AK, R (on the application of) v Secretary of State for the Home Department & Anor

Factual and Procedural Background

The Plaintiff, an individual claiming Afghan nationality born on 12 July 1993 and thus over 18 years old at the time of proceedings, renewed an application for permission to apply for judicial review concerning two decisions: (a) Leicester City Council's age reassessment completed on 20 December 2010, which concluded the Plaintiff was over 18, and (b) the Secretary of State's decision to detain the Plaintiff between 25 August and 4 September 2010 pending intended removal to Greece.

The Plaintiff contended that he was a minor at the time of detention, rendering the detention contrary to the Secretary of State's policy against detaining children except in exceptional circumstances. The Secretary of State's decision relied on an earlier age assessment by Essex County Council social workers upon the Plaintiff’s arrival in the UK in January 2009, which also assessed him as over 18. No challenge was made to that initial assessment or detention at the time.

The Plaintiff arrived unaccompanied in the UK on 30 January 2009, claiming to be 15 years old. Essex social workers assessed him as over 18, assigning a notional birth date of 1 January 1991. He was detained briefly, then released and granted temporary admission. Subsequent developments included asylum claim refusals, removal directions to Greece, and further detentions. In August 2010, a General Practitioner provided a letter describing the Plaintiff’s severe mental health issues, including PTSD and depression, which became relevant to the challenge of his detention.

The Plaintiff’s solicitors issued a pre-action protocol letter in August 2010 requesting cancellation of removal directions based on the pending age assessment by Oxfordshire County Council. Interim relief was granted preventing removal until age was agreed or assessed. Leicester City Council conducted a further age assessment in November-December 2010, concluding the Plaintiff was over 18, consistent with prior assessments. The Plaintiff then amended his claim to challenge this assessment, relying on a paediatrician’s report suggesting a younger age, but Leicester City Council refused a reassessment.

An independent social worker also assessed the Plaintiff’s age as likely 17 to 18 years, supporting the social workers’ conclusions. The Plaintiff challenged the Essex assessment’s compliance with legal standards late in the proceedings. The Plaintiff also challenged the Secretary of State’s detention decision on grounds including mental health policy adherence.

Legal Issues Presented

1. Whether the Plaintiff was under 18 at the time of detention in August 2010, making the detention unlawful under the Secretary of State’s policy on detaining minors.
2. Whether the age assessments conducted by Essex County Council and Leicester City Council complied with the principles established in R (B) v Merton London Borough Council and related case law.
3. Whether the Secretary of State acted unlawfully or unreasonably in detaining the Plaintiff given his mental health condition and the applicable detention policy.
4. Whether the absence of an "appropriate adult" during the Leicester age assessment constituted grounds for judicial review.
5. Whether the Plaintiff’s claim for judicial review against Leicester City Council should be permitted, including the implications of his age for eligibility for leaving care support under the Children Act 1989.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff argued he was a minor at the time of detention, making the detention contrary to the Secretary of State’s published policy.
• He challenged the age assessments, particularly relying on a paediatrician’s report that assessed him as younger than 18 and contended that Leicester City Council should conduct a fresh age assessment.
• The Plaintiff contended the Essex assessment was not Merton compliant and should not have been relied upon.
• He argued that the detention policy applicable at the time prohibited detaining individuals with serious mental illness, asserting he was mentally ill at detention.
• The Plaintiff criticized the absence of an "appropriate adult" during the Leicester age assessment interviews.
• He claimed a continuing purpose for judicial review of the age assessment related to eligibility for support under the Children Act 1989 as a "former relevant child".

Respondent's Arguments

• The Secretary of State and Leicester City Council contended that the age assessments by Essex and Leicester social workers were Merton compliant and reliable.
• They argued the Plaintiff was over 18 at the time of detention and that the detention decision was reasonable and lawful.
• The Secretary of State disputed the timing and applicability of any amendments to the detention policy and challenged the validity of the mental illness diagnosis by the General Practitioner.
• They rejected the contention that Dr Khan’s letter constituted independent evidence of torture, noting it was based solely on the Plaintiff’s reports.
• Leicester City Council refused to carry out a fresh age assessment following the paediatrician’s report.
• They argued the absence of an "appropriate adult" was not a mandatory requirement under the Merton guidelines and did not render the assessment unfair.
• They contended the Plaintiff was not accommodated under the Children Act 1989 and thus not eligible for leaving care support.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the age assessments conducted by Essex and Leicester social workers, finding both assessments to be Merton compliant and methodically reasoned. The court emphasized that the quality of initial decision-making reduces the likelihood of a different conclusion on appeal or judicial review. The Plaintiff's reliance on a paediatrician’s report was rejected due to methodological flaws previously identified by judicial authority and inconsistency with other evidence, including the Plaintiff's own account.

The independent social worker’s assessment was consistent with the social workers’ conclusions, further supporting the finding that the Plaintiff was over 18 at the time of detention. The court found no real prospect that a full hearing would conclude otherwise.

Regarding procedural fairness, the absence of an "appropriate adult" during the Leicester assessment was deemed not to constitute a ground for judicial review, as it is not a mandatory Merton requirement and the Plaintiff had opportunities to be accompanied but declined.

The court addressed the Plaintiff’s mental health challenge to detention, acknowledging credible evidence of serious mental illness (PTSD and depression) diagnosed by a qualified General Practitioner and supported by psychiatric opinion. The court found a sufficiently arguable case that the Secretary of State’s detention policy may have been breached in this regard, crossing the threshold for permission to proceed on this ground.

The court rejected the Plaintiff’s argument that Dr Khan’s letter constituted independent evidence of torture, noting it was based solely on the Plaintiff’s own reports. The court also rejected the Plaintiff’s claim that he qualified as a "former relevant child" under the Children Act 1989, as he was not accommodated by the local authority under the Children Act.

Overall, the court balanced the evidence, legal standards, and procedural fairness, concluding that permission for judicial review should be granted only concerning the mental health ground of detention, and refused on all other grounds, including age assessment and challenges to Leicester City Council.

Holding and Implications

The court’s final decision was to GRANT PERMISSION for judicial review solely on the ground that the Secretary of State’s detention of the Plaintiff in August 2010 may have contravened the stated policy regarding detention of persons with mental illness.

Permission to seek judicial review on all other grounds, including challenges to the Plaintiff’s age assessment and the decision of Leicester City Council, was REFUSED. The court also refused permission to bring a claim against Leicester City Council.

The direct consequence is that the Plaintiff may proceed with judicial review only on the limited ground concerning mental health and detention policy adherence. No broader legal precedent was established, and the substantial challenge based on age was dismissed as lacking real prospect of success.

Costs were awarded against the Plaintiff with respect to Leicester City Council’s Acknowledgment of Service and Summary Grounds of Resistance, summarily assessed at £1,852.50. Costs as between the Plaintiff and the Secretary of State were reserved for the substantive hearing, with an indication that a significant proportion of costs would likely be awarded to the Secretary of State.