September 16, 2022

K -v- London Borough of Islington (anonymity order)

Administrative Court High Court King's Bench Division Anonymity Order

Case No: CO/2043/2022

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

14 September 2022

Before:

Upper Tribunal Judge Church, sitting as a Judge of the High Court

Between:

The King on the application of

-v-

London Borough of Islington

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(s) of service filed by the Defendant and Interested Party

ORDER by Upper Tribunal Judge Church, sitting as a Judge of the High Court:

1. The application for anonymity is granted. Pursuant to CPR rule 39.2(3)(d) and (4), with effect from the date of this Order and until further order:
a. there shall be substituted for all purposes in this case, in place of references to the Claimant’s name, references to “K”.
b. there shall be no publication of any name, address, picture or other information likely to lead to the identification of the Claimant or his family being the Claimant or his family in these proceedings.
c. “publication” means communication to the public or any section of the public. It includes publication in a newspaper or broadcast, or on the internet, by any person.
d. the Defendant, and any party served with or given notice of the anonymity order, has permission to apply to discharge or vary that order. Any application for that purpose must be made in writing, on notice to all parties.
e. any application for permission to inspect of obtain a non-anonymised version of a document must be made on notice to the Claimant and in accordance with CPR r.5.4(C)(6).
2. The application for permission to apply for judicial review is granted.
3. The application to transfer these proceedings to the Upper Tribunal (Immigration and Asylum Chamber) is granted.
4. Costs reserved.

Observations and reasons

1. The Claimant is a national of Afghanistan. He arrived in the United Kingdom on 04 December 2021 via France by boat and claimed asylum.
2. The Claimant seeks to challenge the Defendant’s decision dated 24 February 2022 made, following an abbreviated age assessment, to assess him to be an adult aged 26 (the “Decision”), and consequently to refuse him access to children’s services. The Claimant maintains that his true age is 17.
3. His challenge to the Decision is on the basis that:
a. the abbreviated assessment was not compliant with the guidelines set out by Stanley Burnton J in B v Merton LBC [2003] EWHC 1689, for a holistic approach to age assessment;
b. the assessors’ reliance on the Claimant’s appearance and demeanour was “perverse”; and
c. the Defendant failed to give the Claimant the “benefit of the doubt”.
4. The real thrust of his case, though, is that the Defendant got his age wrong as a matter of fact. He seeks a fact-finding hearing in the Upper Tribunal to determine his true age.
5. The Defendant resists the claim on the basis that the abbreviated assessment on which the Decision relied was compliant with the proper approach to such situations set out by Thornton J in R (AB) v Kent CC [2020] EWHC 109, and also Merton-compliant, because this was an “obvious case” where the Claimant was clearly not a child, and the Decision took into account the margin for error in the abbreviated nature of the assessment, and gave the Claimant the benefit of the doubt (proceeding on the basis that he was at the very youngest end of the age range at which he was assessed (i.e. 26-40), which still gave him an age greater than 8 years older than a child.
6. While I am not immediately persuaded by the Claimant’s arguments in respect of Merton compliance, the alleged perversity of the extent of reliance placed on the Claimant’s appearance and demeanour, or that the Decision failed to give the Claimant the “benefit of the doubt”, especially given that the Claimant doesn’t address what Thornton J said on these issues in R (AB) v Kent CC, but I am aware that when considering permission to appeal in such cases I must have in mind that the relevant question in the substantive judicial review, if permission is granted, will be a pure question of fact (per Holman J in R (F) v LB of Lewisham [2009] EWHC 3542 (Admin) at [14] and 15): what is the true age of the Claimant?
7. In R (F) v LB of Lewisham Holman J laid out the proper approach to deciding permission applications in two different classes of case. This case falls within the first category identified by Holman J: where the local authority has assessed the claimant to have been already over 18 on the relevant date: “is there a realistic prospect, or arguable case that at a substantive fact-finding hearing the court will reach a relevant conclusion that the claimant is of a younger age than that assessed by the local authority and is or was on the relevant date a child?” (R (F) v LB of Lewisham at [15]).
8. The leading authority as to the test to be applied when considering permission to appeal in the context of a dispute on age assessment is the Court of Appeal’s judgment in R (FZ) v London Borough of Croydon [2011] EWCA Civ 59:

