Case No: C2/2014/2661; C2/2014/2661(C)

Neutral Citation Number: [2016] EWCA Civ 1113
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 11 October 2016
Before:

LADY JUSTICE BLACK

LORD JUSTICE BEAN

LORD JUSTICE BURNETT

	THE QUEEN ON THE APPLICATION OF
BF (ERITREA)
(By his Litigation Friend, Francesco Jeff)
	
Appellant	
	and 		
	
SECRETARY OF STATE FOR THE HOME DEPARTMENT

  Respondent	
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Mr Chris Buttler (instructed by Scott Moncrieff & Associates Solicitors) appeared on behalf of the Appellant
Ms Catherine Rowlands (instructed by the Government Legal Department) appeared on behalf of the Respondent
Mr Martin Chamberlain (instructed by the Equality and Human Rights Commission) appeared on behalf of the Intervener 
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Judgment (Approved)
LORD JUSTICE BURNETT:
1.	This is an appeal against the order of Upper Tribunal Judge Lane dated 6 August 2014 by which he refused the appellant permission to apply for judicial review.  At that hearing the claim was advanced on the basis that the Secretary of State’s policy found in chapter 55 of the Enforcement Instructions and Guidance, which enables immigration officers to make initial assessments of a person’s age on the basis of their appearance and demeanour, is unlawful.  Permission to appeal against that order was granted by Dame Janet Smith on 7 May 2015.  

2.	There is a quirk in the rules which governs such applications for permission to appeal which has resulted in a different approach being applied depending upon whether the underlying refusal to grant permission to apply for judicial review was made in the High Court or in the Upper Tribunal.  When the refusal is made at an oral hearing by a judge sitting in the High Court, it is possible for the single judge of the Court of Appeal when considering the application for permission simply to grant permission to apply for judicial review and remit it to the High Court for hearing.  No such power is available when the proceedings come from the Upper Tribunal.  It was for that reason that Dame Janet simply gave permission to appeal.  These differences were discussed in the judgment of the Master of the Rolls in NB (Algeria) v Secretary of State for the Home Department [2012] EWCA Civ 1050.  

3.	It is in those circumstances that the appeal before us is concerned with the question whether Upper Tribunal Judge Lane was wrong in all the circumstances to refuse permission to apply for judicial review.  In the event that we were to conclude that he should have granted permission to apply for judicial review, by then virtue of section 16(8) of the Tribunals, Courts and Enforcement Act 2007 we would have power to decide the judicial review claim ourselves (again, see the discussion in NB at paragraphs 13 and then 23 to 25).  In this case there would be a fundamental difficulty in our doing so.  The respondent Secretary of State, given the stage reached in the proceedings below, has not filed any evidence.  It would be necessary for the Secretary of State to do so to deal with the claim and in particular respond to the detailed evidence that has been filed in support.  For that reason the parties have proceeded on the basis that if the appeal succeeds we should grant permission to apply for judicial review and remit the case for hearing to the Upper Tribunal.  

4.	For reasons which I will elaborate in relatively short order, my conclusion is that the claim which the appellant wishes to advance in judicial review proceedings is indeed arguable and has prospects of success.  The arguments advanced by Mr Buttler on the appellant’s behalf, supported and amplified by Mr Chamberlain QC intervening on behalf of the Equality and Human Rights Commission, may or may not find favour in due course when fully argued out in the face of such evidence as is then before the court.  Ms Rowlands on behalf of the Home Secretary has advanced serous arguments in response both in writing and orally this morning, but I am unable at this stage to say that they will necessarily prevail.  

5.	The appellant is an Eritrean national who arrived in the United Kingdom from Calais on 11 March 2014.  He said to immigration officials that he had been born on 15 February 1998.  If that were true, he would have been a child.  The immigration officer concerned at that time approached her initial assessment of the appellant’s age by applying chapter 55.9.3.1 of the enforcement instructions to which I have referred.  The effect of that guidance is that the Home Office will accept at face value that somebody is under 18 if he asserts that to be the case unless one of four circumstances is established.  They are:

“A. There is credible and clear documentary evidence that they are 18 or over.

B. A Merton compliant age assessment by a local authority is available stating that they are 18years of age or over.

C. Their physical appearance / demeanour very strongly suggests that they are significantly over 18 year of age and no other credible evidence exists to the contrary.

