Claim number: CO/1232/2023
In the High Court of Justice
King’s Bench Division
25 September 2023
Mr James Strachan KC (sitting as a Deputy Judge of the High Court)
The King on the application of
London Borough of Newham
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
And upon the Claimant’s application to rely on a Reply to the Defendant’s Summary Grounds of Resistance and documents contained in a bundle of additional disclosure from the Defendant and the Defendant not objecting to that application
ORDER by Mr James Strachan KC (sitting as a Deputy Judge of the High Court)
- Until further order, the identity of the Claimant must not be disclosed and the Claimant shall be identified as “SX”.
- The Claimant is granted permission to rely on his Reply to the Defendant’s Summary Grounds of Resistance dated 27 April 2023.
- The Claimant is granted permission to rely on the documents contained the bundle entitled “Additional disclosure from the Defendant”.
- Permission to apply for judicial review is granted.
- The Claimant’s application for interim relief is refused.
- The claim is transferred to the Upper Tribunal (Immigration and Asylum Chamber) for determination.
- The Claimant seeks an order of anonymity pursuant to CPR39.2(4) on the basis that he is a putative unaccompanied young person and his asylum claim is pending and he has a reasonable grounds decision that he is a victim of modern slavery and in light of his stated experience in Sudan and Libya. In the absence of any objection from the Defendant and in light of what is stated, I am satisfied that it is appropriate to make an anonymity order.
- The Claimant seeks to rely upon a Reply and further documents disclosed by the Defendant. Again, in the absence of any objection from the Defendant and in light of the contents of the Reply (which provide a focused response to the Defendant’s Acknowledgement of Service) and the timing of the provision of the further documents disclosed, I am satisfied that permission should be granted to rely upon the Reply and the further documents disclosed.
- The application for permission for the claim to proceed is resisted by the Defendant. I consider the grounds of claim to be arguable and accordingly grant permission for the claim to proceed; both parties agree that it is appropriate in that event for the claim to be transferred to the Upper Tribunal for determination and I agree and make such an order
- The Claimant seeks interim relief pending determination of his claim requiring the Defendant to conduct an assessment of his needs under ss 23C and 24-24B of the Children Act 1989 in light of (amongst other things): the Defendant having previously exercised his discretion under s.23C and having accommodated the Claimant as a former relevant child, despite the Claimant not having been in care for 13 weeks prior to his birthday; the Claimant is need of support as a care leaver and he is unable to access college due to inflexible meal times; the Defendant recognised that he needed to be placed in NASS accommodation near Newham College given his enrolment there and his educational needs. The Claimant relies on the contents of his witness statement as to his current difficulties. The Claimant points out in his Reply that the application is based upon seeking to maintain the status quo in asking the Defendant to continue to exercise its discretion under s.23C and to accommodate the Claimant where, prior to the conclusion of the Defendant’s assessment, the Claimant was accommodated as an 18 year old for a total of 25 weeks and 6 days as a matter of discretion.
- I have considered the application in accordance with the principles in American Cyanamid as modified for public law purposes by BACONGO as to whether there is a serious issue to be tried and, if so, whether the balance of convenience favours the award of interim relief and on the basis that there is no requirement for the Claimant to show a strong prima facie case for interim relief to be granted. I consider that the Claimant has demonstrated that there is a serious issue to be tried, but I do not consider the balance of convenience favours the grant of interim relief in this particular case. The Claimant is (on his own account) now aged 18. The Defendant has advanced a proper basis for contesting the age based (as it is) on an assessment that was performed even if the correctness of that assessment is now under challenge. Whilst recognising the difficulties that the Claimant states he is facing, the Claimant’s interim relief is predicated on requiring the Defendant to exercise a discretion (the Claimant not having been in care for 13 weeks prior to what he states was his 18th birthday) rather than giving effect to a right under the relevant statutory provisions (for the reasons identified by the Defendant) and in all the circumstances I do not consider the balance of convenience favours imposing the order requested pending final determination of the Claimant’s age.