Case Nos: AC-2026- LON-000147
AC-2025-LON-004527
ADMINISTRATIVE COURTThe Royal Courts of Justice
Strand
London WC2A 2LL
BEFORE:
MR JUSTICE BUTCHER
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BETWEEN:
THE KING
(on the application of BXY)
Claimant
- and -
(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) THE LONDON BOROUGH OF HILLINGDON
Defendants
AND BETWEEEN
THE KING
(on the application of EXR)
Claimant
- and -
(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) THE LONDON BOROUGH OF HILLINGDON
Defendants
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MS STEPHANIE HARRISON KC, MS GEORGIE REA and MS HANNAH LYNES (instructed by Duncan Lewis Solicitors) appeared on behalf of the Claimant BXY.
MS SHU SHIN LUH and MS AGATA PATYNA (instructed by Bindmans) appeared on behalf of the Claimant EXR.
MS CATHRYN MCGAHEY KC and MR PAUL ERDUNAST (instructed by the Government Legal Department) appeared on behalf of the First Defendant in each action.
MR DOMINIC HOWELLS (instructed by London Borough of Hillingdon Legal) appeared on behalf of the Second Defendant in each action.
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APPROVED RULING
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MR JUSTICE BUTCHER; This is a hearing which was fixed to determine applications by EXR for permission to proceed with judicial review and for interim relief, and for interim relief in BXY's case, including all issues relating to disputes as to age which are common to or arise in either case. The hearing was ordered by Sheldon J on 9 March 2026.
Very briefly, BXY is a Yemeni national, who arrived in the United Kingdom by small boat on 18 October 2025. He claimed asylum and was detained on arrival. He told officials he was 22 years of age. On 19 October 2025, he was transferred in detention to Harmondsworth IRC, pending removal to France pursuant to the agreement between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the French Republic on the Prevention of Dangerous Journeys, which I will call the "UK-France Treaty". He then told detention staff that his date of birth was, in fact, 2 May 2008, making him a child, 17 years of age then and now, and therefore outside the scope of the UK-France Treaty.
He subsequently attended an initial age assessment and it was decided that his physical age and appearance suggested he was significantly over 18 years of age.
BXY also claims to be a victim of trafficking and modern slavery, by way of multiple instances of forced labour in several countries, including Yemen, and to be the victim of torture. His case was referred to the NRM and he received a negative reasonable grounds decision.
On 7 January 2026, the Secretary of State declared his asylum claim inadmissible and certified his human rights claim. Removal directions were set but were later deferred. Proceedings for judicial review were commenced on 13 January 2026.
At a case management hearing on 19 February 2026, Chamberlain J directed a rolled-up hearing of a number of judicial review challenges brought by individuals who were at risk of removal under the UK-France Treaty. That hearing is due to take place starting on 28th April 2026. It involves claimants who contend that they were the victims of trafficking prior to their arrival in the United Kingdom.
Chamberlain J also directed that there should be a joint interim relief hearing to consider some issues that might arise on applications for interim relief pending the common issues hearing. That took place before Sheldon J on 3 to 4 March 2026. At that hearing, Sheldon J considered the application for interim relief in the case of R (AYA) v Secretary of State for the Home Department. He did not consider interim relief in the case of BXY (or of EXR), because they involved disputed age assessments. As I have said, Sheldon J ordered that permission on issues relating to age and the resolution of whether there should be interim relief should be determined at a hearing on 24 to 25 March, which came to be listed before me.
The other case before me is that of EXR. EXR is a national of Eritrea, who arrived in the United Kingdom on 29 September 2025, and claimed asylum. On his arrival, he stated that he was born on 22 July 2000, which made him 25, and that he was a married man. On 2 October 2025, EXR was served with a notice of intent, which declared his asylum claim inadmissible and notified his intended removal to France under the UK-France Treaty. On 3 October 2025, EXR had an NRM interview and was referred to the NRM victim identification process.
