Osbornes successful in Court of Appeal challenge

19 Feb 2019

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Edward Taylor has successfully appealed a High Court Judge’s decision, refusing  permission to apply for Judicial Review on a “Totally Without Merit” basis. The Court of Appeal Judge ordered that permission should be granted and the case has been returned to the Administrative Court (Queen’s Bench Division) for directions.

By way of background summary, B is an unaccompanied asylum seeker from Eritrea, who claims to be a child. Upon arriving in the UK, the Home Office considered that B was an adult and placed him in NASS accommodation, as opposed to referring him to a local authority Children’s Services team for accommodation and support under the Children Act 1989, at least pending a full age assessment.

B was accommodated by NASS in Derby City Council when he sought assistance in relation to his age dispute from the Refugee Council. The Refugee Council believed B to be a child of his claimed age, and therefore made a referral to Derby Children’s Services, on the basis that B is a child in need in their area. Derby social workers visited B and concluded that he is “clearly an adult” such that no Merton compliant age assessment is required.

The Refugee Council referred B to Edward for advice and assistance. Edward took instructions and sent a Letter Before Claim to challenge Derby’s decision and asked them to

  • carry out a Merton compliant age assessment; and
  • accommodate and support B in the interim.

Derby, however, refused to take this action, and maintained the lawfulness of their summary assessment.

Edward issued a claim for Judicial Review of Derby’s decision at the Administrative Court. Edward also sought an interim order requiring Derby to accommodate and support B as a child under the Children Act 1989 pending the outcome of the claim or further order. A Judge declined granting interim relief, pending a decision being made on permission. Derby subsequently filed its grounds of defence and also witness statement evidence in which they relied upon photographs of B obtained via social media.

The matter came back before a Judge who refused permission to apply for Judicial Review on a “Totally Without Merit” basis. When an order is made on this basis, it is not possible to seek a reconsideration of the permission decision at an oral hearing. The only way to challenge the decision is by appeal to the Court of Appeal, and such an appeal must be brought within 7 days.

Edward lodged an appeal at the Court of Appeal. After several months of waiting a Court of Appeal Judge considered the matter and ordered that permission should be granted and the case returned to the Administrative Court for directions. The appeal Judge was satisfied that the application meets the “relatively low threshold” of being arguable. The case continues at the Administrative Court.

Edward instructed Counsel, Antonia Benfield, of Doughty Street Chambers.

To speak with Edward Taylor or another member of our housing law team contact us by calling on 0207 485 8811 or fill in an online enquiry form. 

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