Tribunal decisions

The decision

Case No: JR-2026-LON-000107
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

2 June 2026

Before:

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

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Between:

THE KING
on the application of

XVR
(anonymity order made)
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

MANCHESTER CITY COUNCIL
Interested Party

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Mr Vijay Jagadesham
(instructed by Greater Manchester Immigration Aid Unit), for the applicant

Mr Jay Gajjar
(instructed by the Government Legal Department) for the respondent

Hearing date: 20 May 2026

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J U D G M E N T

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Judge Norton-Taylor:

Introduction
1. This judgment relates to a preliminary issue arising in these proceedings. That issue concerns two principal questions. The first is narrow in its scope: does the applicant’s challenge require the Upper Tribunal (“the Tribunal”) to determine his date of birth and age as a precedent fact through the mechanism of a fact-finding hearing? The second has wider application: does the Tribunal have the power under section 25 of the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”) to vary an order granting permission to apply for judicial review made by a judge sitting in the Administrative Court prior to proceedings being transferred to the Tribunal under section 31A(3) of the Senior Courts Act 1981 (“SCA 1981”)?

2. I express my gratitude to Counsel for the skill with which they have put their respective arguments forward. Their submissions have been clear and concise, which in turn has greatly assisted me in identifying and addressing the relevant issues.

Background
3. The applicant is a citizen of Sudan who arrived in the United Kingdom on 14 November 2022 with his brother. His claimed date of birth is 2 January 2006, which made him 16 years old on arrival and now 20 years old. He claimed asylum and was granted permission to stay as a refugee on 2 March 2026.

4. Following an age assessment conducted by the National Age Assessment Board1 and pursuant to section 51 of the Nationality and Borders Act 2022, by a decision dated 18 April 2024 it was concluded that the applicant’s date of birth was 1 January 1997, making him 23 years old on arrival and now 29 years old.

5. On 20 March 2025, the applicant made a request for the respondent to reassess his age and date of birth, based on new evidence (including an expert report and other supporting materials) and in light of the mechanism under section 56 of the 2022 Act. That request was refused by a decision dated 23 April 2025.

6. This application for judicial review was lodged in the Administrative Court on 3 September 2025 (the application was out of time, but this was resolved in the applicant’s favour). Permission was refused on the papers, but then granted on renewal by Deputy High Court Judge Karen Ridge (“Judge Ridge”). Her order, sealed on 31 December 2025, provides as follows:

“IT IS ORDERED THAT:
1. Permission to apply for Judicial Review is granted on all grounds.

2. The order of Andrew Kinnier KC as to costs made on 15 October 2025 be set aside.

3. Pursuant to section 31A(3) of the Senior Courts Act 1981, as inserted by section 19 of the Tribunals, Courts and Enforcement Act 2007, these proceedings are transferred to the Upper Tribunal (Immigration and Asylum Chamber) for the Claimant’s age to be determined.

4. Costs in the case.”

7. Following transfer, the Tribunal case managed proceedings and a case management hearing was listed for 20 May 2026. On 23 March 2026, the respondent contacted the applicant, putting him on notice of the intention to make an application to vary the order of Judge Ridge. Further communications ensued and, on 29 April 2026, the application to vary the order was made. It also included an application for the Tribunal’s age assessment case management directions to be discharged. The application was accompanied by written submissions drafted by Mr Gajjar, who did not appear in the High Court.

8. On 8 May 2026, the applicant provided written submissions opposing the respondent’s application. A short reply came in from the respondent on 14 May. On 18 May, Mr Jagadesham provided additional written submissions on behalf of the applicant.

9. I received concise and helpful submissions at the hearing, following which I reserved judgment.

The parties’ arguments
10. My analysis of the issues will subsume the parties’ submissions and there is no need for me to set them out in detail at this stage. What follows is a summary of what has been put forward.

11. Mr Gajjar submitted that the applicant’s challenge was only to the respondent’s refusal to reassess his age and date of birth and not to the original age assessment decision of 18 April 2024. Thus, this was not a precedent fact case and there was no need for a fact-finding hearing. Judge Ridge’s order was erroneous insofar that it referred to the need for the applicant’s age to be determined. The order should be varied in order to reflect this.

12. The mechanism for varying the order was section 25 TCEA 2007. The power under section 25 could appropriately be used to ensure that the Tribunal was not ‘lead down the wrong path’, as it were. Mr Gajjar cited a number of authorities which, whilst not directly on point, in his submission suggested that section 25 did cover the scenario with which the application to vary is concerned.

