Case number: CO/4053/2022
In the High Court of Justice
King’s Bench Division
14 March 2023
The Honourable Mrs Justice Lang DBE
The King on the application of
Secretary of State for the Home Department
(Port Ref: KIU/7221355)
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 Acknowledgment of service filed by the Defendant;
Order by the Honourable Mrs Justice Lang DBE
- Pursuant to CPR r.39.2, in any report of these proceedings, there shall be no publication of the name and address of the Claimant, nor any other particulars likely to lead to their identification. In the proceedings, the Claimant shall be anonymised and referred to as “HRA”.
- Non-parties may not obtain any documents from the court file which have not been anonymised and/or redacted to protect the identity of the Claimant, in accordance with paragraph 1 above.
- The Claimant’s time for filing the claim is extended to 2 November 2022.
- The application for permission to apply for judicial review on Grounds 1 and 2 is granted.
- In the light of the disclosure of detention records by the Defendant, the Claimant does not wish to pursue Ground 3 (unlawful detention) and accordingly it is withdrawn.
- The Defendant’s time for filing her Acknowledgment of Service is extended to 8 December 2022.
- The Claimant is granted permission to rely on her Reply.
- The proceedings are to be stayed for 28 days from the date of this order to enable the parties to reach a settlement of the claim. The parties are to notify the Court no later than 4 April 2023 whether or not a settlement
Form JR 1. Judicial Review. Permission Granted. Version September 2020 has been reached.
- If no settlement has been reached by 4 April 2023, the case management directions set out below are to take effect.
- Liberty to apply on 2 days’ notice to the other party.
- Costs in the case.
Case Management Directions
- The following Directions will only take effect if the claim is not settled by 4 April 2023, subject to further order of the Court.
- The Defendant and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within 35 days of the date of service of this Order, file and serve (a) Detailed Grounds for contesting the claim or supporting it on additional grounds, and (b) any written evidence that is to be relied on.
- The Claimant may file and serve any Reply and any further evidence within 21 days of the date of service of the Detailed Grounds and/or evidence.
- The Claimant must file and serve an agreed hearing bundle, not less than 28 days before the date of the hearing. The electronic version of the bundle shall be prepared and lodged by the Claimant in accordance with the Guidance on the Administrative Court website. The Claimant must also lodge two hard-copy versions of the hearing bundle at the Administrative Court Office, not less than 28 days before the date of the hearing.
- The Claimant must file and serve a Skeleton Argument not less than 14 days before the date of the hearing.
- The Defendant must file and serve a Skeleton Argument not less than 7 days before the date of the hearing.
- The Claimant must file and serve an agreed authorities bundle, not less than 5 days before the date of the hearing. The electronic version of the bundle shall be prepared by the Claimant in accordance with the Guidance on the Administrative Court website. The Claimant must also lodge a hard-copy version of the authorities bundle at the Administrative Court Office, not less than 5 days before the date of the hearing.
- The hearing is to be listed for 1 day; the parties to provide a written time estimate within 7 days of service of this order if they disagree with this direction.
- Venue: London.
I have granted an anonymity order. The Claimant is an asylum seeker who claims to be at risk. In the circumstances, a departure from the general principle of open justice is justified.
The Defendant has rightly acknowledged that, in the light of R(MA and HT) v Secretary of State for the Home Department  EWHC 98 (Admin), the age assessment conducted by the Kent Intake Unit (“KIU”) cannot be safely relied upon. She has therefore agreed to withdraw the decision dated 23 July 2021, which relied upon the KIU age assessment and has offered to make a fresh decision on age within 28 days of receiving a full Merton compliant age assessment from the local authority, absent special circumstances. In the light of this, the Defendant contends that the claim has become academic and invites the Court to refuse permission.
In response, the Claimant has stated that the Defendant’s proposal does not sufficiently address the Claimant’s concerns, and so Grounds 1 and 2 have not become academic. First, the Defendant has not agreed to withdraw the KIU age assessment, which is the focus of the Claimant’s challenge. It remains on the Claimant’s record and the Defendant has not given any assurances that it will not be taken into account in future. Second, the Defendant’s proposal to make a further decision upon receipt of a Merton compliant age assessment from the local authority is not an effective proposal given that the Claimant has not been under the care of any local authority, she is now over 18 on her claimed age.
In further email correspondence, the Defendant has stated that the withdrawal of the decisions dated 23 July 2021 “will in effect include the KIU age assessment” but she has refused to expressly withdraw it, as part of an order. However, in my judgment, the Claimant is correct in her submission in response that the KIU age assessment can be relied upon in future if it is not withdrawn or quashed, and therefore Grounds 1 and 2 are not academic whilst it remains in existence. Grounds 1 and 2 are clearly arguable, and therefore the Claimant ought to have permission to apply for judicial review.
In further email correspondence, the Defendant accepts that the Claimant is not currently known to a local authority, but suggests that it is open to a local authority to undertake an age assessment if there is doubt about a person’s age, and therefore the Claimant or the Claimant’s solicitors can therefore request a local authority to carry out an age assessment for her. Additionally, the Home Office’s safeguarding team have contacted the London Borough of Hammersmith and Fulham to ask if they will assist with an age assessment and a response is awaited. The Defendant also states that she will provisionally treat the Claimant as a child until her age is determined.
I have concerns about the Defendant’s proposal. On the Claimant’s own case, she is not a child – her claimed date of birth is 10 August 2004, and so her claimed age is 18. It seems unlikely that her local authority is going to accept a request from the Claimant to carry out an age assessment of her, particularly as she is now an adult, and has never been in their care. Perhaps the Home Office can persuade her local authority to do so, but the Defendant’s email was dated 20 December 2022, and I have not been provided with any updating information to indicate that her local authority has agreed to this.
The Defendant has refused the Claimant’s request to settle the claim, on the basis that the Claimant has not agreed to the Defendant’s proposal that she should only pay 70% of the Claimant’s reasonable costs. The Defendant stated in her email of 20 December 2022:
“The approach of settlement, which would require the parties to incur further costs in settling a consent order and filing sequential costs submissions and submissions in reply, would only unnecessarily increase the parties’ costs and is not in accordance with the overriding objective.”
I am puzzled by the Defendant’s reluctance to settle, as the costs of proceeding to a full judicial review claim are going to be much higher than the costs of filing a consent order and costs submissions. I am also concerned at the allocation of scarce Court resources to this litigation, in particular a hearing.
Therefore I have ordered a stay of the proceedings for 28 days to give the parties time to re-consider their respective positions and hopefully reach a settlement.
The Defendant has been granted an extension for the filing of the Acknowledgment of Service as the period of time was short, and it was not opposed.
The Claimant has been granted an extension of time to file the claim because the Defendant failed to disclose the KIU age assessment, dated 23 July 2021, until 13 September 2022. It was only disclosed pursuant to an order of the Court made by a Judge in an earlier claim by the Claimant concerning accommodation issues. The claim was filed on 2 November 2022.
The Claimant has been granted permission to rely on her Reply as it is relevant to the issues to be determined.