JS & Anor, R (on the application of) v Birmingham City Council

Where a local authority and the Secretary of State have made conflicting age assessments of an asylum claimant, the local authority must follow its published policy for liaison, reconciliation and resolution of the conflict, or give a good reason for departing from it. A failure to do so is amenable to ordinary judicial review.

An age assessment may also be challenged on the ground that it is factually wrong. That additional jurisdiction does not exclude ordinary public-law grounds. Where a clear public-law ground is established, the appropriate course may be to quash the assessment and require reconsideration, rather than hold a lengthy fact-finding hearing on age.

The claimants were Afghan asylum seekers whose ages had been assessed as over 18 by Birmingham City Council. In each case, an Immigration Judge had assessed the claimant as substantially younger, and the Secretary of State had accepted that assessment for immigration purposes.

The resulting conflict exposed each claimant to inconsistent treatment and possible difficulty obtaining accommodation and support. The transferred judicial review claims challenged the council’s assessments. The preliminary issue was the effect of decisions made under the Immigration Acts on judicial review proceedings against the local authority.

1. The claims succeeded. The Upper Tribunal quashed both age-assessment decisions.

2. The Supreme Court’s decision in R (A) v Croydon LBC [2009] UKSC 8 did not displace ordinary judicial review principles. A local authority’s assessment may be challenged for public-law error, including failure to consider relevant matters, consideration of irrelevant matters, or irrationality. In addition, the court may determine that the assessment is factually wrong because the statutory duties are owed to those who are in fact children.

3. The council had adopted the Age Assessment Joint Working Protocol as part of its published policy. That policy required communication and reconciliation where the local authority and the immigration authorities held conflicting views about age. The policy applied throughout the assessment process, including when an Immigration Judge’s assessment and subsequent immigration decision provided material bearing on age.

4. There was little or no evidence that the required liaison, discussion, persuasion or reconciliation had occurred. The council had instead maintained assessments which contradicted those accepted by the Secretary of State, without following the protocol or providing a good reason for departing from it. That was a conventional public-law ground requiring the decisions to be quashed.

5. A factual age-assessment hearing was unnecessary at that stage. Reconsideration under the protocol could produce one assessment accepted by both authorities and avoid the claimants having to challenge separate, inconsistent official assessments.

• Upper Tribunal (Immigration and Asylum Chamber): Transferred judicial review claims challenging Birmingham City Council’s age assessments. The Tribunal quashed both decisions and left the council to reconsider them in accordance with its published protocol.