On 10 October 2025, the Secretary of State made a negative reasonable grounds decision based on his alleged exploitation in Ethiopia and Belarus, but did not make a decision in relation to the alleged exploitation in Eritrea or France.
On 13th October 2025, EXR claimed to be a child, but the Home Office determined that he was not a child. On 20 October 2025, EXR provided an electronic copy of a certified copy of a birth certificate, which gave his date of birth as 22 July 2008. He provided that electronic document again on 23 October 2025 and, on the same day, the Secretary of State maintained her conclusion that EXR was an adult.
On 4 November 2025, EXR sought reconsideration of that conclusion, based on alleged misapplication of the relevant policy, together with evidence of his having been trafficked. On 5 November 2025, the London Borough of Hillingdon assessed EXR and concluded he was an adult. On 28 November 2025, the Secretary of State maintained that EXR was an adult, based on the age assessment completed by the London Borough of Hillingdon.
On 10 December 2025, EXR was served with removal directions set for 18 December 2025, together with a decision of inadmissibility and refusal of his asylum claim and certification of his human rights claim.
On 16 December 2025, EXR issued the present claim for judicial review, together with an application for urgent consideration and interim relief to stay his removal. On 17 December 2025, interim relief was granted by Mould J. At that hearing, the Secretary of State had indicated that she was content for the court to proceed on the assumption that there was a serious issue to be tried as to whether the assessment of EXR's age was legally flawed. Mould J regarded that as of central importance in the assessment of the balance of convenience. He said, in essence – noting that this is not taken from a transcript but an agreed note of his judgment – that there is, undoubtedly, a strong public interest in the Secretary of State’s being able to pursue the one-in-one-out policy, but the public interest is shaped by the four corners of the treaty itself and does not extend to the return of unaccompanied minors. In this case, given that the Secretary of State was content to proceed at that hearing on the assumption that there was a serious issue as to whether the age assessment was legally flawed, Mould J was in no doubt that the overriding consideration on balance of convenience must be to preserve the status quo. On that basis, he saw no proper or sustainable alternative but to grant the injunction. He, therefore, ordered the Secretary of State to be restrained from removing EXR to France until final determination of his claim for judicial review or further order.
On 22 December 2025, EXR was released from detention. On 22 January 2026, the London Borough of Hillingdon made a further age assessment, again concluding that EXR was an adult.
On 2 February 2026, the Secretary of State made a further age assessment decision concluding that EXR was over 18. On 12 February 2026, EXR's solicitors received a hard copy of what was said to be EXR's birth certificate and, on 23 February 2026, informed the Secretary of State of this and of other evidence, including witness statements from family members, to which I will return.
On 6 March 2026, the Government Legal Department realised that the electronic copy and the hard-copy birth certificates were not the same document. On 9 March 2026, the Secretary of State issued a supplemental decision letter on age, again concluding that EXR was over 18. On 17 March 2026, the Secretary of State set removal directions for 26 March 2026.
EXR raises a number of grounds of challenge. They include issues relating to trafficking, which are the same as the issues which will be considered at the common issues hearing in April. But they also include as ground four that there was an unlawful decision to treat EXR as an adult. That ground includes that the Secretary of State was in breach of her own Assessing Age policy, and that her decisions on age were unlawful and could not form a lawful and solid basis on which to invoke Article 4(1)(b) of the UK-France Treaty.
Supplemental grounds in relation to this age issue were filed on 23 February 2026. These included a contention that the basis on which the Secretary of State placed no weight on EXR's copy of his birth certificate was unlawful, unfair and/or irrational, and that the Secretary of State had failed to consider all relevant evidence from EXR about his age; that the London Borough of Hillingdon's age assessments of 5 November 2025 and 22 January 2026 were unlawful and not compliant with the Merton guidance; and that, as EXR was an adult, he could not be subject to the inadmissibility process and could not be removed under the UK-France Treaty.
