KRA, R (on the application of) v Cheshire East Council
[2024] EWHC 575 (Admin)
MS, R (on the application of) v Kent County Council
22 October 2024
[2024] EWHC 2661 (Admin)
High Court
A young asylum seeker challenged the government's decision saying he was an adult. A judge looked at all the evidence and decided there was enough doubt to give him a temporary win – requiring the local council to treat him as a child while they review their decision. The main case is paused until that review is done.
Key Facts
- •MS, an Afghan national, arrived in the UK on 27 October 2022 claiming asylum and claiming a date of birth of 17 October 2006.
- •Kent County Council conducted an age assessment concluding MS was significantly older (DOB 16 October 2000).
- •MS challenged the age assessment via judicial review, relying on his Tazkira (Afghan identity document).
- •MS sought interim relief to be treated as a child under the Children Act 1989 pending age determination.
- •The court considered expert evidence on the Tazkira's authenticity from both sides.
- •The court considered hearsay evidence regarding the Tazkira's verification with Afghan authorities.
Legal Principles
Permission to apply for judicial review of an age assessment based on factual error is granted if the material raises a factual case that could succeed in a contested hearing.
R (FZ) v. London Borough of Croydon [2011] EWCA Civ 59
The test for granting interim relief in judicial review involves demonstrating a serious issue to be tried and considering the balance of convenience, including public interest.
American Cyanamid Co. v. Ethicon Ltd [1975] AC 396; R (Medical Justice) v. Secretary of State for the Home Department [2010] EWHC 1425 (Admin); R v. Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] A.C. 603
No party may call an expert or submit an expert report without court permission (Civil Procedure Rules 1998, Rule 35.4(1)).
Civil Procedure Rules 1998, Rule 35.4(1)
Hearsay evidence is admissible under s.1 of the Civil Evidence Act 1995, but its weight is affected by its nature (multiple hearsay).
Civil Evidence Act 1995, s.1
Local authorities have a statutory duty under s.23C of the Children Act 1989 to support care leavers, even if asylum support is also available.
Children Act 1989, s.23C; R (SO) v. London Borough of Barking & Dagenham [2010] EWCA Civ 1101
Outcomes
Interim relief granted: Kent County Council must treat MS in accordance with his claimed age under the Children Act 1989.
The court found an arguable case that MS was entitled to s.23C support as a care leaver, considering the expert evidence supporting the Tazkira's authenticity, hearsay evidence, initial Home Office assessment, and MS's vulnerability.
Permission to rely on Dr. Zadeh's expert evidence on the Tazkira's forensic examination granted; other parts of his report refused.
Dr. Zadeh's forensic examination was deemed reasonably required, but his facial recognition and linguistic analysis were not.
Permission to rely on Mr. Johnson's expert report granted.
Mr. Johnson's evidence was deemed reasonably required to resolve the proceedings.
Permission to rely on Dr. Giustozzi's report refused (considered as hearsay).
The report was deemed hearsay evidence, not expert evidence.
Judicial review proceedings stayed pending completion of Kent's review of its age assessment.
The court deemed it premature to grant permission for judicial review before Kent's review was complete.
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