BG, R (on the application of) v London Borough of Hackney

In age-assessment judicial review proceedings, the duty of candour requires both parties to disclose all material facts, including adverse material, and to make reasonable enquiries to identify it. An applicant’s solicitors must identify the applicant’s social-media and communication accounts, review relevant material, and disclose anything bearing on age. The Tribunal may require a solicitor’s disclosure statement. Specific disclosure is not automatic. It requires an application and must be necessary to resolve the case fairly and justly. Wide-ranging access to social-media accounts may interfere with private life, so the Tribunal must consider whether a narrower and less intrusive measure will suffice.

The applicant, an Afghan national claiming to have been born in 2008, challenged a local authority age assessment which concluded that he was an adult. In interlocutory case-management directions, the Upper Tribunal ordered review and disclosure of material from his social-media accounts. The applicant applied to set those directions aside, arguing that they exceeded the Tribunal’s powers, were disproportionate, and were inconsistent with the duty of candour and Articles 8 and 10 ECHR.

The parties accepted that no application for specific disclosure had been made when the original directions were issued. The Tribunal therefore considered the scope of candour in age-assessment judicial review, the circumstances in which specific disclosure may be ordered, and the possible relevance of the guidance to future appeals in the First-tier Tribunal.

1. Duty of candour. The application for judicial review proceeded on the basis of an applicant’s duty to disclose all material facts bearing on the issues, including facts which might undermine the claim. The duty includes making reasonable enquiries and drawing adverse significance to the court’s attention. It is not discharged merely by supplying an undigested bundle of documents.
2. Social-media material. In age-assessment proceedings, an applicant’s representatives must ascertain the social-media and other communication methods used by the applicant, review the relevant accounts for material which potentially supports or undermines the case, and disclose relevant material. The exercise should be carried out or supervised by a suitably trained legal representative. The scope is fact-sensitive and may include a stated date of birth, dates of school attendance, or other material bearing on age.
3. Disclosure statements. The Tribunal may require a solicitor to confirm that the applicant has disclosed details of all relevant accounts and that a reasonable and proportionate search has been undertaken. Such a statement is a highly material consideration when specific disclosure is sought.
4. Specific disclosure. An order cannot be made automatically or as a matter of course. There must first be an application. The governing question is whether disclosure appears necessary to resolve the matter fairly and justly. A request must have a specific trigger and target; a general desire to inspect an applicant’s entire social-media footprint is a fishing expedition.
5. Privacy and proportionality. Requiring login details or unrestricted scrutiny of social-media accounts is likely to interfere with private life. The Tribunal must consider whether a less intrusive measure can achieve the legitimate aim. The directions originally made were set aside and replaced by a proportionate search of specified Facebook material, with any further specific-disclosure application to be made separately.
6. The observations concerning future age-assessment appeals in the First-tier Tribunal were prospective. Although there is no equivalent duty of candour in such appeals, the Tribunal may use its procedural powers to require reasonable and proportionate searches and production of relevant material.

The proceedings were issued in the Administrative Court. Permission for judicial review and interim relief were granted, and the claim was transferred to the Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal set aside the challenged case-management directions and approved replacement directions. The judicial review claim continued on that basis.