Claim number: CO/2035/2023
In the High Court of Justice
King’s Bench Division
5 July 2023
Clive Sheldon KC, sitting as a Deputy Judge of the High Court
The King on the application of
London Borough of Lewisham
Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimant and the Acknowledgement of Service filed by the Defendant
ORDER by Clive Sheldon KC, sitting as a Deputy Judge of the High Court
- The Claimant shall be anonymised in these proceedings, and referred to as “HA”.
- The application for permission to apply for judicial review is refused.
- No order for costs.
- I grant an anonymity order with respect to the Claimant. On any view, the Claimant is a vulnerable individual, and an anonymity order is necessary to protect her interests. There is also, in my view, no public interest in knowing her particular name or details.
- With respect to the application for permission: the Claimant, who is an asylum seeker from Eritrea, seeks to challenge the Defendant local authority’s decision refusing to make a re-assessment of the Claimant’s age. A fully-Merton compliant age assessment was carried out and the decision reached on 10 February 2023. The conclusion reached was that the Claimant was between 22-23 years old, and not 17 as the Claimant maintained. That assessment is not challenged. Rather, the Claimant seeks to challenge the decision not to re-assess her age following the provision to the Defendant of a statement from Mr. Joshua Singer, a Children’s Advisor at the Age Dispute project of the Refugee Council. Mr. Singer states that he met with the Claimant for 1 ½ hours, and had frequent contact with her via text and email messages. Mr. Singer states that based on her physical appearance the Claimant looked between 17-19 years old, and that he believed that her presentation and behaviour was consistent with other 17 year old unaccompanied asylum seeking children of a similar background, gender and nationality.
- In my judgment, there is no arguable basis to challenge the Defendant’s decision, for the reasons set out in the Summary Grounds. I note, in particular, that the threshold for challenging a decision not to re-assess is a high one: in R (BM) v. Hackney LBC  EWHC 3338 at  (per Leigh-Ann Mulcahy QC, sitting as a deputy judge of the High Court), the test is whether the local authority believes that on the basis of the further information “a significantly different conclusion might be reached. That is a higher test and involves consideration of the degree to which the material might impact on the existing age assessment.” This test requires more than that the new material might have a bearing on the existing assessment.
- The Defendant’s decision not to re-assess – on the basis that in its view a significantly different conclusion would not be reached – was not arguably irrational. The Defendant correctly identified that the new material did not consist of an authoritative document. Rather, it was the opinion of someone (however qualified and experienced) who had met with the Claimant on one occasion. There was already ample material available to the Defendant from individuals who had spent more time with the Claimant, and in dynamic real-life settings, than had Mr. Singer. This included the view of the Claimant’s tutor, who considered that she was 17. The overall view of the assessors, based on a holistic consideration of the various materials available to them was that the Claimant was 22-23 years of age. It cannot sensibly be argued that Mr. Singer’s opinion had any real prospect of affecting that conclusion.
- In its Summary Grounds, the Defendant states that costs are sought. Nevertheless, no schedule was provided. In the circumstances, it is not possible for me to summarily assess costs. Further, it would not in my view be a good use of Court resources for the matter of costs to be deferred to a later stage and then looked at separately from this application for permission on the papers. This is especially the case where the Claimant is legally aided and the prospect of any recovery of costs will probably be quite slender. Of course, if the application is renewed at an oral hearing, and the Claimant is unsuccessful, the Defendant can make an application for the costs of preparing its Acknowledgment of Service at that stage.