WA (Palestinian Territories), R (On the Application Of) v The Secretary of State for the Home Department

The Court of Appeal held that judicial review does not require a tribunal to determine an exact date of birth where the evidence offers no sensible prospect of doing so. The appropriate approach is an age assessment and, if appropriate, a most-likely date. Article 2 may impose an operational duty where there is a real and immediate risk to life, but that duty is tied to the branch of the state responsible for the person’s welfare and safety. It does not require an administrative record-keeping decision to be reversed because it contributed to a suicide risk. Article 8 protects accurate identity records, but does not require unsupported or misleading information to be inserted, however grave the consequences.

WA, a Palestinian refugee, was issued a biometric residence permit recording 19 April 1989 as his date of birth. He sought amendment to 29 December 1994, the date he believed to be correct. The Secretary of State refused, relying on age assessments and the absence of evidence supporting the claimed date.

WA was receiving hospital treatment after refusing food and fluids and brought judicial review proceedings alleging breaches of Articles 2 and 8 of the European Convention on Human Rights. The Upper Tribunal dismissed the claim on 29 September 2020. The appeal concerned whether the Court should determine WA’s true date of birth, whether Article 2 required the Secretary of State to amend the permit, and whether Article 8 imposed that obligation.

1. Ground 1. The appeal was dismissed on the challenge to the Upper Tribunal’s treatment of the date of birth issue. In judicial review proceedings concerning Convention rights, the tribunal must decide whether those rights have been violated: Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19. A court may determine a hard-edged factual issue where necessary, as explained in R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 2387 (Admin). There is, however, no obligation to conduct a fact-finding exercise where the evidence gives no sensible prospect of establishing the fact to the requisite standard. The evidence here supported an age range and a most-likely date, but could not establish the precise date claimed. Assigning percentage probabilities to competing dates was inappropriate.
2. Article 2. The principles in Rabone v Pennine Care NHS [2012] 2 AC 72 show that a real and immediate risk to life is necessary but not sufficient for an operational duty. Relevant considerations include assumption of responsibility or control, vulnerability, and whether the risk is exceptional rather than ordinary. A serious suicide attempt may engage duties in the branch of the state caring for or controlling the person. It does not impose a corresponding duty on another branch making an administrative decision. Mammadov v Azerbaijan (2014) 58 EHRR 18 concerned state agents exercising authority and control and did not establish a duty on unrelated administrative authorities. The NHS Trust was responsible for protecting WA’s life; the Secretary of State’s record-keeping function was not sufficiently connected with welfare and safety.
3. Article 8. The framework in R (Elan-Cane) v Secretary of State for the Home Department [2020] 3 WLR 386 required consideration of private life, any positive obligation, the margin of appreciation and the fair balance between competing interests. A date of birth accurately recorded on a biometric residence permit falls within private life. As recognised in Ciubotaru v Moldova (2010) 29 BHRC 326, respect for identity does not require a public authority to insert information unsupported by evidence and considered inaccurate or misleading. The grave consequences for WA did not alter that conclusion. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): Appeal dismissed and the Upper Tribunal’s decision upheld. [2021] EWCA Civ 12.
• Upper Tribunal Immigration and Asylum Chamber: Upper Tribunal Judge Pitt dismissed the expedited judicial review claim on 29 September 2020 (JR/1572/2020).