13. Mr Jagadesham submitted that it was now too late in the day for the respondent to seek a variation of Judge Ridge’s order. The order had been drafted by the parties before being “approved” by the judge and there had been no dispute as to the nature of the proceedings following transfer until April 2026. The applicant would be prejudiced by a variation. Beyond that, Mr Jagadesham submitted that section 25 TCEA 2007 did not give the Tribunal the power to vary an order made by the judge in the Administrative Court. The authorities relied on by the respondent were distinguishable. Alternatively, even if the power existed, it should not be exercised in this particular case.

14. In reply, Mr Gajjar submitted that there was nothing to indicate that the powers under section 25 TCEA 2007 could not cover the present scenario. He submitted that the venue in which the order was made (i.e. the Administrative Court) was not material and that the order related to a single set of proceedings. He emphasised the importance of correcting the misapprehension contained in [3] of Judge Ridge’s order and the importance of ensuring that the Tribunal carried out its proper task in determining the applicant’s case.

Relevant legal framework
15. Section 25 TCEA 2007 provides as follows:

25 Supplementary powers of Upper Tribunal
(1) In relation to the matters mentioned in subsection (2), the Upper Tribunal–
(a) has, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority as the High Court, and
(b) has, in Scotland, the same powers, rights, privileges and authority as the Court of Session.

(2) The matters are–
(a) the attendance and examination of witnesses,
(b) the production and inspection of documents, and
(c) all other matters incidental to the Upper Tribunal's functions.

(3) Subsection (1) shall not be taken–
(a) to limit any power to make Tribunal Procedure Rules;
(b) to be limited by anything in Tribunal Procedure Rules other than an express limitation.

(4) A power, right, privilege or authority conferred in a territory by subsection (1) is available for purposes of proceedings in the Upper Tribunal that take place outside that territory (as well as for purposes of proceedings in the tribunal that take place within that territory).

16. Section 31A SCA 1981 provides as follows:

31A Transfer of judicial review applications to Upper Tribunal
(1) This section applies where an application is made to the High Court -
(a) for judicial review, or
(b) for permission to apply for judicial review.

(2) If Conditions 1, 2 and 3 are met, the High Court must by order transfer the application to the Upper Tribunal.

(3) If Conditions 1 and 2 are met, but Condition 3 is not, the High Court may by order transfer the application to the Upper Tribunal if it appears to the High Court to be just and convenient to do so.

(4) Condition 1 is that the application does not seek anything other than
(a) relief under section 31(1)(a) and (b);
(b) permission to apply for relief under section 31(1)(a) and (b);
(c) an award under section 31(4);
(d) interest;
(e) costs.

(5) Condition 2 is that the application does not call into question anything done by the Crown Court.

(6) Condition 3 is that the application falls within a class specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007.

17. Rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the rules”) provides, insofar as relevant:

Case management powers
5.—(1) Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regulate its own procedure.

(2) The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may—
(a) extend or shorten the time for complying with any rule, practice direction or direction;
…
(e) deal with an issue in the proceedings as a preliminary issue;
(f) hold a hearing to consider any matter, including a case management issue;
(g) decide the form of any hearing;
…

Discussion
18. Although I have identified two principal questions at the outset of this judgment, it is appropriate to address them through a series of steps.

The first step: what is the decision under challenge in these proceedings and does it concern precedent fact?
19. For the following reasons, I am entirely satisfied that it is only the respondent’s decision to refuse to reassess the applicant’s age and date of birth, dated 23 April 2025, which is the subject of challenge in these proceedings.

20. First, section 3.1 of the N461 claim form states that the challenged decision is that of the “National Age Assessment Board to refuse to carry out a reassessment of age”.

21. Second, section 8 of that form confirms that the relief sought was an order that the decision of 23 April 2025 is unlawful and that the respondent should carry out a reassessment of age, or at least remake the decision refusing to reassess.

22. Third, the grounds of challenge themselves confirm at [1] that the target is the decision of 23 April 2025. There is no reference at all to any purported challenge to the original decision of 18 April 2024.

23. Fourth, the respondent’s summary grounds of defence in no way indicated that the applicant’s challenge was being treated as one lying against the original age assessment decision.

24. Fifth, the renewed grounds of challenge do not alter the original position.

25. Sixth, there has never been any application to amend the grounds.

26. Seventh, any challenge to the original decision of 18 April 2024 would of course be very significantly out of time and there has never been an application for an extension of time.

