KRA, R (on the application of) v Cheshire East Council

In an age-assessment judicial review, the permission-stage question for interim relief is whether the evidence, taken at its highest, raises a factual case capable of succeeding at a contested hearing. A higher threshold such as a strong prima facie case is unnecessary. The apparent strength of the claim may nevertheless inform the balance of justice.

That balance compares the risk of later injustice to a claimant wrongly treated as an adult with the risk to the local authority, public interest and resources if an adult is temporarily treated as a child. Relevant considerations include unsuitable adult accommodation, inherent vulnerabilities of an unaccompanied young person, safeguarding risks, the loss of statutory support on turning 18, and resource consequences. Interim relief was granted where the risk of injustice to the claimant was substantially greater.

The claimant, an asylum seeker from Sudan, claimed to be aged 16 on arrival in the United Kingdom. Home Office officials assessed him as an adult, and Cheshire East Council later conducted a brief age assessment concluding that he was significantly over 18. He sought judicial review and interim accommodation and support under the Children Act 1989.

The parties agreed that the objective factual question of age should ultimately be determined by the Upper Tribunal. The Administrative Court therefore considered whether the claim was sufficiently arguable for interim relief and how the balance of justice should be assessed pending transfer. The court also considered delay, the assessment’s reliance on physical appearance, the claimant’s accommodation and vulnerabilities, safeguarding, resources, and the consequences of turning 18.

1. Arguability. The claim was not unarguable. The correct permission-stage threshold was whether the material, taken at its highest, raised a factual case which could properly succeed at a contested factual hearing. There was no distinct requirement of a real prospect of success, a strong prima facie case, or a higher threshold because the relief was mandatory or might substantially determine the claim (paras [15]-[17]).
2. The assessment document did not identify the information said to lack credibility or the alleged inconsistencies. Nor did it show that those concerns had been put to the claimant for response. Those matters could reduce the weight attributable to the assessment at the substantive hearing (paras [18]-[19]).
3. Although experienced social workers may, in a clear and obvious case, determine age largely or solely from physical appearance and demeanour, the judicial review still raises the objective factual question of age for fresh determination. Physical appearance and demeanour are recognised as notoriously unreliable. The court could not predict the likely outcome before the Upper Tribunal, but found a very real prospect of success (paras [20]-[24]).
4. Balance of justice. The court had to compare the risks of interim defeat followed by later vindication. Relevant considerations included the claimant’s unsuitable adult accommodation, the support owed to a child and former relevant child, inherent vulnerabilities, risks of placing a child with adults or an adult with children, safeguarding evidence, the consequences of turning 18 without having been looked after, and the Council’s resource implications (paras [25]-[30]).
5. The risk of injustice to the claimant was substantially greater than the risk to the Council. Interim relief was granted. Permission for judicial review was also granted and the claim was transferred to the Upper Tribunal for case management and substantive determination. Costs were costs in the case (paras [31]-[32]).