D. The individual:
•	prior to detention, gave a date of birth that would make them an adult and/or stated they were an adult; and
•	only claimed to be a child after a decision had been taken on their asylum claim; and
•	only claimed to be a child after they had been detained; and
•	has not provided credible and clear documentary evidence proving their claimed age; and
•	does not have a Merton compliant age assessment stating they are a child; and
•	does not have an unchallenged court finding indicating that they are a child; and
•	physical appearance / demeanour very strongly suggests that they are 18 years of age or over.”

6.	The reference to Merton and Merton-compliant is a reference to the case of R on the application of B v London Borough of Merton [2003] EWHC 1689 (Admin) and the series of cases which have followed and clarified it.  The challenge in these proceedings relates to point C in the quotation.

7.	The immigration officer who dealt with the appellant when he arrived in the United Kingdom considered that his appearance and demeanour very strongly suggested that he was significantly over 18 years of age.  There was no other credible evidence which existed to the contrary, it was said.  The immigration officer explained why she thought that the appellant was much older, indeed in his mid-twenties.  The policy also incorporates a safeguard, namely that the conclusion reached by one immigration officer must be vouchsafed by a second who independently must arrive at the same conclusion.  As it happens, not long after that conclusion had been reached, information was received that the appellant had been fingerprinted in Italy on his way from Eritrea to the United Kingdom.  The Italian authorities suggested that the appellant had given his date of birth as being in 1988.  If that were correct, it would in fact have confirmed the immigration officer’s assessment.  However, the appellant suggests that that is an error.  

8.	To complete the factual story, I note that three formal age assessments were undertaken later on behalf of the relevant local authority, namely Newport City Council.  The first two came to the conclusion that the appellant was indeed over 18.  He issued judicial review proceedings against the local authority.  A third age assessment was undertaken which reached the contrary conclusion.  In those circumstances Newport accepted his claimed date of birth and compromised those judicial review proceedings.  

9.	The litigation history in this case is complicated but happily it is unnecessary to set it out in any detail.  By the time the matter came for oral hearing before Upper Tribunal Judge Lane, the issue which the appellant wished to argue was that the policy found in subcategory C is unlawful.  Shorn of the eloquent legal argument which supports that contention, in essence, it is said that any policy which is founded substantially on a conclusion as to age based upon how someone presents himself gives rise to an unacceptable risk that an error in age will be made.  Such an error, it is submitted, will have serious consequences.  The first serious consequence is that the person concerned is vulnerable to being detained as an adult.  The Home Secretary’s policy is to detain children only in very exceptional circumstances.  That policy has been reinforced by amendments made by Parliament to the Immigration Act 1971 found in paragraph 16(2)(a) and 18(b) of schedule 2, which came into effect in July 2014.  This appellant was detained in March 2014 until sometime in September that year and then again for a few months in 2015.  Furthermore, a child’s asylum application is processed differently from that of an adult.  Importantly, for practical purposes, it is the policy of the Home Office not to return an unaccompanied child asylum seeker to another European country pursuant to the Dublin II Regulations.   The account given by the appellant of his travels from Eritrea to the United Kingdom involves his making a perilous journey across the Mediterranean from Libya to Italy.  There is no doubt that he was in transit through Italy because he was detained there, fingerprinted, and the Italian authorities have records of those matters.  

10.	The challenge to the policy was advanced by way of amendment to the original claim form.  The judge in refusing permission also refused the application for permission to amend on the basis that the whole claim the appellant sought to advance was unarguable.  It is right to observe that the arguments developed in writing and orally before us are fuller than those which were developed before the judge.  In particular, paragraph 16(2)(a) and 18(b) of schedule 2 to the Immigration Act 1971 do not appear to have been referred to before the judge.  Neither were the arguments developed by Mr Chamberlain by reference to the European Convention on Human Rights, EU law and international law.  

11.	In summary, Mr Buttler submits that the impugned aspect of the policy will be unlawful if (a) it permits a child to be detained, (b) it gives rise to an unacceptable risk of children being detained, and/or (c) it is not a rational means of giving effect to the statutory objective and policy of ensuring that children are not detained.  In support of those submissions he relies upon a series of well-known authorities which he sets out in some detail in his skeleton argument.  He also draws attention to the series of authorities following Merton in support of the proposition that reliance upon a visual assessment of age coupled with demeanour without more is likely to be flawed.  He asks the rhetorical question: if trained social workers cannot lawfully rely upon the appearance and demeanour with nothing more to assess the age of somebody, how can it be that an immigration official may do so?  He points to evidence from the Royal College of Paediatric and Child Health, the Children’s Commissioner, the Refugee Council and Coram Children’s Legal Centre, all of which are said to call into question this policy.  Additionally, the appellant relies upon material from the UNHCR and the European Asylum Support Office. 