27. Eighth, a decision refusing to reassess age pursuant to section 51 of the Nationality and Borders Act 2022 is distinct from the original age assessment decision. The reassessment process has its own mechanism and any decision resulting therefrom is not simply a continuation of the original age assessment decision. The applicant has offered no argument to the contrary.

28. It follows that the challenge in these proceedings has never been one directed at precedent fact. That is because the decision of 23 April 2025 did not determine the applicant’s age, but instead refused to reassess his age: the two are distinct. The factual determination of age by the Tribunal is only required where there is a challenge to a decision which disputes the age and date of birth claimed by an individual because precedent fact is in play: R (oao A) v Croydon LBC and Another [2009] 1 WLR 2557; [2009] UKSC 8, at [33] and R (FZ) v London Borough of Croydon [2011] EWCA Civ 59, at [31]2. Here, there has already been a factual determination of age by the respondent in the unchallenged 2024 decision.

29. This was the context before Judge Ridge when she made the order granting permission and transferring proceedings to the Tribunal. Her reference in [3] of that order to the need for the applicant’s age “to be determined” was, with the greatest of respect, mistaken3.

The second step: is it appropriate to hold a fact-finding hearing?
30. A fact-finding hearing is clearly not appropriate in this case. Beyond what I have already said about the nature of the respondent’s decision of 23 April 2025 and the challenge brought against it, I add the following.

31. There is a principled reason why this case should not proceed to a fact-finding hearing. I agree with Mr Gajjar’s submission that to do so would in effect permit the applicant to pursue an out of time “backdoor challenge” to the original age assessment decision by way of a challenge to what he described as the “gateway decision” to refuse to reassess age.

32. Again on a principled basis, it is important for the Tribunal (or indeed any Court) to approach its decision-making on the correct legal footing. In this case, there is no escaping the fact that the Tribunal (and before it, the Administrative Court) is concerned with a challenge to a decision refusing to reassess age. It is not appropriate for the Tribunal to determine a question of precedent fact which is simply not part of the proceedings.

33. Finally, on a practical level the fact-finding route involves a good deal of time and cost to be expended by the parties. Evidence must be gathered and disclosed in proper form. Witnesses would normally be required to attend the hearing. Counsel will be instructed and, in my experience, then put in a significant amount of work in preparing and presenting the parties’ respective cases. In addition, the Tribunal has to set aside significant judicial and administrative resources for hearings to take place. There is also the question of possible delay: the logistical arrangements for a fact-finding hearing inevitably mean that final resolution of the case will not be possible for several months. These considerations have the result that following a route which is both unnecessary and, in my view inappropriate, would run wholly contrary to the overriding objective.

The third step: what to do?
34. Thus far, I have concluded that the decision under challenge does not concern precedent fact and that a fact-finding hearing is not appropriate.

35. Given the contrary indication in Judge Ridge’s order, the only way to rectify this state of affairs is to vary that order.

The fourth step: is section 25 TCEA 2007 the appropriate mechanism for a variation of the order?
36. Section 25 does not give the Tribunal all the powers of the High Court. By section 25(1), powers are limited to the “matters” specified in specific subsection (2), which provides:

(2) The matters are–
(a) the attendance and examination witnesses,
(b) the production and inspection of documents, and
(c) all other matters incidental to the Upper Tribunal's functions.

37. It is subsection 2(c) which is relevant here. Would a variation of the order be a matter “incidental” to the Tribunal’s functions? For the following reasons, in my judgment it would.

38. First, the power to amend a direction under rule 5(2) of the rules does not in my view include a power to amend an order. Contrary to Mr Gajjar’s suggestion, I also do not consider that the power to decide the form of any hearing under rule 5(3)(g) encompasses the scenario with which I am concerned: the form of a hearing is distinct from the fundamental nature of the proceedings themselves. I can see no other rule which might be of relevance. Thus, there is no provision within the rules which addresses the variation of an order.

39. In any event, section 25(3)(b) TCEA 2007 provides that the supplementary powers of the Tribunal under subsection (1) “shall not be taken to be limited by anything in Tribunal Procedure Rules other than an express limitation.” Nothing in the rules creates any express limitation relating to the variation of an order.

40. Second, the relevant function under section 25(2)(c) TCEA 2007 is that of the Tribunal to determine whether an application for judicial review should be granted permission and, if so, whether relief is appropriate following a substantive hearing: sections 15 and 16 TCEA 2007.

41. Third, in carrying out that function the Tribunal, like the High Court, must be able to manage its proceedings in a just, fair and effective manner. As a matter of principle, justice and effectiveness must encompass ensuring that both parties know the case to be met and that the applicable legal issues are identified in advance of a hearing.

