Interim relief in age assessment cases

The Upper Tribunal recently considered the correct approach to interim relief in age assessment cases. Joshua Swirsky analyses the ruling.

The judgment in R(ARIA) v LB Hounslow is a reminder that saying ‘each case depends on its own facts’ and ‘interim relief is not automatic in age assessment cases’ are not just mantras.

The court or tribunal will give serious attention to the facts of each case.

Background to the judicial review

The applicant, ARIA is from Sudan and claims to be 16 or 17 although he does not know his date of birth.

The local authority had conducted a brief assessment that found that he was substantially over the age of 18 based on physical appearance and demeanour. (This was consistent with the initial assessment conducted by the Home Office at the port).

Following the age assessment ARIA and another young Sudanese man, SAH, who had been similarly assessed, were dispersed to NASS (National Asylum Support Service) accommodation in Aberdeenshire.

The local authority in Scotland carried out brief age assessments of the men and concluded that both were substantially older than 18.

Application for judicial review proceedings

ARIA and SAH sought judicial review and obtained permission. SAH obtained interim relief on the papers while ARIA did not.

ARIA’s application was then considered by the Upper Tribunal and refused. The fact that he was with a friend, SAH, was a factor considered by the Upper Tribunal.

ARIA then renewed his application.

Legal authorities and balance of convenience test

Upper Tribunal Judge Smith considered the numerous authorities that are often cited in such cases; particularly R(BG) v Oxfordshire County Council [2014] EWHC 3187 (Admin) and R (KRA) v Cheshire East Council [2024] EWHC 575 (Admin).

She held that the ‘protective precautionary approach’ in age assessment cases described by Mr Fordham QC (as he then was) in R(BG) v Oxfordshire County Council was really just another way of stating the balance of convenience test.

The local authority conceded that there was a serious issue to be tried because permission for a judicial review had been granted.

The balance of convenience was then between:

• the harm done to the local authority which would have to spend significant resources on accommodating a young man who had been assessed 3 times as being an adult

versus

• the potential harm to ARIA.

The judge took into account the fact that ARIA had lived in Scotland for several months without any evidence of harm. He had food and shelter and was able to access some other services.

Significantly, although SAH had been moved back to London:

• ARIA had made other friends and these friendships would be lost if he were to leave Aberdeenshire
• ARIA had not himself filed any evidence since his application was initially refused
• no medical evidence was filed on ARIA’s behalf.

In these circumstances interim relief was refused.

Joshua Swirsky is a barrister at Field Court. He appeared for the successful local authority.