NCH (Vietnam), R (on the application of) v Sefton Metropolitan Borough Council

In an age-assessment judicial review, fairness requires the local authority to identify with sufficient clarity the inconsistencies and other concerns likely to lead to an adverse age finding, so that the claimant can respond before the decision is made. A possible trafficking victim’s account and credibility must also be assessed in the context of potentially traumatic experiences and their effect on engagement with the process. At the permission stage, the question is whether the evidence, taken at its highest, could properly succeed at a contested hearing. Interim relief follows the American Cyanamid framework, including consideration of the balance of convenience.

The claimant, a Vietnamese asylum seeker who said that he was under 18, challenged Sefton Metropolitan Borough Council’s assessment that he was aged 18 or over. He alleged procedural unfairness and failure to consider the effects of his possible trafficking and exploitation on his account and credibility.

Permission had previously been refused on the papers, together with an extension of time. On renewal, the court considered whether the claim should be admitted out of time, whether permission should be granted, and whether accommodation and support should be provided pending determination of the judicial review.

1. Extension of time. The court extended time for issuing the claim to 28 June 2022. The delay was adequately explained by the claimant’s vulnerability, lack of understanding of English and court processes, and the misunderstanding between his support worker and the first solicitors. The extension caused no substantial prejudice and was not detrimental to good administration.
2. Permission. Permission was granted on both grounds. Applying the principles in R(B) v London Borough of Merton [2003] 4 All ER 280; [2003] EWHC 1689 (Admin), fairness required the claimant to receive a sufficiently clear indication of the concerns about his account, including the particular inconsistencies relied on, so that he could address them. General statements that there were inconsistencies were insufficient.
3. Applying R(A) v London Borough of Croydon, R(M) v London Borough of Lambeth [2009] UKSC 9, the material raised a factual case which, taken at its highest, might succeed at a full hearing.
4. The authority was required to remain mindful of the claimant’s possible trafficking and to assess inconsistencies and credibility in light of potentially traumatic experiences. The absence of any reference to trafficking in the age assessment made it unclear whether that contextual exercise had been undertaken.
5. Interim relief. Applying American Cyanamid Co v Ethicon Limited [1975] AC 396 and the status quo principles discussed in R (KA & NBV) v LB Croydon [2017] EWHC 1723 (Admin), there was a serious issue to be tried and damages were inadequate. However, the balance of convenience favoured refusing relief because the claimant was shortly to turn 18 and alternative accommodation was continuing. The interim-relief application was dismissed.