October 1, 2024

SMF -v- Derby City Council (anonymity order)

Administrative Court Civil High Court King's Bench Division Anonymity Order

Case number: AC-2024-BHN-000210

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

In the matter of an application for judicial review

27 September 2024

Before:

His Honour Judge Tindal

Between:

The King
on the application of
SMF

-v-

Derby City Council

Notification of the Judge’s decision on the application for permission after consideration of the documents lodged by the Claimant and Defendant

Order

1. Pursuant to CPR 39.2(4)) and the Court’s inherent jurisdiction:

a. No person shall identify the Claimant in connection with these proceedings. The Claimant shall be referred to as SMF.

b. A non-party may not obtain or inspect a copy of any Statement of Case or any other document filed with the Court and to which a non-party may have access pursuant to CPR 5.4A-D or otherwise, unless it has been produced or edited so as to comply with para.1 of this Order and/or any subsequent direction made by the Court.

c. Anyone affected by the terms of this Order shall have permission to apply to vary or set aside any part of it, on 3 working days’ notice.

2. The Claimant’s application for urgent consideration is refused.

3. The Claimant’s application for permission for judicial review is refused.

4. The Claimant’s application for interim relief is refused.

5. The Claimant shall pay the Defendant’s costs of its Acknowledgment of Service and Summary Grounds. Since he has the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the sum payable will be determined upon any application under Reg.16 of the Civil Legal Aid (Costs) Regulations 2013.

Reasons

1. This judicial review challenges the Defendant’s age assessment on 5th June 2024 that the Claimant, a Syrian national who arrived in the UK in May 2024 and has claimed asylum, was an adult. The Claimant claims to be 16 years old (asserted DOB 12/08/2008). However, the Claimant’s solicitors are content to proceed without a Litigation Friend. Nevertheless, given the asylum claim, I make an Anonymity Order.

2. The legal framework and principles are very familiar. The key cases are R(C) v Merton LBC [2003] EWHC 1689, R(A) v Croydon LBC [2009] UKSC 8, R(FZ) v Croydon LBC [2011] EWCA Civ 59, R(HAM) v Brent LBC [2022] EWHC 1924 (Admin) and all were summarised in R(SB) v KCLBC [2023] EWCA Civ 924: There are two distinct bases of challenge to age assessments:

2.1 Firstly, the Court itself can assess age of a putative child as a question of fact under s.20 Children Act 1989 (‘CA’): R(A)). When considering permission for judicial review, the Court should ask whether the evidence raises a factual case which at its highest, could not succeed in a contested factual hearing. If so, permission should be refused. If not, the case should be transferred to the Upper Tribunal for directions/hearing: R(FZ). However, as the Court of Appeal emphasised at [6], the threshold falls to be assessed on all the material before the Court, not simply a claimant’s bare assertion that he is a child.

2.2 Secondly, it remains strictly open to a claimant in judicial review proceedings to challenge an age assessment on conventional public law grounds, as in Merton. But as explained in R(HAM), the commonly-made distinction between ‘Merton-compliant’ and ‘short-form’ age assessments is legally irrelevant: what matters is that there is a reasonable investigation and fair process on the facts; and that if an authority is ‘minded to find’ that the applicant is not credible, they should be given an opportunity to address those credibility concerns before a final assessment is made. There is no ‘one-size fits all’ approach on the numbers of social workers assessing or appropriate adults being present. In an ‘obvious case’ a ‘reasonable enquiry’ may be brief, but that less obvious cases require fuller investigation. Moreover, as Swift J emphasised in R(HAM) at [32]: “As Stanley Burnton J stated in Merton, if the case is an obvious one what is required by way of reasonable enquiry may be brief. There will be some instances where lawful decisions can be taken on the basis of appearance and demeanour alone.” However, as stressed in R(SB), it will rarely be appropriate to ‘hive off’ a public law challenge. An arguable public law lapse might support an application for permission, but if it is granted, the whole case should be transferred to the Upper Tribunal.

3. In this case, as is common, the Claimant runs both arguments. Ground 1 contends the assessment of the Claimant as an adult was factually wrong. Ground 2 is a conventional public law challenge suggesting the Defendant’s very brief assessment was inadequate and irrational, in particular, the ‘usual complaint’ in this type of case that it was not Merton-compliant as based on appearance and demeanour. Of course that misses the point, which is whether or not it was an ‘obvious case’.

4. In the present case, the Home Office on 24th May 2024 undertook a detailed age assessment which concluded that there was an obvious case on the Claimant’s appearance and demeanour that he was at least 24 years old. Provision of photographs of the Claimant taken in June 2024 by the Defendant are not of course evidence for the Court to make its own assessment (at this stage) but assist with understanding the Home Office’s detailed analysis. The Defendant’s decision of 5th June was undertaken by two experienced social workers who reached a similar conclusion that it was an ‘obvious case’ that the Claimant was an adult, taking into account he said he was 16 when they assessed him in June 2024 when he now says he was 15.

5. This is an entirely rational consideration to take into account, undermines the Claimant’s credibility and pulls the rug from under Ground 2. The cumulative expert assessment also demonstrates that the Defendant reached a perfectly lawful and rational conclusion that the Claimant was and is an adult. Moreover, even with the evidence taken at its highest for the Claimant, this case could not properly succeed at a factual hearing before the Upper Tribunal either. I therefore refuse permission to claim judicial review, although I resist the strong temptation to certify the claim totally without merit, although on all the evidence it comes very close indeed to that threshold.

6. This case should never have been marked as appropriate for urgent consideration. Whilst I did briefly triage its urgency when referred it was clear it was not urgent. It does not assist the Court – nor solicitor firms’ reputations – for judges to be diverted from genuinely urgent cases by weak ones dressed up with spurious assertions of urgency. As the Claimant is publicly-funded, the usual costs order applies.