EXR, R (on the application of) v Secretary of State for the Home Department (No.2)

Where reasonableness governs judicial review of an adult classification for removal of an unaccompanied child under the UFT, the court applies anxious scrutiny. The public interest in the scheme’s effective operation does not reduce its intensity. Fresh evidence may be received, and a challenge to reliance on a Merton-compliant assessment remains subject to reasonableness review, although the SSHD’s latitude on objective procedural compliance is narrow. In trafficking decisions, correctness review applies where age is material to the statutory victim test or to a child-specific distinction required by statutory guidance under the Modern Slavery Act 2015. There is no universal correctness standard for every age question in a trafficking case.

This further first-instance judgment concerned judicial review of the SSHD’s decisions to treat an unaccompanied individual as an adult in connection with proposed removal to France under the UK-France Treaty 2025, and of a negative Reasonable Grounds trafficking decision. An earlier judgment, EXR No.1 [2026] EWHC 1568 (Admin), had held that reasonableness was the standard for reviewing the adult classification in the removal context.

This judgment resolved four questions about that standard: scrutiny, fresh evidence, collateral challenges to Merton-compliance, and what decision must be reasonable. It also considered when age attracts correctness review in a trafficking decision. The substantive challenges were left for a later hearing.

1. The Court determined preliminary issues and made declarations. It declared that reasonableness governs judicial review of an adult classification for inadmissibility decisions under sections 80A and 80B of the Nationality Immigration and Asylum Act 2002 and removal under the UFT. It also declared that, in the circumstances specified below, correctness review applies to age-related elements material to a negative Reasonable Grounds or Conclusive Grounds decision.

2. For the UFT adult-classification decision, anxious scrutiny applies because of the decision’s impact on an unaccompanied person claiming to be a child and the child-protection purpose of the exclusion. The public interest in effective operation of the UFT does not reduce scrutiny: expeditious review may be appropriate, but it does not lower the standard. The Court also recognised that age may have particular significance in judicial review of a clearly unfounded certification where the First-tier Tribunal could possibly allow an appeal on at least one legitimate view of the facts or law, including on age. ZT (Kosovo) v SSHD [2009] UKHL 6 and R (EM (Eritrea)) v SSHD [2014] UKSC 12 were cited on that test.

3. A claimant may rely on fresh evidence post-dating the SSHD’s latest age decision. The evidence is not inadmissible in judicial review. It may be put to the SSHD, and a claimant may challenge both continued reliance on the earlier refusal and refusal to consider the new material.

4. Where the SSHD relies on a local-authority age assessment as Merton-compliant, the claimant may collaterally challenge its compliance with the objective legal standard of minimum fair procedure. The Court should consider compliance for itself, while the overarching review question remains reasonableness. The latitude is narrow: a contestable factual evaluation may permit reasonable disagreement, but an objectively non-compliant assessment will often make reliance on it unreasonable. The Court followed the approach in AAM v SSHD [2012] EWHC 2567 (QB) and R (J) v SSHD [2011] EWHC 3073 (Admin).

5. In the UFT context, what must be reasonable depends on the decision made in the particular case. The child-protection context may make a benefit of the doubt significant, including whether the individual is clearly an adult, but the Court did not impose that threshold in every case.

6. In trafficking decisions, correctness review applies when age is an element of the statutory victim test. It also applies where statutory guidance issued under section 49 of the Modern Slavery Act 2015 requires a materially different approach to a child and an adult, and treating the person as an adult is material to a negative Reasonable Grounds or Conclusive Grounds decision. That reasoning extends to the other child-specific indicators in the guidance, including indicators concerning past or present age. It does not establish a correctness standard for every child-related question in a trafficking context. The statutory presumption in section 51 identifies a point in the relevant sequence of age determinations; it does not itself change the standard governing the lawfulness of an age determination.

7. The Court did not determine the substantive age challenges or the duty-of-candour issue. Those matters were listed for a further hearing if possible on 17 September 2026. The age challenge to the negative Reasonable Grounds decision was to be transferred to the Upper Tribunal (Immigration and Asylum Chamber) for fact-finding. Consequential matters, including costs, were reserved.

This was a further first-instance judgment in the same claim, following EXR No.1 [2026] EWHC 1568 (Admin) . No appeal was decided. The Court made preliminary declarations and directed that the substantive challenges and the duty-of-candour issue proceed to a further hearing.