GB (R on the application of) v LEEDS CITY COUNCIL

At the permission stage of an age-assessment judicial review, the court must ask whether the material before it raises a factual case which, taken at its highest, could properly succeed at a contested factual hearing. The court must consider the possibility of a future hearing, including fresh and oral evidence, but the assessment remains focused on the material then before the court.

Where no reliable documentary evidence establishes age, the relevant evidence may include the claimant’s history, physical appearance and behaviour. Physical appearance and demeanour must not be treated as exclusive determinants. A balanced assessment by experienced social workers may carry considerable weight. Permission should be refused where, even taking the claimant’s evidence at its highest, the challenge could not properly succeed.

The claimant, an Iranian asylum seeker, claimed to be aged 17 and sought judicial review of Leeds City Council’s assessment that he was aged 20 and nearly 21. A brief enquiry was followed by a full age assessment and an addendum assessment after further evidence was supplied.

Permission had been refused on the papers. The claimant renewed the application and sought interim relief requiring him to be treated as a child. He also sought to rely on fresh evidence from a support worker. The issues were whether the claim was out of time, whether the fresh evidence should be considered, and whether the factual challenge met the permission-stage test.

1. Permission refused. The application for interim relief did not arise because permission for judicial review was refused.
2. The applicable permission-stage test, derived from R (FZ) v Croydon LBC [2011] EWCA Civ 59, was whether the material before the court raised a factual case which, taken at its highest, could properly succeed at a contested factual hearing. The context included the hard-edged factual nature of age assessment proceedings, the possibility of transfer to the Upper Tribunal, and the use of fresh and oral evidence.
3. The court accepted the fresh witness statement as part of the material before it. It was evidence that could properly be considered at a substantive factual hearing, although it had not been before the assessing social workers.
4. The claim was not refused for delay. The addendum assessment was properly undertaken after further information became available. Judicial review was a last resort, and it was reasonable to await that further consideration. The proceedings were commenced promptly after the addendum assessment and, if necessary, an extension of time would have been granted for good reason.
5. On the merits, the assessment was balanced and legally compliant. The social workers did not treat the claimant’s difficulties discussing traumatic matters, limited detail, communication difficulties or the interpreter issue unfairly. They did not rely exclusively on physical appearance or demeanour, and they addressed the reliability of the claimant’s account without finding that he was untruthful.
6. Consistently with B v Merton LBC [2003] EWHC 1689 (Admin), where reliable documentary evidence is absent, age may depend on the claimant’s history, physical appearance and behaviour. The five-year margin of error did not require a further reduction of the assessment from age 20. Even taking the claimant’s strongest credibility argument and the supporting material about conscription and the earthquake at its highest, the factual case could not properly succeed.