RBK -v- Home Secretary and another (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: AC-2025-MAN-000126

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

14 May 2025

Before:

His Honour Judge Pearce sitting as a Judge of the High Court

Between:

The King on the application of
RBK

-v-

Secretary of State for the Home Department

and

Lancashire County Council

Order

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

IT IS ORDERED THAT:

Anonymity

  1. There be substituted for all purposes in this claim, in place of reference to the Claimant by name, and whether orally or in writing, reference to the letters “RBX”.
  2. The Court file is to be retained by the Court and marked ‘Anonymised’. Pursuant to CPR 5.4C, a person who is not a party to these proceedings may obtain a copy of pleadings, a Judgement or Order from the Court records only if the pleadings, Judgment or Order has been anonymised such that the Claimant is referred to as RBX in those documents and his address or information from which his identity or address could be discerned has been removed.
  3. Reporting restrictions apply so as to the disclosing of any information that may lead to the subsequent identification of the Claimant. In particular, disclosure of the Claimant’s name or address is prohibited.

Litigation friend

4. Pursuant to CPR 21.2(3), the Claimant is permitted to conduct proceedings without a litigation friend.

5. The Claimant has liberty to apply under [4].

Interim relief

6. Pending final determination of this claim, the Claimant shall be accepted as his claimed age and shall be provided with accommodation and support commensurate with that claimed age, pursuant to sections 17 and 20 of the Children Act 1989.

7. Without prejudice to paragraph [6] of this Order and pursuant to section 95 of the Immigration and Asylum Act 1999, the Defendant shall, as soon as reasonably practicable and in any event no later than 14 days from the date of this Order, disperse the Claimant to the local authority area of the Interested Party.

8. The Defendant shall notify the relevant local authority (whether the Interested Party or any other local authority) of this Order so that the relevant local authority can provide services on an interim basis under the Children Act 1989.

9. There be liberty to the parties (including the Interested Party) to apply to give effect to paragraphs [6] to [8] of this order.

Permission

10. The Claimant is granted permission to apply for judicial review.

11. The claim shall be transferred to the Upper Tribunal (Immigration and Asylum Chamber) for determination of the Claimant’s age.

