BF (Eritrea), R (On the Application Of) v Secretary of State for the Home Department

At the permission stage of judicial review, the court decides whether the proposed challenge is arguable, not whether it will ultimately succeed. A policy challenge with potentially serious consequences cannot be dismissed as unarguable where the legal and evidential issues have not been fully tested. If the appellate court lacks the evidence needed to determine the substantive claim, it should grant permission and remit the claim for hearing, with appropriate permission to amend and directions for the defendant’s evidence.

An Eritrean national claimed to be a child when he entered the United Kingdom. Immigration officers assessed him as significantly over 18 under a policy allowing initial reliance on physical appearance and demeanour in specified circumstances. The Upper Tribunal refused permission to apply for judicial review and refused permission to amend the claim. The proposed challenge raised issues concerning detention, asylum processing, statutory safeguards and international legal obligations. The central issue was whether the challenge was arguable and, if so, whether the Court of Appeal should determine it or remit it.

1. Disposition. Lord Justice Burnett, with Lady Justice Black and Lord Justice Bean agreeing, allowed the appeal. Permission to apply for judicial review was granted and the claim was remitted to the Upper Tribunal for hearing.
2. Procedural power. The Court explained the differing routes for appeals against refusals of permission arising from the High Court and the Upper Tribunal, referring to NB (Algeria) [2012] EWCA Civ 1050. Under section 16(8) of the Tribunals, Courts and Enforcement Act 2007, the Court of Appeal would have power to determine the judicial review claim after granting permission. It was not appropriate to do so here because the Secretary of State had filed no evidence and would need to answer the detailed evidence supporting the claim.
3. Arguability. The proposed challenge to category C of the policy was arguable and had prospects of success. The challenge concerned the risk of error where age was assessed substantially from appearance and demeanour, and the serious consequences of treating a child as an adult, including detention and different asylum arrangements. The references to paragraphs 16(2)(a) and 18(b) of Schedule 2 to the Immigration Act 1971, the Merton line of authority and international materials gave the challenge substance. The Secretary of State relied on safeguards, including the requirement for a strong indication of adulthood, absence of credible contrary evidence, independent confirmation by a second officer and later revision if new evidence emerged. Those matters required full argument and evidence; they did not make the claim unarguable.
4. Earlier authority and directions. The Court did not treat AA [2013] UKSC 49 as disposing of the proposed challenge because the additional arguments relied upon had not been before the Supreme Court. The appellant was to have permission to amend the claim form to reflect the developed challenge. The Home Office was to provide detailed grounds of resistance and any evidence on which it wished to rely.

• Court of Appeal (Civil Division) — Permission to appeal was granted on 7 May 2015. On 11 October 2016 the appeal was allowed, permission to apply for judicial review was granted and the matter was remitted to the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Lane refused permission to apply for judicial review and refused permission to amend the claim on 6 August 2014.