F (Eritrea), R (on the application of) v Secretary of State for the Home Department

This is a renewed application for permission to appeal the decision of Tribunal Judge Lane in the Upper Tribunal Immigration and Asylum Chamber. I shall not set out the facts of this matter in any greater detail than absolutely necessary to explain the decision that I have reached.

The applicant, “F” is a citizen of Eritrea. He arrived in the United Kingdom in March 2014 having landed in Italy from Libya some months earlier. Under the Dublin agreement, his application for asylum should be dealt with in Italy. However, on arrival in the United Kingdom, F gave a date of birth of 15 February 1998 which, if accurate, meant that he was just 16.

An immigration officer assessed him as being over 18, having formed the view that his physical appearance strongly indicated that he was significantly over the age of 18 and, in the absence of any other evidence to the contrary, that decision was in accordance with the Secretary of State’s policy for determining age. The applicant was detained pending removal to Italy. He brought judicial review proceedings which failed. He changed solicitors and brought fresh proceedings, these proceedings, alleging that the Secretary of State’s policy which permits assessment of age by reference to physical appearance had been wrongly applied. Supperstone J refused to allow that claim to proceed, saying that the operation of the policy had been clearly lawful. The applicant appealed relying on an amended ground, the gist of which was that the policy itself is unlawful. The old grounds were abandoned.

Ouseley J assigned the appeal to the Upper Tribunal. There were then some ancillary proceedings; a stay was imposed on F’s removal and he was granted bail which continues to the present time. The appeal and the application to amend went to Tribunal Judge Lane. The argument for the applicant was that the policy is unlawful because assessment of age by appearance is inherently unreliable. Evidence was brought from distinguished bodies such as the Royal College of Paediatrics and Child Health to support this contention. It is common ground that Local Authorities are not permitted to assess age by appearance alone; they are required to carry out a holistic assessment which is accepted as being satisfactory in the sense that it is “Merton compliant” after the name of the case in which those requirements were laid down.

For the applicant, it was argued before the Upper Tribunal that it was wrong that different criteria and standards should be applied by immigration officers (from those applied by Local Authorities) to what was essentially the same question; is this person a child? It was also argued on the applicant’s behalf that mistakes were being made in age assessment in the immigration context and that as a result children were being detained in adult facilities. This was said to be a matter of considerable public importance. The Secretary of State opposed the application arguing, amongst other things, that the Supreme Court had approved her policy in The Queen (AA Afghanistan) v Secretary of State for the Home Department [2013] UK SC49. Tribunal Judge Lane refused permission to amend and rejected the appeal, he also refused the application to appeal to this court. He was influenced by the decision of the Supreme Court and unimpressed by the evidence of the unsatisfactory nature of assessment by appearance alone. He also appeared to be unimpressed by the argument that this was a matter of public importance.

The same arguments were advanced before this court on an application for permission to appeal. The application was rejected by the single judge on paper and comes before me on a renewed application advanced by Mr Butler who has appeared for the applicant throughout. I confess that, but for another factor, to which I will shortly come, I would have been prepared to grant permission to appeal. I think that the points relating to the unreliability of assessment based on appearance alone and the potentially unsatisfactory dichotomy between the evidence required to be used by Local Authorities on the one hand and the Secretary of State’s policy on the other are both arguable. I am of course concerned that the chances of success in judicial review may be somewhat lessened given the observations of the Supreme Court in AA. I accept however that that the case is not strictly binding on this Court because it addresses a different issue but the approval expressed by the Supreme Court must, I think, be strongly persuasive.

However, there is now another factor that has arisen in this case. Since the decision in the Upper Tribunal, the applicant has undergone what purported to be a holistic assessment by Local Authority social workers. They declared the applicant to be an adult. This morning, on my inquiry, I was told that the Secretary of State appears to have made a further decision in reliance on the Local Authority assessment. That means that if that assessment remains standing, these proceedings, judicial review, become moot or academic so far as F is concerned. It is possible that they could still give rise to matters of public importance but they would be moot so far as the applicant personally is concerned.

However, I have now been told that F has begun a fresh set of judicial review proceedings which are at an early stage. He seeks to challenge the Local Authority’s assessment as being wrong. The respondents to the application are the Local Authority concerned, which is Newport, and, I understand, also the Secretary of State Home Department because of her reliance on the Local Authority assessment. This presents me with a problem because I do not know whether those proceedings will uphold the Local Authority’s assessment of F as being an adult, in which case these proceedings in effect fall to the ground or whether that assessment will be undermined in some way in which case, these proceedings remain live for F.

This morning in discussion with Mr Butler he has proposed a compromise which is this. I would grant permission to appeal to the full court but that that appeal should not be listed until the outcome of the fresh judicial proceedings are known. Mr Butler has given me an undertaking on instructions and in the presence of the representative of his solicitors that, if those proceedings fail, this appeal will be withdrawn. That compromise, which I accept, has the advantage of keeping alive these proceedings because in my judgment, the arguments that have been advanced are arguable before the full court and do warrant further discussion, provided they are not purely academic. If they were purely academic I would not grant permission simply on the basis that they give rise to issues of general public importance because I consider that there will be other cases where those issues can be discussed and determined in a case in which they do give rise to a genuine live issue.

Accordingly, permission to appeal is granted subject to those conditions. I mention also that the Secretary of State invited me to discharge the stay, for obvious reasons I do not do so.