Pishtian Karimi, R (on the application of) v Sheffield City Council

In an age-assessment judicial review, permission should be refused only where the material, taken at its highest, could not properly succeed at a contested factual hearing. That is the required “knockout blow”. Age is an objective, hard-edged factual question for the reviewing court or, usually after transfer, the Upper Tribunal, which may consider fresh and oral evidence. Assessments should not misunderstand or overemphasise physical characteristics. A minded-to process should be clear to decision-makers and to the putative child, providing a meaningful opportunity to respond before the decision is made. A claimant’s attainment of 18 does not necessarily make the claim academic where issues concerning former relevant children arise.

The claimant, an unaccompanied asylum seeker, challenged Sheffield City Council’s age assessment. Permission for judicial review had been refused on the papers, but the claim had not been certified as totally without merit. At the oral renewal hearing, the court considered whether the evidence met the permission threshold, including the assessment’s emphasis on physical characteristics, the nature of the alleged minded-to process and reliance on the claimant’s ability to travel independently. The court also considered whether the claim had become academic because the claimant had since turned 18, and whether late-served material could be relied upon. The central issue was whether the claim was properly arguable and should proceed to substantive determination.

Permission granted and claim transferred. Fordham J granted permission for judicial review, transferred the case to the Upper Tribunal for substantive determination, set aside the costs order made when permission was refused on the papers, and ordered costs in the case.

1. Age assessment cases involve both conventional public-law review and an objective, hard-edged factual question. The correctness of that question is for the reviewing court, or usually the Upper Tribunal following transfer, which may consider fresh evidence and, where appropriate, oral evidence.
2. The permission-stage question, identified in R (FZ) v Croydon LBC [2011] EWCA Civ 59 at §9, is whether the material, taken at its highest, could not properly succeed at a contested factual hearing. Only if that negative question is satisfied is there a sufficient “knockout blow” to refuse permission. The present case cleared that threshold.
3. The emphasis on the claimant’s height and stubble raised an arguable concern. R (B) v Merton [2003] EWHC 1689 (Admin) identifies history, physical appearance and behaviour as relevant features where reliable documentary evidence is absent. The assessment appeared to begin with physical appearance as the primary or most weighty consideration, rather than explaining how the features were considered in the round. The substantive evaluation was left to the Upper Tribunal.
4. The minded-to stage has an important function even though no prescribed form is required. It should be clear both to the decision-makers and to the putative child that no final decision has yet been made, what the concerns are, and that there is a final opportunity to respond. The contemporaneous note appeared more closely to record the sharing of the concluded assessment than a genuine minded-to stage.
5. The claimant’s ability to travel by train had to be considered in the context of his previous international journey and claimed age. The claim was not academic merely because he had since turned 18; the principles concerning former relevant children remained potentially relevant.
6. Late, unheralded documents impede reliable judicial pre-reading. The defendant’s late skeleton was accepted as a speaking note, but an unfiled meeting note could not be introduced through that document as if it were evidence.

Permission for judicial review was refused on the papers by an earlier judge. The claimant renewed the application orally. The Administrative Court granted permission, transferred the claim to the Upper Tribunal for substantive determination, and set aside the earlier costs order.