Practice Note: Understanding Permission Decisions in Age Dispute Cases

Friday 19 November 2010

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1. The significant change in how age disputes should be dealt with following the Supreme Court’s judgment in R(A) v Croydon LBC [2009] UKSC 8; [2009] 1 WLR 2557 has been slow to filter through the learning of the courts (High Court and Immigration Tribunals) and amongst practitioners. Discussions with community care and immigration practitioners reveal that courts still approach age disputes in an inconsistent manner

2.This note aims to provide some learning from recent experience with judicial review applications that have passed the permission hurdle.

Test for Permission

3. The Supreme Court’s judgment in A v Croydon, supra, fundamentally altered that approach.

4. The correct test on permission in an age dispute post-A v Croydon is as set out clearly by Holman J in R (F) v Lewisham LBC [2009] EWHC 3542 (Admin) (at §15):

Is there a realistic prospect, or arguable case that at a substantive fact-finding hearing, the court will reach a

relevant conclusion that the claimant is of a younger age than that assessed by the local authority?

5. This is because the substantive issue to be determined by the Court is a question of pure fact: whether the putative child is a child or adult; and what is his age / date of birth – for as Lady Hale states at paragraph 27 of A v Croydon, age is an objective fact with a right or wrong answer. See also Lord Hope at paragraph 53: the question of age admits only one answer.

6. It is helpful to remind of the observations of Holman J who considered the Supreme Court’s judgment in A v Croydon, supra on judicial reviews of age dispute in F v Lewisham, supra, stating that:

  • Permission remains an important filter and safeguard precisely designed to ensure that only those cases with appropriate merit get beyond even the preliminary stage: §13.
  • But, in the approach of the court to question of permission in this type of case, it is now necessary to appreciate that the relevant question in the substantive judicial review, if permission is granted, will be a pure question of fact: §14.
  • Where there is no dispute that a putative child is a child, but a dispute remains as to whether he is older than asserted, there is potentially real importance in judicial review because the actual range and nature of services and accommodation provided may vary according to whether, for instance, the person is 15, 16 or 17. A real issue may arise as to the date of termination of services. The assessment also has a knock-on effect upon the manner in which a person is treated by the Secretary of State in relation to asylum and immigration claims: §14.

Local Authority’s Role in Age Assessments

7. That age is an objective fact does not discharge the primary duty of the local authority to carry out the assessment of age. As the Supreme Court envisages it, (and as already mentioned in an earlier practice note), the decision on age is in the first instance for the local authority or the immigration authority to take, having regarding to the well-established guidelines set down by Stanley Burnton J (as he then was) in R (B) v Merton LBC [2003] EWHC 1689 (Admin).

8. However, it is equally important to note that the process does not end there. The first instance decision-maker must be aware that the decision on age admits no discretion: see Lord Hope paragraph 54. It is therefore not a decision solely based on a local authority’s judgment call.

9. Thus, importantly, where proceedings are issued because of a dispute over age, an offer to reconsider age on the part of the local authority does not automatically bring judicial review proceedings to an end.

10. This is logical when considering what the challenge is about. The challenge is to the fact of a child’s age. A review does not imply that the fact of age is accepted. It would of course be a different matter if the local authority accepts the child’s claimed age.

11. This proposition was approved recently in the case of R (RS) v Croydon LBC, extempore judgment of Burnett J, overturning the decision of Mr. C.M.G. Ocketlon sitting as a deputy High Court Judge refusing permission on the papers solely on the basis that Croydon had offered to review the claimant’s age.

12. Thus the approach some local authorities have taken in the past – i.e. ignore correspondence challenging age until issuing of judicial review proceedings and then turn around and offer to review – will not in the light of A v Croydon change the fact that there is a dispute of age and the Court is seized of that jurisdiction.

13. What about circumstances where local authorities agree to withdraw the age assessment in dispute and review the issue of age?

14. That on its own also does not bring the age dispute to an end because there is no acceptance of claimed age. However, it may, of course, be appropriate in those circumstances to ask that the local authority accept the claimant’s claimed age pending review. It still does not finally resolve the judicial review.

15. What it will sensibly do is stay judicial review proceedings because both parties and the Court will need to consider where matters stand once the review has been completed. This suggested approach would be consistent with the overriding interest under CPR r.1.1 and the Court’s case management powers under CPR r.3.1.

16. Why is that? Because there remains a live age dispute. It may or may not be resolved by the local authority’s review. If it does not, the Court will still be and will have to be seized of the jurisdiction to determine the fact of age.

17. Proposition for this can be found in the recent case of R (H) v SSHD and Wigan MBC [2010] EWHC 2412 (Admin) where an interim declaration was successfully obtained that the claimant is a child on the evidence before the Court and Wigan was directed to do an assessment with that presumption as a starting basis.

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