The Secretary of State has resisted EXR's application for permission to proceed with judicial review. One point taken by the Secretary of State, both in relation to EXR's case and in relation to BXY's case, was as follows. The Secretary of State accepted that, in most cases, the applicable test for permission in an age assessment case is whether the claimant has a realistic prospect of persuading the Upper Tribunal that the assessed age is incorrect: that test being derived from the decision of the Court of Appeal in R (FZ) v Croydon London Borough Council [2011] EWCA Civ 59. However, in cases in which there is an age dispute relating to an individual whom the Secretary of State intends to remove to France, conventional public law principles apply, because the UK-France Treaty does not require age to be determined as a question of precedent fact. Instead, the United Kingdom must confirm that the person in question has been determined by authorised officers to be an adult. Reference is made to the decision of Swift J in R (DCW) v Secretary of State at the Home Department [2025] EWHC 3476 (Admin), especially paragraphs 13 to 15.
Both EXR and BXY served skeleton arguments for this hearing on the basis that this issue was to be resolved. However, in the Secretary of State's skeleton argument, a different position emerged. The Court was invited to adjourn the case of BXY and it was said that it was hoped that a consent order would soon be available. In relation to both cases, it was said that, for the purposes of this hearing, the Secretary of State conceded that it was properly arguable that the FZ test is the correct one and she, therefore, invited the Court to apply it.
At the hearing yesterday, Ms Harrison KC, for BXY, complained about the way in which this concession had been made and sought clarification of the cases to which it would relate and as to its ramifications. Ms McGahey KC, for the Secretary of State, clarified that the Secretary of State would adopt the same stance in relation to applications for interim relief in all UK-France Treaty cases, where an age issue arose, until there had been a final determination at a substantive hearing of the issue of what was the correct test.
I resolved that, as the issue of whether there should be permission for judicial review on ground one in the BXY case was before me and as there was no principled objection to such permission, nor was there an application to adjourn, there should be permission for judicial review on ground one.
Other directions were the subject of agreement and have been included in an agreed order. These include an undertaking by the Secretary of State that a copy of the order, which includes a recital of the Secretary of State's concession that it is properly arguable that age is a question of precedent fact for the purposes of decisions on inadmissibility and removal to France and that the test to be applied on an application for judicial review on an age dispute is as set out in FZ, shall, if not impracticable, be provided to the court in any future age dispute case under the UK-France Treaty, pending final resolution by the Administrative Court on a full hearing of the correct approach to be applied in such age dispute cases. That meant that the issues in the case of BXY which were before me had been resolved, and Ms Harrison KC and most of her team withdrew.
In the case of EXR, however, the Secretary of State denied that, even applying the FZ test, there was a factual case which, taken at its highest, could properly succeed in a contested factual hearing. There were other issues in his grounds which were raised, including that there was a serious issue to be tried on the issue of victim identification. This is because the NRM referral of 3 October 2025 had referred to four episodes of alleged trafficking in Eritrea, Ethiopia, Belarus and France, but, as I have said, the Secretary of State only reached a decision on two of those episodes and failed to make a reasonable grounds decision on the others. Further, there is a challenge to the Secretary of State’s decision to remove the right to reconsideration of the negative reasonable grounds decisions in relation to Ethiopia and Belarus because he was an individual intended to be removed to France.
However, the Secretary of State accepted that, if there was a case on which permission should be given on the age issue, these other issues did not matter for the purposes of this hearing. In those circumstances, the Secretary of State's application to discharge the interim injunction would fail and the injunction would remain in place.
I turn, therefore, to the age issue. The starting point is to consider the FZ test, which it is agreed should be applied on this hearing, in more detail. What was said in that case included the following in paragraphs 7 to 9:
Mr Haddon promoted a view on behalf of the respondent that, in practice, the court is seen as giving permission too freely. He submitted that due weight should be given to a decision of the local authority reached by a Merton-compliant process. He was, we think, inclined to submit that it was for the claimant to show at the permission stage that the local authority's assessment was arguably wrong. Insofar as this tended to be a debate about a burden of proof, we do not think it is persuasive one way or the other at the permission stage. The essential eventual issue is one of precedent fact for the court to decide. At the permission stage, the claimant has to show that he has a properly arguable case on the facts in the light of the evidence before the court, the local authority's assessment and other relevant facts or circumstances. We are wary lest reformulation of, or discussion about, Holman J's unchallenged formulation may muddy the waters by substituting one necessarily general formulation for another.
