The High Court has ruled that Kent County Council must support and accommodate Sudanese refugee LYB as though he is a child until a full hearing can resolve his age.
In LYB, R (On the Application Of) v Kent County Council  EWHC 663 Roger Ter Haar QC, sitting as a deputy High Court judge, said the material before him showed a case that could succeed in a contested factual hearing.
LYB, by his litigation friend, sought permission to challenge an age assessment by Kent.
He claimed to be aged 16 though the council said he was 20 and so not eligible to be supported under Section 20(1) of the Children Act 1989,
Murray J had rejected LYB’s application on papers in January on the grounds that Kent’s age assessment was carried out correctly.
LYB is originally from the Niala region of Sudan and was told by family members that he was born on 20 November 2004 though never had documentary evidence of this.
Following his parents' separation and his father’s death, an attack on his village saw him join an uncle with whom he traveled to Libya. He later went to Malta and via Germany to the UK where he claimed asylum in August 2020.
LYB relied on four grounds: that Kent’s decision is based on an age assessment that was not 'Merton' compliant or compliant with guidance; was irrational or otherwise unlawful; the age assessors failed to apply the benefit of the doubt in making their decision; the termination of accommodation and support was unlawful.
Mr Ter Haar said: “It seems to me that the process adopted probably was Merton compliant. In those circumstances, applying conventional or traditional judicial review principles, challenging the age assessment made by Kent CC in respect of LYB might be difficult.
“However, applying the FZ v Croydon London Borough Council approach, it seems to me that I should grant permission…I must ask myself is whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. Unless that question is answered affirmatively, permission should be granted.”
He was satisfied there was a case that could succeed in a contested factual hearing because while LYB has given inconsistent accounts, he had more than once said his date of birth was 20 November 2004 and his foster carers' impressions of his age supported his case.
Assessors had also noticed that LYB’s appearance suggested he might still be in his teens.
In a contested hearing, a court or tribunal would be able to assess the extent to which the trauma he appeared to have suffered affected his recollection of events, Mr Ter Haar said.