FZ, R (on the application of) v London Borough of Croydon

In an age-assessment judicial review claim, permission should normally be granted unless the claimant’s factual case, taken at its highest, could not properly succeed at a contested fact-finding hearing. The court must ultimately determine the objective fact of age. A local authority must give a person a fair opportunity to answer important provisional adverse points before reaching an age assessment. This need not require a formal minded-to letter in every case. A child or vulnerable person should also have the opportunity to have an appropriate adult present. Where permission is granted for a factual determination of age, transfer to the Upper Tribunal may be appropriate.

The appellant was an unaccompanied asylum seeker from Iran. He claimed to have been born in 1993. The local authority assessed him as two years older, following an initial interview and reviews which did not accept a vaccination card as proof of his age.

He sought judicial review on needs, accommodation and age-assessment grounds. The first two matters were resolved before an oral permission hearing. A deputy High Court judge refused permission on the age issue, concluding that there was no realistic prospect that a factual hearing would find the appellant younger than assessed.

The appeal raised the required fairness of the assessment process, including provisional adverse findings and an appropriate adult, and the correct threshold for permission where the court must determine the claimant’s age as a fact.

1. Appeal allowed. Permission was granted for judicial review to determine the appellant’s age on evidence. His factual case, taken at its highest, could properly succeed at a contested hearing. His account was reasonably consistent, the apparent age/date inconsistency was capable of explanation, and the vaccination card was not obviously forged. The local authority’s assessment of appearance, demeanour and general credibility did not require the court to reach the same conclusion.
2. The court approved the practical permission threshold formulated by Holman J in R (F) v Lewisham London Borough Council [2009] EWHC 3542 (Admin). The question is whether the material raises a factual case which, taken at its highest, could not properly succeed at a contested factual hearing. If it could not, permission should be refused. Otherwise permission should normally be granted, subject to discretionary matters such as delay.
3. A fair, Merton-compliant assessment requires the assessor to give the applicant a proper opportunity to answer important provisional matters adverse to the claimed age. Those matters may include absent documents, inconsistencies, and a provisional view that the applicant is untruthful. Fairness does not invariably require a formal minded-to letter after the interview, but merely presenting final conclusions after the assessors have withdrawn to decide them is inadequate. The procedure in this case did not meet that requirement.
4. The appellant should also have been offered an appropriate adult. He claimed to be a child and was known to have mental health difficulties. This lapse, together with the failure to put provisional adverse findings, contributed to the decision to grant permission, although the principal reason was the arguability of the factual case.
5. Under section 31A(3) of the Senior Courts Act 1981, the claim was transferred to the Upper Tribunal. The Administrative Court will normally decide permission before considering transfer. The Upper Tribunal was a suitable forum for the fact-finding hearing and was to give further directions.

• Court of Appeal (Civil Division) Allowed the appeal, granted permission for judicial review, and transferred the claim to the Upper Tribunal: [2011] EWCA Civ 59.
• Administrative Court A deputy High Court judge refused permission to challenge the local authority’s age assessment after an oral permission hearing.