Case number: CO/850/2023
In the High Court of Justice
King’s Bench Division
28 June 2023
Kate Grange KC sitting as a Deputy Judge of the High Court
The King on the application of
London Borough of Islington
Secretary of State for the Home Department (Interested party)
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 Kate Grange KC sitting as a Deputy Judge of the High Court
- The Claimant is an asylum seeker, and the claim includes detail relevant to his asylum claim. Pursuant to CPR r.39.2(4), the Court is satisfied that it is appropriate that his name and address shall be anonymised on the court record, and that this matter shall be known as R (RH) v London Borough of Islington.
- The Claimant’s application to reply to the Acknowledgement of Service dated 29 March 2023 is granted.
- The application for permission to apply for judicial review is granted on Ground 1 only.
- The claim under Ground 1 shall be transferred to the Upper Tribunal (Immigration and Asylum Chamber) for directions and hearing.
- The application for permission to apply for judicial review is refused on Grounds 2, 3, 4 and 5.
- The application for interim relief is granted and the Defendant shall within 14 days provide the Claimant with accommodation and support consistent with his claimed age, pending determination of age by the Upper Tribunal (Immigration and Asylum Chamber) or further order.
- Liberty to the parties to apply to vary or discharge paragraph 6 of this
order on 3 days notice.
- Costs reserved.
- The core issue in this case arises under Ground 1 namely whether the Defendant’s age assessment was wrong. Applying the Court of Appeal guidance in R (FZ) v Croydon LBC  EWCA Civ 59 I am unable to conclude that the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing and therefore I grant permission, but order that the case is transferred to UTIAC which is the appropriate court for making an assessment of that issue. There is evidence supporting the Claimant’s account about his age, including the evidence of Mr Matar and Ms Georgara and some of the factors which were taken into account by Islington in its age assessment appear dubious. Further there may be reasons to be cautious about the quality of the information given by the Maltese authorities given the lack of procedural safeguards when that information was obtained. Much is likely to depend on an assessment of the credibility of the Claimant which UTIAC will be best placed to assess.
- I refuse permission on the other grounds namely Grounds 2, 3, 4 and 5 which raise alleged public law errors in the decision which was made on 29 November 2022. Although the process by which the decision was taken was not ideal, I am not persuaded that any of the errors alleged by the Claimant to have been made by the Defendant amount to errors of law which could lead to a quashing of the decision. As held by Swift J in R(HAM) v Brent LBC  EWHC 1924 at paragraph 32 the important obligation on the local authority is one of reasonable
investigation and a fair interview will permit the person who is being assessed a genuine opportunity to explain his position to answer questions that may be put to him and to respond to matters adverse to his case. Looking at the process which was followed in the round, I am not persuaded that there was a failure to comply with those
important obligations and the Claimant had a fair opportunity to address, in particular, the evidence from Malta. In addition, grounds 2, 3, 4 and 5 are now largely academic in circumstances where I have granted permission on Ground 1 and the matter will be referred to UTIAC to determine the Claimant’s age (see the observations of Swift J at paragraphs 54 and 55 of R(HAM) v Brent LBC).
- On the application for interim relief, I note that the Claimant was provided with accommodation and support by the Defendant consistent with his claimed age between 3 May 2022 and 30 November 2022. As made clear in the Claimant’s Reply to the Defendant’s Summary Grounds of Defence what he now seeks pending a final determination of his claim is accommodation commensurate with his claimed age of 18 which would be accompanied by the support applicable to a care-leaver. In circumstances where I have granted permission on Ground 1, I am persuaded that it is appropriate to grant the interim relief sought pending the determination by UTIAC of the Claimant’s age. When balancing the harm to the Claimant that would be caused if interim relief was not granted and the claim later succeeds against the harm to the Defendant if interim relief is granted and the claim later fails (see the Administrative Court Guide at paragraph 16.6.1), I conclude that the balance comes down in favour of the Claimant. If he is not provided with age-appropriate accommodation and support pending the determination by UTIAC the Claimant could miss out on support at a critical time which he is entitled to, should UTIAC subsequently decide in his favour. Further the Defendant has not raised any persuasive arguments why such relief should not be granted in these circumstances in its summary grounds of defence, it having addressed the question of interim relief extremely briefly at paragraph 29 of those summary grounds. Applying the test for ordering mandatory interim relief as discussed in R (Nolson) v Stevenage Borough Council  EWCA Civ 379 I am satisfied that it is appropriate to order such interim relief in the present case.