Claim number: AC-2023-LON-002494
In the High Court of Justice
King’s Bench Division
3 November 2023
Michael Ford KC, sitting as a Deputy High Court Judge
The King on the application of
HS (by his litigation friend, Joshua Singer of the Refugee Council)
Slough Borough Council
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 Michael Ford KC, sitting as a Deputy High Court Judge
- The application for permission to apply for judicial review is granted on Grounds 1, 2 and 3.
- The judicial review application is transferred to the Upper Tribunal under s.31A(3) of the Senior Courts Act 1981, and it is for it to give directions on the hearing of the matter
- The Defendant shall treat the Claimant as a child born on 17 September 2007, pending the decision of the Upper Tribunal and/or further order.
- The Claimant shall be referred to in these proceedings as “HS”. Pursuant to CPR 39.2(4), there shall be no publication of the name or address of the Claimant or any particulars of the case likely to lead to the identification of the Claimant without the leave of the Court. Any person has liberty on three days’ written notice to the parties to apply to vary or discharge this order.
- Costs reserved.
- This is a claim challenging an age assessment by the Defendant dated 24 May 2023, assessing the Claimant to be aged 23, and the Defendant’s resulting refusal to provide him with accommodate and support under the Children Act 1989. The challenge to the age assessment is on the basis that it was factually incorrect because the Claimant was born on 17 September 2007 (Ground (1)) and on orthodox judicial review grounds (Ground (2)). Ground (3) contends that because of its unlawful age assessment, the Defendant failed to treat the Claimant as a child. The Claimant also claims interim relief.
- A PAP letter was sent on the Defendant on 7 August 2023, to which the Defendant responded on 15 August, resisting the claim and declining to reassess the Claimant’s age. On 22 September the Defendant sent its Acknowledgement of Service to the Court, saying it intended to contest the claim and that it would provide its summary grounds and its response to the Claimant’s application for interim relief in the week commencing 25 October 2023. But, so far as I can tell, to date it has not provided either its summary grounds or its response.
- In relation to Ground (1), I consider that the Claimant’s case meets the test for permission in R (Z) v Croydon  EWCA Civ 59 at para. 9.
- Although ground (2) is less straightforward, I consider it is also arguable for the reasons in the Statement of Facts and Grounds.
- The consequence of the above is that ground (3), which depends upon grounds (1) and (2), is also properly arguable.
- In light of the guidance of the Court of Appeal in SB v Royal Borough of Kensington & Chelsea  EWCA Civ 924, I consider it is accordance with the overriding objective for the judicial review to be transferred to the Upper Tribunal. I do not consider there is any good reason to deal separately with ground (2) in the Administrative Court because, first, that ground will be academic if ground (1) succeeds; and, second, it will lead to the duplication of time and costs if the two claims are dealt with separately. The decision of the Upper Tribunal will also resolve ground (3) and determine whether the Defendant should or should not treat the Claimant as a child (save for the issue of interim relief).
- In relation to the claim for interim relief, the Claimant’s claims are properly arguable and, so far as is necessary, I consider they give rise to a serious question to be tried. In the circumstances, I consider that the balance of justice and injustice strongly counts in favour of granting interim relief. The potential injustice to the Claimant of not granting interim relief should he turn out to be correct in his claim outweighs the potential injustice to the Defendant if it turns out it was correct in its assessment. On this question, I have had regard to the judgment in BG v Oxfordshire County Council  EWHC 3187 (Admin) at -. I am reinforced in my view by the absence of any response from the Defendant to the application for interim relief. I have therefore granted interim relief. The order includes the date of birth which the Claimant says is the correct one.
- Finally, I consider that it is necessary, appropriate and proportionate to make an anonymity order under CPR 39.2(4) to protect the interests of the Claimant and his family. I have particular regard to the importance of open justice and freedom of expression. But, quite apart from the Claimant being arguably a child, he is also an asylum seeker whose family in Afghanistan may be at risk and the hearing may involve disclosure of private information about his health, engaging his right to private life in Article 8.