12.	Finally, he relies upon the recent decision of Sir Stephen Silber sitting as a High Court judge in R (AA) v Secretary of State for the Home Department [2016] EWHC 1453 (Admin).  Sir Stephen concluded that for the purposes of the provisions introduced into the schedule in the Immigration Act 2014, to which I have referred, the question whether someone is a child is one of precedent fact.  Mr Buttler points out that the Secretary of State in resisting that conclusion put forward arguments to the effect that the result would be that the Home Office would be exposed to claims of false imprisonment in circumstances where immigration officers had acted reasonably in and good faith in reaching a conclusion that someone was an adult which turned out to be wrong.  Sir Stephen himself gave permission for the Secretary of State to appeal.  The appeal awaits hearing in this court.  

13.	Mr Chamberlain submits that, properly understood, Article 5 of the European Convention on Human Rights, recent jurisprudence of the Strasbourg Court together with the provisions of the European Charter and Asylum Procedures Directive all lend support to the argument that the policy is unlawful.  So too, he submits, does the UN Convention on the Rights of the Child.  

14.	In resisting the submissions advanced by the appellant and intervener, Ms Rowlands for the Secretary of State places significant reliance upon the judgment of Lord Toulson giving the only judgment in the Supreme Court in AA v Secretary of State for the Home Department [2013] UKSC 49.  That case considered this very aspect of the enforcement instructions and guidance in the context of whether the policy complied with the Secretary of State’s duties under section 55 of the Borders, Citizenship and Immigration Act 2009.  Ms Rowlands accepts that the arguments sought to be advanced by the appellant and by the intervener were not expressly before the Supreme Court.  She draws our attention in particular to the conclusions in paragraphs 48 and 49 of the judgment of Lord Toulson.  Her submission is that that case “in substance” decides the issues in this proposed claim for judicial review.  Mr Chamberlain in his written submissions points out expressly that the international instruments to which he refers were not considered by the Supreme Court.  Ms Rowlands submits that the appellant, the intervener and those who have provided evidence in support of the claim have failed to recognise that the terms of the policy which require that physical appearance and demeanour strongly suggest that the person concerned is significantly over 18 means that the risk of error being made is low.  She describes the policy as entailing a triple lock within a triple lock.  She points to the second aspect of subparagraph C, namely that there should be “no credible evidence that he is not over 18”.  She reminds us that a conclusion reached under paragraph C must be validated by a second immigration officer.  She prays in aid the practicalities of a policy that requires immigration officers to make decisions urgently and in circumstances very different from the more leisurely approach of a Merton-compliant age assessment.  

15.	Ms Rowlands also submits that the provisional decision made by an immigration officer at the stage when a person first presents himself is subject to revision.  The policy itself makes that clear if an age assessment become available or indeed any other evidence that might call into question the original assessment.  She submits that given that the decision made at that stage is necessary to determine immediately what to do with a person in the position of the appellant, should it turn out to be a wrong decision the consequences are likely at least to be very short term.  For all those reasons, she submits that the prospect of the appellant demonstrating that this policy is unlawful is vanishingly small.  She submits that the intervener’s case adds nothing to the argument and (I paraphrase, I hope not disrespectfully) seeks to draw from the international materials’ support which on analysis is absent.  

16.	As I have already foreshadowed, my conclusion is that the arguments advanced on behalf of the appellant and the intervener cannot be dismissed at this stage as unarguable or obviously without some merit.  It may well be that in the face of full argument and detailed evidence form the Secretary of State that the arguments will fail, but that cannot be said that this stage, in my judgment.  In those circumstances I would allow the appeal and grant permission to the appellant to apply for judicial review.  It is common ground that we are not in a position to determine that judicial review claim because of the paucity of material before us.  In the result the matter must be remitted to the Upper Tribunal for hearing.

17.	The question arises whether we should give directions.  In my view the appellant must have permission to amend the underlying claim form to advance the challenge to the policy in the way in which it has evolved even since the hearing before the Upper Tribunal judge.  That no doubt will include sweeping in the points advanced by the intervener.  The Home Office must respond with detailed grounds of resistance and such evidence as it wishes to deploy.  If my Lady and my Lord agree, we might hear brief submissions on directions generally and the timetable for the procedural steps that are needed, but, subject to that, the matter on remission to the Upper Tribunal will no doubt be considered with a view to further directions including the extent to which the intervener may take a part in the judicial review proceedings.  

Lord Justice Bean:
18.	I agree.  

Lady Justice Black:
19.	I also agree.

Order: Appeal allowed