SH -v- London Borough of Barnet (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: CO/4872/2022

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

26 April 2023

Before:

The Honourable Mrs Justice Lang DBE

Between:

The King on the application of
SH

-v-

London Borough of Barnet

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
UPON the Defendant agreeing to treat the Claimant in accordance with his claimed age and date of birth, by accommodation and supporting him as a care leaver for the purpose of its ongoing duties under the Children Act 1989 until the determination of the application for judicial review;
AND UPON consideration of the documents lodged by the Claimant and the Acknowledgment of service filed by the Defendant;
Order by the Honourable Mrs Justice Lang DBE

  1. The application for permission to apply for judicial review is refused.
  2. 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 “SH”.
  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 2 above, save with the permission of a Judge.
  4. By consent, the claim is stayed to 3 February 2023.
  5. By consent, the Claimant is granted permission to file his Statement of Facts and Grounds by 3 March 2023.
  6. By consent, the Defendant is granted permission to file its Summary Grounds of Resistance by 17 March 2023.
  7. The Claimant is granted permission to rely upon his Reply.
  8. No order for costs.

Reasons

Preliminary matters

  1. I have granted an anonymity order. The Claimant is an asylum seeker who claims to be at risk. In the circumstances, a departure from the general principle of open justice is justified.
  2. The stay, for the purposes of pre-action discussion, and the consequent extension of time for filing the pleadings have been granted retrospectively, pursuant to the Claimant’s application dated 22 December 2022 and the Claimant’s letter dated 23 February 2023.
  3. The Claimant’s Reply is relevant to the issues in the claim.

Grounds

  1. The Claimant is a Kurdish national from Iran who claims to be presently 18 years of age and born on 29 December 2004 (in the Gregorian calendar). Following an assessment, the Defendant has found that his date of birth is 19 December 2002, and he is now aged 20.
  2. Whether someone is a child at a particular date is a question of fact to be determined by the Court: see R(A) v Croydon LBC [2009] UKSC 8. The test at permission stage is whether the factual material put before the Court, taken at its highest, raises an issue as to age which could not properly succeed on a contested basis: see R(FZ) v Croydon LBC
    [2011] EWCA Civ 59.
  3. The positive evidence of age relied on by the Claimant is thin. Set against that is the damning evidence that the Claimant saw the adult version of his shenasnameh (i.e. including a photograph which he could only have been given once he turned 15 years of age), before 19 December 2018. It follows that he must have been at least 18 years old when he entered the UK. I accept the analysis in the Defendant’s Summary Grounds at paragraphs 10 – 21.
  4. Other aspects of the Claimant’s account were also found to be contradictory or implausible, and so undermined his credibility.
  5. I consider that this was a case in which it was proper for the assessors to take into account the Claimant’s appearance, demeanour and interaction with them, as the evidence was striking. The assessors recognised that this evidence had to be considered along with other factors, and it was not given undue weight in the assessors’
    conclusions.
  6. There is no burden of proof in these cases, and no requirement of fairness that a person be given the benefit of the doubt. However, the assessors did give the Claimant the benefit of the doubt in concluding that he was only 19 years of age, when the information pointed to him being between 19 and 23 years of age.
  7. I do not consider that there was procedural unfairness or a failure to give the Claimant adequate support. The questioning was clear and the Claimant was given an opportunity to respond to any adverse points. He was assisted by an appropriate adult. He understood the interpreter and the interpreter understood him. He was informed that he could ask for breaks, and breaks were provided. It is apparent from the interview notes that he was generally fit and well during the interviews, and when he became upset, he was able to take breaks and was then ready to continue.
  8. In so far as there was any failure to comply with the ADCS Guidance, I do not consider that it led to unfairness, or adversely affected the investigation in any material way.