AHA, R (on the application of) v The City and County Council of Cardiff

At the paper permission stage of judicial review, permission may be refused where the evidence, even taken at its highest, does not disclose a factual case capable of succeeding at a contested hearing. A local authority may rely on physical appearance and demeanour, together with relevant governmental guidance, in deciding that an asylum seeker is significantly over 18 and that a full age assessment is unnecessary. A delayed claim may mean that no litigation friend is required where the claimant will shortly reach 18. Interim relief and expedition will not be justified where the claim lacks a sufficient factual basis. Anonymity may be ordered where disclosure would increase the risk to an asylum seeker on return and there are compelling reasons to derogate from open justice.

The claimant, an asylum seeker, sought judicial review of the defendant local authority’s decision to treat him as an adult after two officers independently assessed his age. The issues included whether a full age assessment was required, whether a litigation friend was necessary, and whether interim relief or expedition should be granted.

The claim was made nearly three months after the challenged decision. On the claimant’s account, he would reach 18 within three months of making the claim. The court considered the material filed and the response to the pre-action protocol letter, refused permission and the interim applications, made no order as to costs, and gave directions for any renewed permission hearing.

Permission to apply for judicial review was refused. The interim applications were refused and there was no order as to costs.

1. The court granted anonymity. The claimant was an asylum seeker and publication of his identity might increase the risk faced on return to his country of origin. The court considered that a compelling reason existed for limited derogations from open justice, invoking CPR 39.2(4), s 6 of the Human Rights Act 1998, s 11 of the Contempt of Court Act 1981, and the inherent jurisdiction. The order required anonymised references and redacted statements of case, and restricted access by non-parties to unredacted statements.
2. Two officers had independently assessed the claimant as an adult in accordance with Home Office Guidance. That guidance allowed adult treatment where physical appearance and demeanour strongly suggested that the claimant was significantly over 18 and there was little or no supporting evidence for the claimed age. Welsh Government Guidance provided that, where the agencies agreed that a young person was significantly over 18, the local authority need not conduct an age assessment. The defendant was therefore entitled to conclude that no full age assessment was required.
3. The claim had been made nearly three months after the challenged decision and was not prompt. On the claimant’s account, he would reach 18 within three months of making the claim. There was consequently no need for a litigation friend, and no justification for interim relief or expedition.
4. The material before the court did not disclose a factual case capable of succeeding at a contested factual hearing, even when taken at its highest. The response to the pre-action protocol letter was taken into account despite the absence of a response to the claim.

A request for reconsideration had to be made within seven days on Form 86B. The order gave directions for a 30-minute hearing, filing of the permission bundle, and service of skeleton arguments and authorities.