September 18, 2024

MS -v- Kent County Council (anonymity order)

Administrative Court High Court King's Bench Division Anonymity Order

Claim number: AC-2024-LON-003049

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

18 September 2024

Before:

The Honourable Mrs Justice Lang DBE

Between:

The King on the application of
MS (by his Litigation Friend Erinc Argun Kayim, of the Refugee Council)

-v-

Kent County Council

Order

On the Claimant’s application for an anonymity order, urgent consideration, directions, a stay, and interim relief

Following consideration of the documents lodged by the parties;

Order by the Honourable Mrs Justice Lang DBE

1. 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 his identification. In the proceedings, the Claimant shall be anonymised and referred to as “MS”.

2. No later than 14 days after service of this order, the Claimant’s solicitors shall file with the Court copies of case documents which have been anonymised and/or redacted to protect the identity of the Claimant, in accordance with paragraph 1 above.

3. 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.

4. The Claimant’s application for interim relief is to be expedited and heard by a Judge in the Administrative Court, on a date to be fixed as soon as possible after 7 October 2024, having regard to the availability of counsel already instructed for the Claimant. Time estimate: 3 hours.

5. The application for a stay is refused at this stage, but may be reconsidered by the Court at the interim relief hearing.

6. No later than 7 days after service of this order, the Claimant must file and serve a Statement of Facts and Grounds, drafted by counsel, which:
a. incorporates the matters included in section 5 and 6 of the Claim Form, the application for Urgent Consideration, and the Grounds in Support of Interim Relief,
b. pleads in full the grounds which are summarised in paragraph 5 of section 5 of the Claim Form, cross referring to the evidence as appropriate.

7. The Defendant shall file and serve an Acknowledgment of Service and Summary Grounds of Resistance, including a response to the application for interim relief, no later than 14 days after service of the Statement of Facts and Grounds pursuant to paragraph 6 above.

8. The Claimant must file and serve an agreed authorities bundle, not less than 5 days before the date of the hearing for interim relief. 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.

9. Liberty to apply to vary or discharge this order on 2 days’ notice to the other party.

10. Costs in the case.

Reasons

1. The Claimant challenges the Defendant’s age assessment, concluded on 11 June 2024, which rejected his claimed age of 17 years and found that he was an adult aged 23 years. The Claimant claims that he was born on 17 October 2006, so he will turn 18 shortly. However, he will benefit from care leaver support if his claimed age is upheld.

2. I have granted an anonymity order because the Claimant is a putative child and an asylum seeker who claims to be at risk. In the circumstances, a departure from the general principle of open justice is justified.

3. The Claimant’s solicitor filed this claim protectively whilst the Defendant considered its position in the light of the new material (experts’ reports) commissioned by the Claimant. In those circumstances, the Claimant applied for a stay of these proceedings.

4. The Defendant has indicated in a letter dated 13 September 2024 that it will assess the veracity/reliability of the new material; decide whether it justifies reconsideration; and if so, conduct a full re-assessment of age. The Defendant supports the proposed stay.

5. The Claimant requests that, pending the outcome of the Defendant’s decision-making process, the Claimant should be removed from the adult accommodation in which he currently resides and returned to age-appropriate accommodation. The Defendant has refused this request on the grounds that the Claimant has not established a serious question to be tried, and the balance of convenience does not lie in favour of moving the Claimant to age-appropriate accommodation.

6. The proceedings cannot be stayed unless or until the issue of interim relief is determined. There are significant disputes between the parties on the legal test to be applied and the balance of convenience, which can only be properly resolved at a hearing for interim relief. The hearing ought to be expedited as it is undesirable and potentially unsafe for a minor to be accommodated with adults (if indeed that is the position here). It is not appropriate to defer the interim relief application until the Defendant has completed its current decision-making process because it takes so long for the Defendant to complete its age assessment procedures. I note that the Claimant arrived in the UK on 27 October 2022 and the Defendant’s final decision was not made until 11 June 2024.

7. The Claimant must file and serve a freestanding ‘Statement of Facts and Grounds’ which contains all the facts and matters and legal submissions on which he relies, and which sets out a much more detailed account of the alleged defects in the challenged decision than is currently set out in section 5 of the Claim Form. The application for urgent consideration and the grounds for interim relief are not formal pleadings upon which the Claimant can rely to supplement the pleadings in the claim form.

8. I consider that the Defendant will have sufficient time to file and serve its Acknowledgment of Service and Summary Grounds of Resistance 14 days after service of the Claimant’s revised ‘Statement of Facts and Grounds’ as the claim was issued for service on 10 September 2024 and the Defendant has already considered this case in some detail.