12. The Upper Tribunal shall make directions for the future management of the claim.

Costs

13. Costs in the case.

Reasons

  1. Anonymity
    a. The Claimant; seeks an anonymity order. Given that he is, on his case, arguably under the age of 18, I consider that such an order is appropriate in accordance with usual practice.
  2. Litigation Friend
    a. The Claimant seeks an order dispensing with the need for a litigation friend. Given (a) the relatively straight forward nature of the issues in the case and (b) the Claimant’s solicitor’s assessment of the Claimant’s capacity to deal with the case, I am satisfied that such an order is appropriate.
  3. Background
    a. The Claimant is a South Sudanese national. It is his case that he was born on 4 March 2008 and is therefore now 17 years old (though 16 when the claim was issued).
    b. He arrived in the UK on 20 August 2023 and sought asylum. He was subject to an age assessment report from the National Age Assessment Board (NAAB) dated 13 November 2024 which concluded that he was 20 years old. He was then moved from children’s accommodation provided by the Interested Party to hotel accommodation.
    c. The Claimant seeks permission to bring judicial review proceedings and interim relief by way of order that he be treated as if under the age of 18. Given that the threshold criteria for the grant of permission are relevant to the issues that arise in respect of interim relief, I consider permission first.
  4. Application for permission
    The Claimant challenges the Defendant’s determination of the Claimant’s age on the following grounds:
    i. Ground 1- that the age assessment was factually wrong;
    ii. Ground 2 – that the Defendant failed to take account of relevant considerations and/or took account of irrelevant considerations and/or failed to comply its published guidance and/or made irrational conclusions;
    iii. Ground 3 – that the age assessment was procedurally unfair;
    iv. Ground 4 – that the Defendant irrationally concluded that further evidence was not significant new information that justified reassessment.
  5. Ground 1.
    a. It is common ground for the purpose of determining the duties of public authorities that an age assessment is a fact finding exercise in which, where there is a conflict, a court considering an application for bringing judicial review proceedings may grant permission if the material before the court could persuade a court at a contested factual hearing that the age assessment was materially wrong.
    b. The Defendant points to the fact that the Claimant can show no conclusive evidence that he is under the age of 18. Whilst this is correct, it misses the point that it is not for the Claimant to prove his case, but rather a matter for the assessment of the fact finding tribunal and this involves considering the material as a whole.
    c. The Claimant relies upon several witness statements from people who know him and who have professional experience of dealing with young people in support of the argument that he is in fact under the age of 18. That material is not on its face lacking in credibility. Whilst the Defendant itself relies on an age assessment that may be credible and it is apparent that the court may ultimately be persuaded that the age assessment process is more persuasive than the impressions that others have gained of the Claimant, there is nothing inherently incredible in the Claimant’s evidence nor that the material to which the Defendant refers points overwhelmingly in the direction that he is in fact over 18.
    d. Moreover, I am not perused that the gaps and/or incontinences identified in the Claimant’s account at paragraph 23 of the summary grounds of defence are such as to undermine the arguability of his case that the assessment was wrong.
    e. It follows that the material before the court taken at its highest could support the conclusion that the age assessment was wrong and that the Claimant was and is under the age of 18.
  6. Ground 2
    a. In essence, the Claimant contends that the Defendant failed to have proper regard to the implications of his being a victim of trafficking in its approach to his credibility and/or to evidence supporting his account (including that of professionals). Further, it is said that the Defendant gave undue weight to the initial assessment of the Claimant’s age by border force officials and to his engagement in social media which was said to be inconsistent with his later account to he Defendant.
    b. On an issue such as age assessment where the court is concerned with the arguability of a factual determination and where procedural fairness is not the primary consideration, it may be argued that the issues raised by the Claimant in ground 2 are really simply a restating of ground 1 and add little to it. But I see force in at least some of the suggestion that the Defendant has arguably given inappropriate weight to the material before her and this ground is arguable.
  7. Ground 3
    a. The Claimant argues procedural unfairness on the basis that the “minded to” procedure was in essence oppressive; that the Defendant used an interpreter whose conduct had been the cause of the original challenge that led to the NAAB assessment; and that the Defendant placed undue weight on the Claimant’s physical appearance and demeanour.
    b. Again this arguably adds little to ground 3 but I must express some surprise at the use of the same interpreter as had been the subject of earlier challenge and I consider the ground to be arguable.
  8. Ground 4
    a. The Claimant contends that the Defendant refused to treat the additional information, namely witness statements as to the Claimant’s age, as “significant new evidence” and that this is inconsistent with the definition in section 56(5) of then Nationality and Borders Act 2022.
    b. In its summary grounds of defence, the Defendant concedes that the pro forma explanation of the treatment of the new information did not contain the “New Information Decision” that was included with the summary grounds of defence and that this was an error. However it defends the decision in substance on the grounds that it was not irrational to conclude that this was not significant new evidence.
    c. Given my conclusion that it is arguable that the decision on the Claimant’s age assessment was flawed on the totality of the material before the Defendant, I do not see that anything is added by this ground, since the additional information referred to is part of the totality of the evidence that leads me to consider that ground 1 is arguable.
