HBH, R (on the application of) v Secretary of State for the Home Department

Permission for judicial review may be granted where the claimant raises a serious and arguable issue about the legality of a public authority’s decision, even where related issues may also be raised in criminal proceedings. A decision to report a person who claims to be a child for possible prosecution may be a grave step because it can predictably lead to prosecution and sentence. The court may extend time where the claim forms part of wider generic litigation and the defendant was aware, in general terms, of the legality issues. The existence of an alternative remedy does not automatically prevent judicial review where the public-law issue is complex and more suitable for determination by the Administrative Court.

The claimant, who was later accepted to have been aged 17 when he arrived in the United Kingdom and claimed asylum, was age-disputed, detained and reported to the police for a possible offence under section 2 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. He pleaded guilty in the magistrates’ court and was sentenced by the Crown Court. He later sought judicial review of the Secretary of State’s policy and reliance on the summary age assessment in referring him for prosecution.

The Secretary of State opposed permission on grounds of delay and argued that the issues should be dealt with by the magistrates’ court under section 142(2) of the Magistrates’ Courts Act 1980. The central issues were whether the referral was arguably contrary to departmental guidance, whether judicial review was appropriate despite the alternative criminal procedure, and whether time should be extended.

1. Permission and arguability. The court was deciding permission, not the substantive merits. The claimant had to show an arguable case, but the existence of an arguable case did not remove the court’s general discretion whether to grant permission. The proposed challenge raised a serious and arguable issue because reporting a person who claimed to be a child for possible prosecution was a significant step which could predictably lead to prosecution and sentence.

2. Guidance and age assessment. The September 2004 guidance recognised particular considerations in cases involving minors, including the need to consider the circumstances case by case and, where necessary, refer the matter to a chief immigration officer and the local prosecution unit. It was arguable that the Secretary of State had breached those requirements by treating a summary age assessment as determinative for referral to the police and Crown Prosecution Service.

3. Alternative criminal remedy. The claimant could raise substantial arguments before the magistrates’ court under section 142(2) of the Magistrates’ Courts Act 1980, including the alleged failure properly to inquire into age and the possible relevance of the defence under section 2(4)(c) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. That did not justify refusing permission. The legality of the Secretary of State’s conduct involved complex questions of public law and policy which were better determined by the Administrative Court. The approach in Adimi and Others [2000] 3 WLR 434 was not directly applicable on its facts, but supported the conclusion that judicial review could be appropriate notwithstanding the criminal proceedings. The passage relied on in Kebiline [1999] 3 WLR 972 was considered but did not alter the conclusion.

4. Delay and orders. Although the court had considerable sympathy with the delay objection, the claim formed part of generic litigation of which the Secretary of State had been aware. The generic issues were sufficiently broad to include referral by immigration authorities for prosecution under the 2004 Act. The court therefore extended time if necessary and granted permission on the challenge to the referral policy. Permission was also granted on the conceded detention claims solely so that damages could be assessed if not agreed.