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

On an application for permission to challenge a local authority’s age assessment on factual grounds, the court should consider whether the claimant’s case, taken at its highest, could properly succeed at a contested factual hearing. Permission should normally be granted where it could, subject to discretionary considerations such as delay. The authority’s assessment does not bind the court, and its general credibility assessment alone cannot justify refusing permission.

Fairness requires an opportunity to answer important adverse points while the assessment remains provisional. A formal subsequent letter is unnecessary if that opportunity is effectively provided during the interview. Children and other vulnerable interviewees should have the opportunity to have an appropriate adult present. Suitable factual age-assessment claims may be transferred to the Upper Tribunal.

The appellant was an unaccompanied asylum seeker from Iran who claimed to have been born in December 1993. The United Kingdom Border Agency accepted that date and referred him to the London Borough of Croydon for child welfare services. Croydon’s social workers assessed him as two years older. Subsequent reviews maintained that assessment despite his production of a vaccination card supporting his claimed date of birth. He also had mental health difficulties associated with post-traumatic stress disorder.

The appellant sought permission to bring judicial review proceedings challenging his needs assessment, accommodation and assessed age. The first two issues were resolved for the permission hearing. James Dingemans QC, sitting as a deputy High Court judge, refused permission on the age issue because he considered that the appellant had no realistic prospect of establishing a younger age at a factual hearing.

The appeal concerned the opportunity to answer provisional adverse findings, the opportunity to have an appropriate adult present, and the correct approach to permission where the court would ultimately determine age as a disputed fact.

1. The appeal would be allowed and permission to bring judicial review proceedings to determine the appellant’s age granted. The appellant’s factual case, taken at its highest, could properly succeed at a contested hearing. The procedural deficiencies also contributed to that conclusion (paras 25–30).

2. Age was an objective fact ultimately for the court to determine, following R (A) v Croydon London Borough Council [2009] 1 WLR 2557. An assertion that the authority was wrong did not itself justify permission. The claimant had to present a properly arguable factual case in light of the evidence, the assessment and other relevant circumstances. Building on the formulation in R (F) v Lewisham London Borough Council, the court should refuse permission where the factual case, taken at its highest, could not properly succeed at a contested hearing. Otherwise permission should normally be granted, subject to discretionary considerations such as delay (paras 4, 6–9, 26).

3. Under the guidance in R (B) v Merton London Borough Council, an applicant had to receive a fair opportunity to answer important adverse points while the decision remained provisional. Where that opportunity was omitted, the authority had to show that it would have made no difference. Fairness did not invariably require a subsequent formal letter. Interviewers could discuss and record provisional conclusions, return to put the adverse points to the applicant, and consider the answers before deciding. That suggested procedure was illustrative rather than mandatory (paras 20–21).

   Presenting completed conclusions for acknowledgement did not provide that opportunity. The conclusions also omitted important adverse reasons. The subsequent reviews did not cure the deficiency, and an apparent inconsistency between age and date of birth was capable of explanation by reference to the Iranian calendar (para 22).

4. The appellant should have been offered the opportunity to have an appropriate adult present. He was accepted to be a child at the initial assessment and was known to have mental health problems. The omission was relevant to whether permission should be granted (paras 23–25).

5. The appellant’s account was reasonably consistent and the vaccination dates supported his claimed birth date. The social workers’ opportunity to observe appearance, demeanour and credibility deserved consideration, but their judgments did not bind the court. General credibility assessed by others was alone insufficient to refuse a factual hearing (para 29).

6. The claim would be transferred to the Upper Tribunal under section 31 A(3) of the Senior Courts Act 1981. Its judges had relevant experience of disputed ages in asylum claims. The Administrative Court would normally determine permission before considering transfer, although permission could also be transferred. It should leave directions governing proceedings after transfer to the Upper Tribunal, including whether to hold a rolled-up hearing (paras 31–32).

• Court of Appeal (Civil Division): In [2011] EWCA Civ 59 , allowed the appeal, granted permission to bring judicial review proceedings to determine age, and transferred the claim to the Upper Tribunal.
• High Court, Administrative Court: On 26 November 2010, James Dingemans QC, sitting as a deputy High Court judge, refused permission to challenge the age assessment. The needs-assessment and accommodation issues had been resolved for that hearing.