Amadu, R (On the Application Of) v Essex County Council (Rev 1)

At the permission stage of a judicial review challenging an age assessment, the court asks whether the evidence, taken at its highest, raises a factual case that could properly succeed at a contested fact-finding hearing. The court must consider all material evidence, not merely the claimant’s asserted date of birth or supporting document. Physical appearance must not be used as the sole basis for an age assessment, but it may be considered with demeanour, interaction, inconsistencies, documentary evidence and information from other sources. A claimant must have a fair and proper opportunity, while the adverse conclusion remains provisional, to address significant points relied upon by the assessors. Permission should be refused where the evidence gives no realistic prospect of establishing that the claimant was a child on the relevant date.

The claimant sought renewed permission to challenge Essex County Council’s decision that he was at least 23 years old when assessed in August 2020. He claimed to have been born on 6 October 2002 and therefore to have been under 18 and entitled to treatment as a former looked after child under the Children Act 1989.

The proposed grounds were that the evidence disclosed an arguable case that he was younger, that the assessors had relied solely on physical appearance, and that he had not been given a fair opportunity to answer the adverse points. The central questions were whether the evidence could properly support a finding that he was a child and whether the assessment process was procedurally fair.

1. Permission threshold. The court applied the approach in J and R (F) v Lewisham LBC [2010] 2 FCR 292 and R (FZ) v Croydon LBC [2011] EWCA Civ 59. The question was whether the material, taken at its highest, raised a factual case which could properly succeed at a contested fact-finding hearing. The assessment was not confined to the claimant’s consistent assertion of a particular birth date or to the copy birth certificate.
2. The evidence included multiple dates of birth and aliases, an adult asylum claim in Germany, a 2010 secondary-school photograph inconsistent with the claimed age, earlier records describing him as born in 1998, inconsistent ages given for life events, physical presentation, demeanour and interaction, and the absence of meaningful answers in his witness statement. Taken together, that evidence gave no realistic prospect of a finding that he was under 18.
3. Physical appearance. The court applied the principle in A v Croydon LBC [2009] EWHC 939 that physical appearance alone cannot determine chronological age. The assessment record showed that the assessors also relied on demeanour, interaction, information supplied by the claimant and information from other sources. The alleged error was therefore not arguable.
4. Procedural fairness. The court considered the fairness guidance in R (FZ) v Croydon LBC. Although interviewers should ordinarily give a fair and proper opportunity to address important adverse points while the conclusion remains provisional, the guidance did not make it legally impermissible to raise those points during the interview. The assessment record showed that the claimant was questioned directly about the school identification card, different dates and places of birth, and variations in his name, and had a full opportunity to respond.
5. There were no arguable grounds of challenge. Permission to seek judicial review was refused.

This was a renewed application for permission to seek judicial review. The judgment records that Linden J had previously considered the application on the papers and reached the view that the evidence pointed ineluctably to the claimant being substantially older than claimed.