BXY, R on the application of) v Secretary of State for the Home Department & Anor

At the permission stage of an age-dispute judicial review, the court must ask whether the claimant’s case, taken at its highest, could properly succeed at a contested factual hearing. If it could, permission should normally be granted, subject to ordinary discretionary factors. Where credibility is material, the court should not resolve the factual dispute summarily. A public authority’s age assessment is evidence, but carries no presumption of correctness and attracts no margin of discretion. The court must determine age as a question of fact at the substantive hearing.

These conjoined Administrative Court proceedings concerned disputed ages in cases involving proposed removal to France under the UK-France Treaty. BXY’s application concerned interim relief and the correct permission test. EXR sought permission to bring judicial review and to maintain interim protection against removal.

The Secretary of State accepted, for the purposes of the hearing, that the test in R (FZ) v Croydon London Borough Council [2011] EWCA Civ 59 should be applied pending final determination of the correct approach. The central issue was whether EXR’s evidence, taken at its highest, disclosed a case capable of succeeding at a contested factual hearing.

1. Permission test. The court applied the approach in R (FZ) v Croydon London Borough Council [2011] EWCA Civ 59. At the permission stage, the question is whether the material before the court raises a factual case which, taken at its highest, could not properly succeed at a contested factual hearing. If it could properly succeed, permission should normally be granted, subject to discretionary factors such as delay.
2. Role of credibility and age assessments. Where one possible view of the facts is that the claimant is a child and the issue depends on credibility, permission will usually be appropriate. At the substantive hearing, age is determined as a question of fact. A local authority’s assessment is evidence, which may be good evidence, but there is no presumption that it is correct and the decision-maker has no margin of discretion.
3. Application to EXR. EXR’s statements of truth, account of his date of birth, supporting family evidence, birth-certificate evidence and account of conscription provided a factual case which could properly succeed. The substantial matters casting doubt on his credibility, including his initial claim to be an adult and the existence of two birth certificates, did not make acceptance of his evidence irrational or impossible at a contested hearing. Permission was therefore granted on the age issue.
4. Interim relief and procedural orders. The balance of convenience had not materially changed since the earlier injunction. The application to discharge it therefore failed and the injunction remained in force. Permission was refused on the challenge to Hillingdon’s age determination under ground nine on the arguments advanced. The parties were to address the precise terms of the order.