We do, however, consider that the question now under discussion is broadly analogous with the question in defamation proceedings of when a party is entitled to require issues of fact be determined by a jury. For the law on this topic, see Alexander v Arts Council of Wales, [2001] 1 WLR 1840 at paragraph 37. In defamation proceedings, issues of law are for the judge and normally, by section 69 of the Senior Court Act 1981, the parties are entitled to a jury trial on material issues of fact. In so far as issues depend on an evaluation of evidence so as to determine material questions of disputed fact, these are matters for the jury. But it is open to the judge in a libel case to come to the conclusion that the evidence, taken at its highest, is such that a properly-directed jury could not properly reach a necessary factual conclusion. In these circumstances, it is the judge's duty, upon submission being made to him, to withdraw that issue from the jury. That is the test applied in criminal jury trials: see R v Galbraith [1981] 1 WLR 1039 and 1042C. It applies equally in libel actions.
There is an analogy between the court withdrawing a factual case or matter from the jury in defamation proceedings and the court refusing permission to bring judicial review proceedings on a factual issue as to the claimant's age. We consider that at the permission stage in an age assessment case the court should ask whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If so, permission should be refused. If not, permission should normally be granted, subject to other discretionary factors, such as delay. We decline to attach a quantitative adjective to the threshold, which needs to be achieved here for permission to be given.”
Then at paragraphs 26, 27 and 29, this was said:
As for the main question in this appeal, we have already discussed what we consider to be the correct approach to the grant or refusal of permission where an applicant seeks to have the court determine on evidence that his age is not that which the local authority have determined. In short, the court should ask whether the material before it raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing.
As we read his judgment, the deputy judge refused permission, because the local authority, in his view, conducted a proper Merton assessment; because inconsistencies in the assessment relied on were immaterial and unpersuasive; because one of the procedural failures relied on was not established and the other did not make the process materially unfair; and because the local authority's reasons for disregarding the vaccination card were persuasive. Underlying these reasons is the inferential finding that the local authority were entitled to disbelieve the appellant as to his age, and that he had no realistic prospect of establishing in court what he had failed to establish when he was interviewed by the local authority assessors …
In our judgment, this is a case where permission to proceed to a factual hearing on evidence should be granted. One factor contributing to that conclusion is that there were two procedural lapses. However, our main reason is that we do not consider that the appellant's factual case taken at its highest could not properly succeed in a contested factual hearing. The appellant is recorded as giving a a reasonably consistent factual account, and the initial apparent inconsistency between his claimed age and his claimed date of birth was capable of being explained. There were no glaring inconsistencies in his account, nor clear analytical reasons why his account was unbelievable. The vaccination card was not obviously a forgery and the series of dates which it gives for the various vaccinations is positively consistent with his claimed date of birth and positively inconsistent with a birth date two years earlier. It may to a layman be mildly odd if he had had a hepatitis B and BCG vaccination on the very day of his birth. But, for all we know, that may well be the practice in Iran and elsewhere. It would be much more strange, if he had had no vaccination at all until he was two years old. We take account of the fact that the social workers would have been able to judge his general appearance and demeanour, and to make a general credibility judgment from the manner in which he answered their questions. It does not follow that the court would be bound to make the same judgments; nor is general credibility, judged by others, alone sufficient for the court to refuse permission for a factual hearing before the court, when it is for the court to determine in a disputed case the fact of the young person's age.”
