AK, R (on the application of) v Secretary of State for the Home Department & Anor

At the permission stage of an age-assessment judicial review, the court should ask whether the evidence, taken at its highest, could properly succeed at a contested factual hearing. If it could, permission should normally be granted, subject to discretionary factors. A Merton-compliant assessment is not undermined merely because no appropriate adult attended, where the procedure was fair and caused no material disadvantage. A person qualifies as a former relevant child under the Children Act 1989 only if actually looked after and accommodated under the statutory functions. A general practitioner may diagnose mental illness, including PTSD, without psychiatric qualification. Detention contrary to a published policy concerning mentally ill persons was sufficiently arguable to justify permission.

The claimant, an Afghan national, renewed an application for judicial review concerning Leicester City Council’s age assessment, which concluded that he was over 18, and the Secretary of State’s decision to detain him pending intended removal to Greece. He argued that he had been a child when detained, that the assessments were factually and procedurally defective, and that his detention breached policies concerning children, mentally ill persons and persons with independent evidence of torture.

The claim followed earlier age assessments by Essex County Council, interim relief preventing removal, withdrawal of the proposed return to Greece, and a further assessment by Leicester. The central issues were whether the age-assessment challenges met the permission threshold, whether the Council claim remained justiciable, and whether the detention challenge based on mental illness was sufficiently arguable.

1. Age-assessment threshold. Applying the approach in R (FZ) v London Borough of Croydon [2011] EWCA Civ 59, the court asked whether the material, taken at its highest, could properly succeed at a contested factual hearing. The evidence gave no real prospect of a conclusion that the claimant was under 18 in August 2010. The Leicester assessment was careful, methodical, well-reasoned and Merton compliant. The evidence of Dr Birch was weakened by the methodological criticisms identified in R (on the application of R) v London Borough of Croydon [2011] EWHC 1473 (Admin).
2. The presence of an appropriate adult was best practice but was not required by the Merton guidelines. Its absence did not, by itself, justify permission where the claimant had legal representation, was offered the opportunity to bring a friend, and suffered no material disadvantage.
3. Academic Council claim. The claimant could not qualify as a former relevant child under section 23C(1) of the Children Act 1989 because Leicester had never accommodated him in exercise of its social-services functions. The court could not treat him as having been accommodated when that had not occurred. The reasoning in R (TG) v Lambeth [2011] EWCA Civ 526 did not assist. The case fell within R (M) v Hammersmith and Fulham LBC [2008] 1 WLR 535.
4. Detention and age. Even assuming that the claimant’s age was a precedent fact for the detention challenge, there was no real prospect of proving that he was under 18. Alternatively, reliance on the apparently Merton-compliant Essex assessment was not unreasonable, careless or unfair. Permission was refused on the age ground.
5. Mental illness. A medical practitioner need not have psychiatric qualifications to diagnose depression or PTSD. The GP’s evidence, the claimant’s treatment and the recorded risk of self-harm established a sufficiently arguable case that detention may have breached the applicable policy. Permission was granted on that ground alone. The allegation of torture was unsupported by independent evidence because the GP’s account derived solely from the claimant.

Permission to challenge the Secretary of State’s detention was granted only on the mental-illness policy ground. Permission against Leicester City Council was refused. The Council received £1,852.50 for its acknowledgment of service and summary grounds; the Secretary of State’s costs were reserved.

The judgment records earlier procedural steps in the same judicial review:

• High Court: Irwin J granted interim relief preventing removal pending resolution of the age issue.
• High Court: Kenneth Parker J refused permission on paper and considered the Essex assessment Merton compliant.
• High Court (Administrative Court): the present court granted permission on one detention ground and refused permission on the remaining grounds and against Leicester City Council.