K, R (on the application of) v Birmingham City Council

A local authority assessing age under the Children Act 1989 is not legally bound by an immigration tribunal’s earlier age finding where it was not a party to those proceedings and did not have a proper opportunity to present its evidence. The tribunal’s finding is relevant evidence, and the authority must consider both the finding and the reasoning supporting it, but must make its own conscientious assessment. The court should grant permission to challenge an age assessment where the claimant’s case, taken at its highest, could properly succeed at a contested factual hearing. The assessment process need not resemble a trial, but must satisfy minimum standards of enquiry and fairness.

The claimant, whose age had been disputed in immigration proceedings, relied on an Immigration Judge’s finding that his date of birth was 15 May 1994. Birmingham City Council had previously assessed him as over 18 and continued to treat him as an adult after considering the immigration decision.

The claimant sought judicial review on the preliminary issue whether the Council was legally bound to accept the Immigration Judge’s finding, or at least could depart from it only for cogent reasons. The Council contended that it had to undertake its own assessment under sections 17 and 20 of the Children Act 1989. The court also had to decide whether permission should be granted to challenge the lawfulness of the Council’s reassessment.

1. The preliminary issue. The Council was not legally bound to accept the Immigration Judge’s finding as to age. The proceedings involved different parties, statutory frameworks and duties. The Council had not been able to make the representations it could have made had it been a party to the immigration proceedings.
2. The finding was not res judicata or a judgment in rem against the Council. The Council was required to make its own assessment under sections 17 and 20 of the Children Act 1989. It could not simply adopt or rubber-stamp the Immigration Judge’s conclusion.
3. The earlier decision nevertheless constituted relevant material. The Council had to consider not only the finding but also the Immigration Judge’s reasoning and the process by which it had been reached. The weight to be given to it depended on the statutory scheme, the parties’ opportunity to be heard, the nature of the evidence, the degree of factual overlap and the basis of the earlier decision.
4. The Immigration Judge’s reasoning was open to reasonable criticism. The age finding principally depended on Dr Birch’s report, while the claimant’s credibility had been treated as severable despite being materially relevant to the assessment of age. The earlier finding therefore could not be regarded as plainly sound and flawless.
5. Following R (FZ) v London Borough of Croydon [2011] EWCA Civ 59, permission should be granted where the claimant’s factual case, taken at its highest, could properly succeed at a contested factual hearing. The April 2010 record arguably failed to demonstrate a proper reassessment and differed materially from the later assessment relied upon by the Council.
6. Permission was granted to challenge the Council’s age decision. The interim arrangements recognising the claimant as a child and providing the relevant Children Act 1989 entitlements continued, subject to 48 hours’ notice of a material change. Permission to appeal was refused.

The proceedings were commenced against the Secretary of State for the Home Department. The Secretary of State accepted the Immigration Judge’s age finding and conceded the claim against her. By order dated 30 July 2010, Foskett J directed a rolled-up hearing concerning the Council’s decision. This court determined the preliminary legal issue, granted permission to challenge the Council’s decision and refused permission to appeal.