F (Eritrea), R (on the application of) v Secretary of State for the Home Department

Permission to appeal may be granted where proposed judicial review grounds are properly arguable, even though later events may render the proceedings moot for the individual claimant. The court may preserve the appeal conditionally, including by postponing listing until related proceedings have concluded and accepting an undertaking to withdraw if those proceedings fail. Public importance alone does not justify permission for a purely academic dispute where another case can determine the issues. A Supreme Court decision addressing a different issue may be non-binding on the Court of Appeal but strongly persuasive.

F, an Eritrean national, challenged the lawfulness of a policy permitting immigration officers to assess age by physical appearance. He argued that the policy was unreliable and created an unjustified difference from the holistic assessment required of local authorities.

The Upper Tribunal rejected the appeal and refused permission to appeal. Subsequently, a local authority assessed F as an adult, and related judicial review proceedings were brought to challenge that assessment. The central issue was whether permission should be granted when the present proceedings might become moot, but the proposed grounds remained arguable and potentially raised matters of public importance.

1. Permission granted conditionally. The renewed application was granted. The appeal was not to be listed until the outcome of F’s fresh judicial review proceedings concerning the local authority’s age assessment was known. F’s representative undertook that, if those proceedings failed, the appeal would be withdrawn.
2. The proposed challenges to the reliability of age assessment by physical appearance alone, and to the different standards applied by immigration officers and local authorities, were arguable. They therefore warranted consideration by the full court, provided the issues remained live for F.
3. The Supreme Court’s decision in The Queen (AA Afghanistan) v Secretary of State for the Home Department ([2013] UK SC49) addressed a different issue. It was consequently not strictly binding on the Court of Appeal, although the Supreme Court’s approval of the Secretary of State’s policy was strongly persuasive and reduced the prospects of success.
4. If the local authority assessment remained effective, the present judicial review would become moot or academic as regards F. The possibility that an issue has general public importance was insufficient, by itself, to justify permission for a purely academic dispute where other cases could provide an appropriate occasion for determination.
5. The stay was not discharged. The formal order was: application granted.

1. Court of Appeal (Civil Division): on the renewed application, granted permission to appeal conditionally and declined to discharge the stay, in [2015] EWCA Civ 1605.
2. Upper Tribunal (Immigration and Asylum Chamber): Tribunal Judge Lane refused permission to amend, rejected the appeal and refused permission to appeal to the Court of Appeal.
3. High Court: Supperstone J refused to allow the judicial review claim to proceed, holding that the operation of the policy was lawful.