Updates, commentary, training and advice on immigration and asylum law
High Court reminder in age assessment challenge of the importance of providing papers on time
The case of R (Karimi) v Sheffield City Council  EWHC 93 (Admin) is a reminder of the importance of filing skeleton arguments in a timely manner with the court. Mr Justice Fordham KC was considering the issue of permission in an age assessment judicial review against a local authority which had been refused on the papers. The decision also provides some useful nuggets in age assessment cases of the over-reliance on physical characteristics, the use of the ‘minded-to’ process and the effect of a child turning 18 years old during an age assessment claim.
The case is a remarkably succinct 14 paragraphs out of which four related to the issue of documents judicial pre-reading.
Late provision of skeleton argument
The claimant’s solicitors had filed a skeleton argument in time and the local authority in response had filed summary grounds for resistance. When the judge’s clerk had emailed parties the week prior to the hearing, the judge was told by the local authority’s counsel that the documents were ‘complete’.
However, the second day before the hearing, the local authority produced a skeleton argument. By this point the judge had already spent time reading into the case. Clearly miffed, the High Court said:
It is a common misconception that Judges pre-read cases the day before the hearing, or perhaps the evening before the hearing. The true position is that we frequently have to pre-read cases ahead of that. We also have to decide which cases to pre-read, when and in what order. We want to be able to prepare a case by pre-reading, in one sitting, with confidence that we have everything we need, including any skeleton arguments or other materials that are designed to assist us. It is therefore a vice to supply materials late in the day. It is a vice to do so unheralded, with no prior warning. I repeat, that is by way of judicial sharing, in the context of a commonly encountered problem, of information about why all of this matters.
In the end the local authority’s counsel was allowed to use the skeleton argument as a ‘speaking note’ (which is also not ideal because it risks losing the judge’s interest if submissions are simply read out!).
The upshot is therefore to tell the court in advance if you intend to produce further reading to avoid the judge reading-in before that is produced. If you think you might have to produce something late, again, keep the court updated as to why that is the case.
The age assessment challenge
There are three other useful nuggets arising from this case including the over-reliance by the local authority of the claimant’s physical characteristics (stubble and the fact that he was 6ft tall). The court reiterated the well-established principles in R (B) v Merton  EWHC 1689 (Admin) that in the absence of reliable documentary evidence, an age assessment depends on the history given, the physical appearance and the behaviour of the claimant. However, the local authority’s reasoning was framed in a way which focused primarily on the physical appearance instead of making a holistic assessment of all three factors.
The second useful nugget arises out of the “minded-to” process. This is normally the stage in which the claimant is told that a final decision has not yet been made but there are concerns that the claimant is not a child. That process allows a final opportunity for a claimant to respond after which a decision is made.
Although the local authority argued that a minded-to session had already taken place, the meeting notes provided show that at the session, the local authority had already come to the conclusion that the claimant was not a child and simply shared that decision with him. It appeared to omit the whole minded-to process altogether.
The final useful nugget arose from the fact that the claimant, on his own account, had turned 18. However, the court referred to previous authority to confirm that this does not make the claim academic. Local authorities have duties to keep in touch with former children to ensure they are adequately supported but of course those provisions would never apply if the claimant was not a child in the first place.
The point of those provisions is to ensure that a child eligible for support from the local authority is not simply left without support the moment they reach their 18th birthday but will instead receive the same support and guidance a child would normally expect from their own families as and when they become adults. That meant that the claim could not be academic because it would still make a difference in terms of the support the claimant might be able to receive.
At this stage, the court simply indicated it would grant permission and remit the matter to the Upper Tribunal for full argument in due course.
Producing written submissions at the last minute before going into court risks looking as though a haphazard approach is being taken. Keeping the court on your side will give you the best possible outcome in persuading the court of your argument.