6. Claims for judicial review require the court’s permission to bring the claim. If the claim challenges the local authority’s assessment of age as a fact, the court has to apply an appropriate test in deciding whether to give permission. The parties presently before the court agree that the claimant is not entitled to permission simply because he asserts that the local authority’s assessment was wrong. It is evident that the Supreme Court [in R (A) v Croydon LBC [2009] UKSC 8] did not contemplate that permission would be given in every case irrespective of any consideration of the merits.
7 … At the permission stage, the claimant has to show that he has a properly arguable case on the facts in the light of the evidence before the court, the local authority’s assessment and other relevant facts or circumstances.
…
9 … We consider that at the permission stage in an age assessment case the court should ask whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If so, permission should be refused. If not, permission should normally be granted, subject to other discretionary factors, such as delay. We decline to attach a quantitative adjective to the threshold which needs to be achieved here for permission to be given.
…
27 … Underlying these reasons [given by the judge below] is the inferential finding that the local authority were entitled to disbelieve the claimant as to his age, and that he had no realistic prospect of establishing in court what he had failed to establish when he was interviewed by the local authority assessors.”

9. My task is, therefore, to consider the merit of the Claimant’s case in light of all of the material available and decide whether, taken at its highest, the Claimant’s case could not properly succeed.
10. Having considered the papers, and in particular the witness statements of Kimberlee Gunn and Farida Mohammadi, I am satisfied that, when the Claimant’s case is taken at its highest, he has a realistic (as opposed to fanciful) prospect of succeeding at a fact-finding hearing. I am not persuaded that there is any discretionary factor which justifies my denying permission to appeal.
11. The Court of Appeal provided guidance on the transfer of disputed age assessment cases to the Upper Tribunal in R (FZ) v London Borough of Croydon (at [31]):

“The Administrative Court does not habitually decide questions of fact on contested evidence and is not generally equipped to do so. Oral evidence is not normally a feature of judicial review proceedings or statutory appeals. We would therefore draw attention to the power which there now is to transfer age assessment cases where permission is given for the factual determination of the claimant’s age to the Upper Tribunal under section 31A(3) of the Senior Courts Act 1981, as inserted by section 19 of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal has a sufficient judicial review jurisdiction for this purpose under section 15 of the 2007 Act and by article 11(c)(ii) of the of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010, SI 2010 No. 2655. Transfer to the Upper Tribunal is appropriate because the judges there have experience of assessing the ages of children from abroad in the context of disputed asylum claims. If an age assessment judicial review claim is started in the Administrative Court, the Administrative Court will normally decide whether permission should be granted before considering whether to transfer the claim to the Upper Tribunal. The matter could be transferred for permission also to be considered, but the Administrative Court should not give directions for the future conduct of the case after transfer, and in particular should not direct a rolled-up hearing in the Upper Tribunal.”

12. I consider it to be appropriate for this matter to be transferred, with permission, to the Upper Tribunal. Given the volume of cases which come before the Immigration and Asylum Chamber of the Upper Tribunal involving issues such as those in this case, and given the expertise which its judges have in this specialist area, the Upper Tribunal is the most appropriate forum for determining the matters of fact which are at the heart of the Claimant’s dispute with the Defendant.
13. Since I am persuaded that the Claimant has an arguable case to challenge the Decision, I must proceed on the basis that the Claimant might be a child. As such I consider that an anonymity order is required to secure the proper administration of justice for the duration of these proceedings (subject, of course, to further order) and that such an order balances the interests of open justice with the interests of the Claimant and his family.
14. In accordance with the guidance in R (FZ) v London Borough of Croydon I transfer the case without making case management directions for future conduct of the case, which should be a matter for the Upper Tribunal upon transfer.