R (ota JS) v Birmingham City Council
| Jurisdiction | UK Non-devolved |
| Judge | C M G OCKELTON |
| Judgment Date | 05 October 2011 |
| Neutral Citation | [2011] UKUT 505 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 05 October 2011 |
[2011] UKUT 505 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Mr C M G Ockelton, Vice President
Upper Tribunal Judge Warr
In the Matter of an Application for Judicial Review
For the Clamant JS: Mr Suterwalla, instructed by Bhatia Best Solicitors
For the Claimant YK: Mr Bedford, instructed by Sultan Lloyd Solicitors
For the Defendant: Mr Harrop-Griffiths, instructed by Birmingham City Council
R (ota JS) and R (ota YK) v Birmingham City Council (AAJR)
Local Authorities owe certain duties to children under the Children Act 1989 and other legislation. As the Supreme Court decided in R (A) v Croydon LBC [2009] UKSC 8, those duties are owed to those who are in fact under the age of eighteen, not only those who the Local Authority reasonably considers to be under the age of eighteen.
If the Local Authority refuses to provide benefits to a young person on the ground that he is not a child, the remedy is by challenge to the Local Authority's decision by way of Judicial Review. In addition to the normal grounds on which Judicial Review lies, the notion of illegality in this context encompasses a wrong assessment of age. Thus, in a case of this sort, it is open to a claimant to establish that, as a matter of fact, the Local Authority's assessment was wrong. The Court has, in other words, the task of assessing the claimant's age.
That task is in addition to the other tasks of the Court on Judicial Review. A Local Authority's decision on age may, like any other decision of a public body, be unlawful for failure to take into account relevant factors, or for taking into account irrelevant ones; it may simply be irrational. Considerations such as these may assist a claimant to establish that the Local Authority's decision should be quashed. But when the only issue is age, the proceedings are likely to be directed to an assessment of age by the Court, rather than merely to quashing the assessment already made, leaving the way open for the Local Authority to make a new one.
That must be particularly so when the case has reached an advanced stage of preparation. Days of court time will have been set aside for the hearing of evidence; witnesses will have been instructed; lawyers will have devoted considerable energy to preparing a precise case based on the evidence; the claimant seeks a substantive resolution of the disputed question of his age. It is very unlikely that at that stage the traditional processes and remedies of administrative law will provide an appropriate resolution of the case. The hearing will be directed not merely to seeing whether the Local Authority decision should be displaced, but, if so, to determining what the claimant's age most likely is.
Age Assessment is, however, an inexact science. The decision of a Court may be authoritative but it is not necessarily for that reason more nearly factually correct than an assessment by anybody else. And litigation should be a last resort: if the claimant can accept a Local Authority assessment, or if the parties can agree to compromise, there should be no need for the Court's intervention. The Judicial Review claim will not need to be brought, or, if brought, can be settled by consent. That is not in any sense a worse outcome than a full hearing, at the end of which the Court makes an assessment of the claimant's age. On the contrary, it is likely to be a better outcome. There is no “loser”; and a great deal of time and money is saved.
Unfortunately, however, settlement of the issue between the claimant and the Local Authority may not be the end of the matter. Even a judicial decision on the issue between the claimant and the Local Authority may not be the end of the matter. The reason for that is as follows.
Many, perhaps most, of the young people who raise these issues have come to the United Kingdom as asylum claimants. The issue arises because they have no documents. They make an asylum claim to the Secretary of State for the Home Department. An officer of the UK Borders Agency may assess the claimant's age under section 94(7) of the Immigration and Asylum Act 1999, as part of the process of deciding whether he is entitled to NASS support; or he may simply need to take the claimant's age, or claimed age, into account in assessing any risk he would face on return to his own country. Further, the Secretary of State has developed and published policies for the granting of leave to unaccompanied asylum-seeking minors, even if they are not entitled to status as refugees. There may or may not be a negative decision on the asylum claim. If there is a negative decision, there may or may not be an appeal. In any case, the decision of the Secretary of State or a judge of the Tribunal may incorporate an assessment or a judgement of the claimant's age. Based on it, the claimant may be issued with status documents giving his age as so ascertained. And experience shows that that assessment or judgement may be different, sometimes very different, from any assessment made by the Local Authority.
