Upper Tribunal (Immigration and asylum chamber), 2020-01-06, JR/06410/2018

JurisdictionUK Non-devolved
Date06 January 2020
Published date10 January 2020
Hearing Date13 December 2019
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberJR/06410/2018

JR/6410/2018



UTIJR6

JR/6410/2018

Heard on 23 September, and 12 and 13 December 2019


Upper Tribunal

Immigration and Asylum Chamber


Judicial Review Decision Notice



The Queen on the application of T T

Applicant

v


Derby City Council

Respondent



Before Upper Tribunal Judge Norton-Taylor

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the applicant or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.


Representation:

For the applicant: Ms A Benfield, Counsel, instructed by Bhatia Best Solicitors

For the respondent: Mr L Parkhill, Counsel, instructed by Derby City Council



Application for judicial review: substantive decision


Introduction

  1. The applicant, a citizen of Eritrea, challenges the decision of the Respondent, dated 22 June 2018, that he was an adult with an attributed date of birth of 2 July 1998, following an age assessment.


  1. The applicant asserts that he was born on 2 July 2002 and was, at the date of the respondent’s decision, 16 years old. On his case, the applicant is now 17.


  1. There is, quite clearly, a significant disparity in the parties’ respective positions.


  1. The core issue in this application for judicial review is whether, as a matter of fact, the applicant is a child or not. This issue is for me to determine, having regard to all relevant evidence adduced, and on an application of the balance of probabilities. Neither party bears the burden of proof.


Relevant procedural history

  1. The applicant arrived in the United Kingdom on the evening of 31 January 2018. Having been encountered by the Home Office in the early hours of the following day, an initial screening interview was conducted at which stage the applicant formally made a protection claim in this country. The Home Office formed the view that the applicant was an adult, contrary to his assertion that he was a child. The applicant was referred to the respondent on 20 February 2018 and a request was made for supported accommodation under the Children Act 1989 and for an age assessment to be undertaken. At this stage, or soon thereafter, the Home Office placed the applicant’s protection claim on hold, pending the outcome of the age dispute issue (that claim remains outstanding to date). In the absence of what was considered sufficient action by the respondent, an initial judicial review claim was made on 6 March 2018. On 13 March 2018 the respondent commenced the age assessment procedure, with subsequent meetings taking place on 17 April, 6 May, and 22 June 2018. Permission to bring judicial review proceedings was refused by HHJ McKenna on 8 May 2018. That initial judicial review claim was not pursued further.


  1. The age assessment was completed on 22 June 2018 and a decision made that the applicant was an adult. On 19 July 2018 the applicant’s representatives sent a Letter Before Action setting out their objections to the way in which the assessment had been conducted, together with criticisms of the assessment report itself. Unsatisfied with the response, this claim for judicial review was lodged in the Administrative Court on 23 August 2018 (sealed by the Court a day later and attributed the reference number CO/3354/2018). An Acknowledgement of Service, together with summary grounds, was lodged on or about 7 September 2018. By an order sealed on 27 September 2018, HHJ Worster granted permission, transferred the case to the Upper Tribunal, and made an anonymity direction (upon the granting of permission, the respondent had agreed to support and accommodate the applicant). On the same occasion, the current reference number of JR/6410/2018 was substituted for the initial Administrative Court reference. Thereafter, the Upper Tribunal issued a set of detailed case management directions in order to ensure that the substantive hearing would proceed efficiently.


  1. Matters progressed smoothly until the morning of the first day of the substantive hearing on 23 September 2019. At this late stage it transpired that the Upper Tribunal had not booked a Tigrinyan interpreter for the applicant and his two witnesses. Without wishing to attribute particular blame for this unfortunate state of affairs, it does appear as though the omission was caused in part by administrative oversight by the Upper Tribunal, and also by a failure by the applicant’s legal representatives to respond to a specific email relating to the need for an interpreter, sent in early September 2019. In any event, despite the best efforts of all concerned to find a way through this difficulty, the hearing had to be adjourned.


Preliminary issue

  1. By an application notice sealed by the Upper Tribunal on 20 September 2019, the applicant sought permission for his Litigation Friend, Ms Yasmin Begum from the Refugee Council, to cease to act in this capacity. At the hearing, both parties were in agreement that this course of action would be appropriate and that, in light of R (on the application of JS and Others) v Secretary of State for the Home Department (litigation friend - child) [2019] UKUT 64 (IAC), the applicant no longer requires a Litigation Friend.


  1. Having regard to all relevant circumstances, I granted the application. Ms Begum is therefore no longer the Litigation Friend in these proceedings and the applicant shall no longer have anyone appointed in that capacity.


The applicant’s case in summary

  1. In essence, the applicant’s challenge is twofold. First, it is said that the respondent’s age assessment was carried out in a procedurally unfair manner because no proper “minded-to” process was followed. In other words, relevant adverse matters were not put to the applicant before the final decision was made, thereby depriving him of an opportunity to address concerns. In this way, the resulting age assessment was not in accordance with the well-known Merton principles (R (B) v London Borough of Merton [2003] 4 All ER 280).


  1. Second, the applicant asserts that the reasons put forward by the respondent for disputing his claimed age are insufficient and based upon a flawed approach as regards a number of relevant factors. Particulars, supported by references to case-law, are set out in the grounds of challenge and I do not propose to recite them here.


The respondent’s case in summary

  1. The respondent asserts that a “minded-to” process was adopted in this case and there was no procedural unfairness. This is so even if certain adverse points had not been raised with the applicant prior to the final decision being made.


  1. As to the applicant's substantive challenge, the respondent contends that the various factors relied on in the age assessment were all valid, and that the social workers were fully entitled to take them into account when reaching their overall conclusion.


The evidence

  1. The written evidence in this case is contained within a comprehensive agreed bundle, indexed and divided by tabs 1-34. What follows is by way of a summary of the written evidence. Similarly, the oral evidence is set out in very condensed form (a full note is contained in the record of proceedings). Relevant aspects of the written and oral evidence will be dealt with in greater detail when I set out my assessment and conclusions, below.


The applicant’s written evidence

  1. There are four witness statements from the applicant, dated 15 August 2018, 14 February 2019, 4 September 2019, and 10 September 2019.


  1. Without reciting this evidence at length, the general thrust of the statements is as follows. The applicant says that he is from a rural area of Eritrea, where he lived with his parents and two younger siblings. His father was in military service and therefore did not reside with the family very often. The applicant did not attend school. During his time in Eritrea he was unaware of his age, as this was not an issue of any importance in that country, or at least within his community. In 2016, the applicant and his friend were playing outside when they were arrested by soldiers who suspected them of attempting to leave the country illegally. The two were taken to an informal detention centre and held for a day before being released. Approximately a week later there was a religious festival in the applicant’s village. The applicant knew that this event took place on 21 January every year because the church used the “Geez” calendar. The applicant also new that it was 2016. When leaving the festival, the applicant and his friend saw soldiers approaching. Afraid that they might be arrested again, the two walked until they entered Ethiopia. From there a lengthy...

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