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High Court judge refuses asylum-seeker permission for age assessment challenge

An Iranian-born asylum seeker (GB) cannot challenge his age assessment by Leeds City Council, the High Court has decided.

Mr Justice Fordham said in GB, R (On the Application Of) v Leeds City Council [2022] EWHC 465 (Admin) that there was no factual case “taken at its highest which could properly succeed at a contested factual hearing”.

GB sought judicial review and interim relief requiring Leeds to treat him as a child.

The council argued this should be refused on grounds of delay and because the claim lacked viability viewed against the applicable permission stage test.

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GB is an Iranian national whose case was referred to Leeds after he arrived in the UK hidden in a lorry in April 2021.

He was put in adult accommodation and later ‘dispersed’ to Middlesbrough on 29 October 2021.

Fordham J said even on GB’s case he would be aged 17 years and eight months but “that the claimant would be on the verge of 18, even on his own case, is not a factor in my judgment which should influence in any way the court's approach today”.

Social workers assessed him as being 20 but he said he was born on 8 July 2004.

The judge said he would not shut out the case on grounds of delay.

The council had submitted that the "decision" in this case was "primarily" taken in May 2021 and that the claimant was out of time, with no good reason for an extension of time, in having commenced judicial review only on 2 September 2021.

Mr Justice Fordham said he was not convinced that it sufficed for counsel for GB to describe the local authority's "duties" to a child as "ongoing".

“Age assessment is a public law decision-making context in which concrete decisions are arrived at and communicated,” he said.

“The court, in my judgment, ought not to encourage the idea that claimants and their representatives can delay judicial review and then point to a 'continuing duty' as a basis for concluding that there has been no delay.”

The judge said however that in all the circumstances – and having regard to the important interests of a putative child, and the importance of the legal duties that arise – his conclusion was: (a) the proceedings were commenced "promptly"; and (b) in any event, were it necessary to do so, he would have granted an extension of time on the basis of "good reason".

"I am quite satisfied that the outcome in this Court of this case should turn, not on a procedural question of timing, but rather on the substantive question of whether or not the claim has viability," the judge said.

In this respect Fordham J concluded that the case was not viable. He said he was "quite satisfied – by reference to the other points in the case and the necessary evaluative exercise that the social workers have undertaken together with the considerable weight which that assessment would undoubtedly bear in such a substantive hearing – that, even put in this way, the material before the Court does not raise a factual case taken at its highest which could properly succeed at a contested factual hearing.

"The line of reasoning which I have identified would not, in my judgment, lead at a substantive hearing to a favourable outcome when viewed alongside the other features of the case and the other reasoning of the experienced social workers undertaking their legally-compliant appraisal. That is not a prediction of what is likely (or not likely); it is an application of what is possible (or not possible). I am satisfied that this case "could not properly succeed" at a contested factual hearing."

Mark Smulian

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