Those passages make clear that the claimant's case has to be taken at its highest. It is also worth recalling that the test in Galbraith, referred to by the Court of Appeal in FZ, involves that, if the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or other matters which are, generally speaking, within the province of a jury and where, on one possible view of the facts, there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the matter should proceed. Applied in the present context, that must mean that, if one possible view of the facts is that the claimant is a child and whether he is or not depends on issues of credibility, that usually means that there should be permission to proceed to a factual hearing. If there is a case which meets the FZ test, then there will have to be a fact-finding hearing. At such a hearing, age will be determined as a question of fact. Although a public authority's age determination is evidence, and may be good evidence, which will be taken into account with the other evidence adduced at the hearing, there is no presumption that it is correct. The court may take a different view and the initial decision maker is not afforded a margin of discretion in such matters.
Applying the FZ test, I consider that, on the material before me, there is a case which, taken at its highest, could properly succeed in a contested factual hearing. The reasons are straightforward:
It is EXR’s evidence, in three witness statements bearing statements of truth, which recognise that he may be in contempt of court if they are false, that he was born in 2008.
Those statements give an account of his knowledge of his date of birth, of his schooling and of receiving a letter asking him to join the military in 2023 and of his capture by the Eritrean authorities, which is not, on its face, so incoherent or contradictory that it could not be believed.
His case is also supported by the copy of the birth certificate, although it is not dependent upon the birth certificate. An explanation of the way in which this was obtained and why there are two copies of the birth certificate, or, rather, two birth certificates, is given, again under statements of truth, by EXR's paternal uncle and by his cousin. There is some, albeit limited, support for the authenticity of the birth certificate in the reports of Dr Cameron, who, despite the most regrettable errors in her first report, does give evidence that there is nothing which demonstrates that the birth certificate is a fabrication.
EXR's account of his being conscripted at the age of 14 is consistent with Gov.uk guidance on Eritrea and is not implausible.
There clearly are a series of points which can be said to suggest that EXR's account is untrue. Most significant of these is that, on arrival in the United Kingdom, he claimed to be 25 and married. He has an explanation of why he said that, namely that he thought, as a result of what the people smugglers had told him, that it would increase his chances of being granted asylum; and this can be said to be corroborated by his cousin's witness statement. Ms Harris's witness statement indicates that it is not uncommon for smugglers to give such advice. Clearly, however, that EXR said that he was 25 and married either suggests that that is true or shows that he is prepared to lie to the authorities about his age and whether he is married. Further, that there are two birth certificates was not a point which was mentioned by those representing EXR or his family members until after the Government Legal Department had noticed that the hard-copy birth certificate was not the same as the electronic version supplied earlier. Moreover, it can be said with some force that the uncle's first witness statement seems to indicate that there was only one birth certificate and does not mention a second when it could have been expected to do so. Further, there are the age determination exercises carried out by the London Borough of Hillington, which I am prepared to accept were what is called in shorthand "Merton-compliant" and procedurally fair. Those are indeed cogent points.
However, while there are real questions as to EXR's credibility and reliability, they are not such as to mean that EXR's account cannot be true. It cannot be said, in the present case, that to accept the witness evidence which has been adduced is a course which could not properly be taken at a contested factual hearing. On one possible view of the facts, there is evidence on which it could be found that EXR is a child. To put the matter another way, to accept EXR's account would not be irrational. It is given in statements under sanction of possible contempt proceedings and where there is no clear and obvious contradiction of that account from other contemporary documentation or, say, an independent witness.
In those circumstances, I conclude that there is a serious issue to be tried as to age and that there should be permission in that regard. Further, in relation to interim relief, I consider that the position has not materially changed as to balance of convenience since the decision of Mould J.
Ms Luh made it clear that, if she succeeded in relation to permission to proceed to a factual hearing on the age issue, she did not pursue a quashing of the London Borough of Hillingdon's age determination. I need only say that I would not, on the basis of the arguments before me, have been prepared to grant permission on ground nine, in any event.
I will hear the parties further on the terms of the order which needs to be made.