LS, R (on the application of) v Warrington Borough Council
[2024] EWHC 2872 (Admin)
KRA, R (on the application of) v Cheshire East Council
13 March 2024
[2024] EWHC 575 (Admin)
High Court
A young asylum seeker was wrongly judged to be an adult by a council. A judge said the council's assessment wasn't good enough and ordered them to treat the young person as a child until the real age is decided, because it's much worse to wrongly treat a child as an adult.
Key Facts
- •Claimant (KRA), an asylum seeker from Sudan, arrived in the UK on 21.8.23, claiming to be 16 (DOB 28.12.06).
- •Immigration officials assessed KRA's age as 23 (DOB 28.12.99).
- •Cheshire East Council conducted a brief age assessment concluding KRA was significantly over 18.
- •KRA is currently in shared adult accommodation and seeks interim relief pending judicial review to be housed and supported as a child under the Children Act 1989.
- •Both parties agreed that the age question should be determined substantively by the Upper Tribunal (UT).
Legal Principles
Age-assessment claims raise an objective factual question of whether a claimant is a child, determined afresh in judicial review proceedings.
R (FZ) v Croydon LBC [2011] EWCA Civ 59
Conventional judicial review grounds are often subsumed within the fresh factual determination of age.
R (FZ) v Croydon LBC [2011] EWCA Civ 59
The permission-stage question is whether the material raises a factual case that could succeed in a contested factual hearing.
R (FZ) v Croydon LBC [2011] EWCA Civ 59
The Administrative Court normally decides permission before considering transfer to the UT.
R (FZ) v Croydon LBC [2011] EWCA Civ 59 & R (SB) v Kensington & Chelsea RBC [2023] EWCA Civ 924
Physical appearance is notoriously unreliable in age assessments.
Various cases including R (BAA) v Liverpool City Council [2023] EWHC 252 (Admin)
The balance of justice considers the risks of injustice to both the claimant and the local authority.
Various cases including R (NS) v West Northamptonshire Council [2023] EWHC 1335 (Admin)
Where there is doubt about a young person's age, the dangers of treating a child as an adult are usually far greater than the risks of treating a young adult as a child.
ADCS October 2015 Guidance
Outcomes
Interim relief granted: Council to provide accommodation and support as a child until KRA's 18th birthday or final resolution of the judicial review.
The court found a real prospect of success at the substantive hearing, given weaknesses in the Council's age assessment and the significant risk of injustice to KRA if he remains in adult accommodation.
Permission for judicial review granted and case transferred to the Upper Tribunal.
This is the appropriate forum for the substantive determination of KRA's age.
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