claimant as a child aged 17 and provide him with age appropriate accommodation and support pursuant to the Children Act 1989.
  5. The parties shall provide a paginated bundle of documents to the Court by 4 pm on 6 November.
  6. The Claimant shall serve a skeleton argument in support of the application by no later than 4 pm on 8 November and the Defendant shall serve a skeleton argument in response by 4 pm on 11 November.
  7. The Court hearing the application may consider whether to grant or refuse permission or may defer the question of permission and make such further directions as it considers appropriate in connection with the conduct of the judicial review.
  8. In the event that the parties agree the resolution of the interim relief application, they shall inform the Court forthwith and submit an agreed order.
  9. Liberty to each party to apply to discharge or vary this Order on one day’s working notice in writing to the other side.
  10. Costs reserved.

Reasons

  1. The judicial claim is a challenge to the Defendant’s age assessment, dated 23 May 2004, which decided that the Claimant was aged 25 years. The Claimant contends his actual date of birth is 3 February 2007, so that he will be 18 on 3 February 2025. Ground 1 is a challenge to factual determination of the Claimant’s age. It is supported by what the Claimant contends are his birth certificate and a national registration card (“NRC”), verified as genuine by a report of Mr Verney, and both giving a date of birth of 3 February 2007. Ground 2 is a conventional judicial review challenge to the age assessment process. Ground 3, contending that the Claimant has been wrongly excluded from the support and accommodation due to him as a child, is parasitic on ground 1.
  2. The Claimant is an asylum seeker and, on his case, is still a child. So is his younger brother, who arrived in the UK before the Claimant. There is a risk to them and their family if they are identified. In light of the nature of the legal arguments in these proceedings, anonymising the identity of the Claimant and his brother will not detract greatly from the principle of open justice. In the circumstances I consider that it is appropriate to grant an anonymity order as a departure from that principle, in accordance with the guidance of the Court of Appeal on anonymising its judgments involving asylum seekers. I have therefore made an anonymity order in the terms of paragraph (1) of the Order.
  3. The Claimant sought interim relief in the statement of facts and grounds on the basis that he was then living in adult asylum accommodation. As an earlier N244 application had not been dealt with, an urgent application for interim relief was filed and served on 25 October 2024. The reason for the urgency is that the Claimant must leave his current accommodation by 29 October because he was granted refugee status on 20 September 2024 and so is no longer an asylum seeker. It is said he is vulnerable and is at risk of danger if made homelessness. Attempts to seek alternative accommodation have proven unsuccessful. The application seeks an order that the Defendant provides the Claimant with age-appropriate accommodation forthwith and until the conclusion of these proceedings.
  4. In its summary grounds the Defendants contests the claim. It contends, in essence, that the Claimant is lying about several critical matters, including the authenticity and origin of the birth certificate and the NRC, so that
    permission should be refused. It also contends that the weakness of DD’s case, as demonstrated by its submissions about his lying, is relevant to the balance of justice on interim relief.
  5. The test for granting permission on a challenge to the precedent fact of age is not high and the parties agree the test is set out in R (FZ) v Croydon [2011] EWCA Civ 50 at §9. So long as the threshold is crossed, there is likely to be a serious issue to be tried for the purpose of interim relief: see R (KRA) v Cheshire East Council [2024] EWHC 575 (Admin) at §15. Nonetheless, in light of the detailed factual challenges raised in the Defendant’s summary grounds based on allegations of lying – which may go to the balance of justice as well as to whether there is a serious issue to be tried – I do not consider it is appropriate to grant interim relief until the final conclusion of these proceedings. I consider, rather, that the appropriate order is to grant interim relief until the matter can be properly examined at a contested interim relief hearing (rather than on an urgent application on the papers). That hearing must take place urgently because, even on the Claimant’s case, he will cease to be a child on 3 February 2025.
  6. An urgent interim relief hearing can be arranged to take place on 13 November (which gives sufficient time to instruct alternative counsel if necessary). I consider that the balance of justice is in favour of granting interim relief for the short period between now and that hearing. The potential prejudice to the Claimant if no such order is made is very serious, because he will no longer have any accommodation and will be at risk of danger. The prejudice to the Defendant if the order was wrongly made is reduced because the period between this order and the date of the hearing is short.
  7. It may well be sensible for the judge hearing the interim relief hearing also to decide the question of permission for judicial review, given the close overlap of the test for granting permission and the “serious issue to be tried” issue to be tried in age cases based on precedent fact: see KRA. But I have left that matter for the judge to decide at the hearing.