  9. Delay
    a. The Defendant contends that, even if the Claimant’s case is arguable, permission should be refused because of the delay in bringing this claim. Delay is of course inimical to good public administration. That is as much true of delay in challenging decision making as it is true of delay in the decision-making itself.
    b. This claim was filed on the last day prior to the expiry of the time limit for bringing a claim and inevitably this apparent delay in issue leads to a question as to whether the claim was issued promptly pursuant to CPR54.5.
    c. However, having considered the witness statement of Ms Radhi Shah, I am not persuaded that the Claimant can be criticised for any more than a minor part of the delay in bring this claim. I do not consider this to be a case where a failure to act promptly should lead to a refusal of permission.
  10. Conclusion on permission
    a. It follows that I consider grounds 1, 2 and 3 of the Claimant’ application for permission to bring judicial review proceedings to be arguable. In the light of my conclusion on ground 1, my conclusion on other grounds is academic because in any event the grant of permission would lead to transfer to the Upper Tribunal for a fact-finding hearing. But given that I consider that there are arguable procedural failings on grounds 2 and 3, I grant permission on all three grounds.
    b. In accordance with the Claimant’s application and following the usual procedure in such cases, I will transfer the case to the Upper Tribunal for a fact-finding hearing and leave the question of further case management to the Upper Tribunal.
  11. Interim relief
    a. It is common ground that (a) the test for the grant of interim relief is the American Cyanamid test adapted for the public law context and that (b) if (as I find to be the case) the Claimant makes out the grounds for the grant of permission, he show the relevant triable issue.
    b. Accordingly the court is concerned with the balance of convenience/justice. In this respect, I bear in mind the decision of Fordham J in R (KRA) v Cheshire East Council [2024] EWHC 575.
    c. The particular issues which arise here are:
    i. The suitability of the Claimant’s accommodation;
    ii. The Claimant’s particular vulnerabilities and needs;
    iii. The appropriateness of housing the Claimant with adults if he is in fact under 18;
    iv. The appropriateness of housing the Claimant with children if he is in fact over 18;
    v. Public resource implications;
    vi. The effect of the Claimant turning 18 before the fact finding issue is concluded.
    vii. The strength of the Claimant’s case.
    d. The Claimant is housed with adults, albeit in his own room. The evidence of the Claimant and Ms Radhi Shah suggest that he has had some difficulty with his accommodation including an occasion of being locked out and that he feels that he lacks support in a context where he is at risk of isolation. As the Defendant notes, this may be seen as part of the obvious difficulty of his adjustment to new circumstances rather than as a particular feature of his accommodation, but it would appear to me that accommodation with adults will almost invariably be less supportive than accommodation as an under 18 year old where the provision of support is seen as integral to the provision of accommodation.
    e. The Claimant does not appear to have any particular vulnerability or need, though his experiences may have affected his capacity to cope generally and he refers to some negative feelings.
    f. It is inevitable that housing a child with adults will increase the risk of exposure to inappropriate behaviour and experience, albeit that there is little evidence of any particular problems here.
    g. Equally, if an adult is housed with children, that increases the risk of exposing those children to inappropriate behaviour and experience. However no concern has been expressed about the Claimant in this case and in particular no safeguarding issues have been raised.
    h. Although I have no direct evidence on this issue, accommodating the Claimant as a child will inevitably increase the burden on the public purse. That is the corollary of the additional support that is provided in accommodation for those under 18.
    i. If in fact the Claimant is currently under the age of 18 but the fact finding determination is not completed until he is over 18, that exposed him to the risk that he will not be able to access public services as he should have been able to.
    j. I accept that, in an extreme case, the strength of the case either for or against the Claimant being over the age of 18 may inform the ultimate decision on the balance of justice. However, as Fordham J noted in KRA, the authorities do not support the conclusion that there is some higher threshold for the grant of interim relief merely because it will involve a mandatory order requiring public authorities to take action (and therefore to incur cost) in complying with an order for interim relief. Certainly this is not a case where the strength or weakness of the case can be said to point in either direction in determining the interim relief application.
    12.Conclusion on interim relief
    a. There are few strong pointers in either direction on the balance of justice in this case. In those circumstances, I accept the analysis of Fordham J in KRA, following the decision of other cases cited in paragraph 31 of his judgment that “ that “The risk of injustice, in my judgment, is substantially greater from the Claimant continuing to be dealt with as an adult alongside adults and then be subsequently vindicated at the substantive hearing. It outweighs the risk of injustice to the [relevant local authority] from an order impacting on its limited resources but the [Defendant] subsequently then being vindicated at the substantive hearing.”
    b. I therefore accept that the court should on the facts of this case grant interim relief.
    c. Given that the Defendant itself does not bear the statutory burden of accommodating the Claimant if he is under the age of 18, I agree that the appropriate order is one which identifies how the Claimant is to be accommodated. The Interested Party was the relevant local authority prior to the intervention of the arguably determination of the NAAB. It is by far the most obvious local authority to house him now, as it would no doubt have been liable to do but for the determination of the NAAB.