RS, R (On the Application Of) v Secretary of State for the Home Department & Anor

In an age-assessment judicial review, the court must determine the claimant’s age itself rather than review the local authority’s assessment. At the permission stage, the question is whether the evidence, taken at its highest, raises a factual case that could properly succeed at a contested hearing. A realistic prospect of a different conclusion is sufficient; the court need not predict the eventual result. Where that threshold is met, permission should be granted. The court need not finally determine alleged defects in the assessment procedure at the permission stage.

The claimant, an Afghan national seeking asylum, challenged a local authority assessment that he was over 18. The assessment led to the termination of support under the Children Act 1989 and to his treatment as an adult for asylum-support purposes. He argued that his account of his age and life history gave rise to an arguable case that he was under 18, and that the assessment was not compliant with the guidance in R (B) v Merton London Borough Council [2003] 4 All ER 280.

The application was for permission to proceed with judicial review. The court also considered whether the Secretary of State should remain a defendant or instead participate as an interested party, and whether she should undertake to be bound by the court’s determination of age.

1. The court applied the established approach that an age-assessment claim requires the court to assess the claimant’s age itself, rather than review the assessment carried out by another body, as stated in R (A) v London Borough of Croydon [2009] 1 WLR 2557.

2. At the permission stage, the court applied the test approved in R (FZ) v London Borough of Croydon [2011] EWCA Civ 59, adopting the formulation in R (F) v Lewisham Borough Council [2010] FCR 292. The question was whether the material, taken at its highest, raised a factual case that the claimant was under 18 which could properly succeed at a contested hearing.

3. The claimant’s account that his age was recorded in a family Koran, together with his account of his schooling, time in Afghanistan and subsequent journey, was consistent with his claimed age. His account had not been directly challenged. The possibility that the assessment had relied substantially on physique, appearance and demeanour also made the claim properly arguable. The court emphasised that a realistic prospect of a different conclusion was not a prediction of success.

4. The court considered it inappropriate, at a permission hearing, to determine whether the assessment complied with the guidance associated with R (B) v Merton London Borough Council [2003] 4 All ER 280. Permission was therefore granted against the Council.

5. The claim against the Secretary of State had no reasonable prospect of success on the material available. Permission to continue against her was provisionally refused, conditional on her undertaking to be bound by the court’s decision on the claimant’s age. Without that undertaking, she was to remain a defendant.

6. Under rule 39.2(4) of the Civil Procedure Rules 1998, the claimant’s identity was not to be disclosed until further order.

This was a first-instance application for permission to apply for judicial review. Earlier interim orders required the Council to provide accommodation and support in accordance with the claimant’s claimed age and restrained dispersal to adult accommodation. Permission was granted against the Council and provisionally refused against the Secretary of State, subject to an undertaking.