What then? From being in a position in which the claimant did not know his age, he now has two officially ascertained ages. If he is asked how old he is, he must respond “it depends who is asking”. And because of the difference in responsibility for the housing of asylum-seekers over and under eighteen years old, he may find that neither the Secretary of State (who operates the NASS System for those over eighteen) nor the Local Authority for the area in which he is (which has duties to those under eighteen) is prepared to house him. The Secretary of State refuses, because she accepts that he is under eighteen; and the Local Authority refuses because it considers that he is not.
This is obviously both unsatisfactory and unjust. Unfortunately in many cases it is not readily capable of satisfactory resolution, even on the basis of an Age Assessment by the Court. An assessment made by the Court in proceedings against a Local Authority is not a judgement in in rem and does not bind the Secretary of State. If authority is needed for that proposition it is to be found in the judgement of Hickinbottom J, in R (PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin). There is a further consequence, which is that the Secretary of State does not need to be joined as an interested party, and perhaps cannot be: she is not a person directly affected by the proceedings within the meaning of CPR 54.1(2)(f). Anyway, she will not be joined as a defendant, by a claimant who is prepared to accept her assessment, but not that of the Local Authority. And she will not be joined as a defendant by a Local Authority anxious to perform its own duties but unconcerned with and not able to afford to be concerned with, the actions of another public body whose decisions do not bind it.
There is a further, procedural problem. Following the decision of the Supreme Court in R (A) v Croydon, a judicial initiative was developed, allowing transfer of Age Assessment Judicial Reviews to the Upper Tribunal. Such transfer can take place under section 31A of the Senior Courts Act 1981, as inserted by section 19 of the Tribunals, Courts and Enforcement Act 2007. It has the sanction of the Court of Appeal in R (FZ) v Croydon LBC [2011] EWCA Civ 59 at [31], and such business is assigned to this Chamber by Article 11(c)(ii) of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010 (SI 2010/2655). The Immigration and Asylum Chamber is considered to have the appropriate expertise, because of hearing asylum and other cases in which the age of a claimant, particularly a claimant from abroad, is an issue.
But the Tribunals, Courts and Enforcement Act 2007 was passed at a time when the appeals process for immigration and asylum matters had recently been reformed; and it was no doubt considered inconceivable that such causes would ever come before the new Tribunals established by that Act. A consequence is that one of the conditions of the transfer of a Judicial Review application to the Upper Tribunal is, as specified in section 31A (7) of the Senior Courts Act 1981:
“(7) Condition 4 is that the application does not call into question any decision made under –
(a) the Immigration Acts,
(b) the British Nationality Act 1981,
(c) any instrument having effect under an enactment within paragraph (a) or (b), or
(d) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British national (Overseas) or British Overseas citizenship.”
So if the Secretary of State is joined as a party, the claim cannot be transferred to the Upper Tribunal, and the benefits of expertise, speed and reduced cost are lost. And the joinder of the Secretary of State after transfer would result in even more waste, if the claim needed to be transferred back to the High Court.
There are thus motives for avoiding the involvement of the Secretary of State. On the other hand, the background to the dispute between the claimant and the Local Authority may, as we have indicated, include a decision by the Secretary of State or a judgement by the Tribunal, in each case under the Immigration Acts. And it may be that one party or the other seeks to rely on it.
It is with those matters in mind that directions were given in the present cases to enable the examination, as a preliminary issue, of the impact of decisions already made under the Immigrations Acts, on the course or the outcome of proceedings for Judicial Review against...
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