42. Fourth, section 25 TCEA 2007 must be interpreted broadly: R (oao Singh) v SSHD [2019] EWCA Civ 1014, at [18].

43. Fifth, whilst the authorities to which I have been referred are not precisely on point, they either support my conclusion on a general level, or at least do not undermine it. In Singh, the Court Appeal reached the clear conclusion that the Tribunal had the power under section 25(2)(c) TCEA 2007 to set aside its own decision to grant permission in judicial review proceedings, having had “no doubt” that the High Court had the ability to do so: [14], [20] and [37]. That case concerned the absence of the respondent’s representative at a permission hearing, but there is an obvious analogy between the ability to set aside an order granting permission and the variation of such an order.

44. In R (oao Enfield Borough Council) v SSH and Others [2009] EWHC 743 (Admin), an order granting permission was set aside pursuant to section 25 TCEA 2007 primarily because of a procedural irregularity, but with an additional reason that the permission judge might have applied the wrong legal test. It was said that the power to set aside a grant of permission should be exercised “sparingly” and only in an “obvious” case. In R (oao Wilkinson and Others) v Chief Constable of West Yorkshire [2002] EWHC 2353 (Admin), it was held that there was a power to recall and reopen orders and decisions in cases of fraud and mistake. In R (Webb) v Bristol City Council [2001] EWHC 696 (Admin), a permission decision was set aside because the respondent had not had the opportunity to make submissions. None of these cases suggest that section 25 should not apply to the variation of an order. Rather, they are illustrative of the broad scope of the power.

45. With reference to Wilkinson, on one view it may be said that the order of Judge Ridge included a mistake when it referred to the need to determine the applicant’s age. Whether or not that is the case, the fact remains that the authorities do not assist the applicant’s contention that there is no power to vary the order.

46. Sixth, I agree with Mr Gajjar’s submission that the fact that the order was made by a judge sitting in the Administrative Court prior to these proceedings been transferred to the Tribunal does not preclude the existence of a power under section 25 TCEA 2007. There is only a single set of proceedings in existence: i.e. one application for judicial review. The transfer of a case from the Administrative Court to the Tribunal under section 31A(3) SCA 1981 does not entail the initiation of a new application following transfer. The process is, as the provision makes clear, simply a discretionary transfer of “the application” lodged in the Administrative Court over to the Tribunal for the very same application to be determined there. Further, the fact that permission was granted in the Administrative Court prior to transfer is immaterial: the permission stage is simply one aspect of the usual process of determining an application for judicial review and it cannot matter whether a decision is made before or after transfer.

47. Therefore, it cannot be said that a decision to vary an order made by a judge in the Administrative Court constitutes an impermissible trespass into the functions of the High Court. It follows that I reject Mr Jagadesham’s suggestion, gleaned from the Wilkinson case, that it should be for Judge Ridge to decide whether to vary her order. The Tribunal is seized of these proceedings following transfer and there is no jurisdictional or other good reason why an Upper Tribunal Judge should not make a decision on the variation issue at the point at which it arises.

48. In light of the above, I conclude that the Tribunal has a power under section 25(2)(c) TCEA 2007 to vary an order granting permission made by a judge in the Administrative Court prior to proceedings been transferred under section 31A(3) SCA 1981.

The fifth step: should the power under section 25 TCEA 2007 be exercised in the present case?
49. I recognise the applicant’s frustration as regards the way in which this preliminary issue has arisen. As I have already said, Judge Ridge might have been better assisted by the parties in respect of what was stated in her order. However, the nature of the applicant’s challenge was always clear: the target was the refusal to reassess age, not the original age assessment decision. There was some delay in the respondent making the application to vary the order, but it was not excessive. Further, the parties are under a continuing obligation to review their case post-permission and that is what has been done in this case, albeit not as expeditiously as might have been. Finally, varying the order does not prevent the applicant from challenging the decision of 23 April 2025.

50. I remind myself that powers under section 25 TCEA 2007 should be used “sparingly”. However, for the reasons set out previously, this is an “obvious” case in which the order in question misapprehended the nature of proceedings once they were to be transferred to the Tribunal.

51. The ability of the Tribunal to carry out its functions justly, fairly and effectively would be undermined by a failure to vary the order.

52. In all the circumstances, I am satisfied that the power under section 25 TCEA 2007 should be exercised and that the order of Judge Ridge should be varied to the limited extent proposed by the respondent, namely that the words in [3] of that order, “for the Claimant’s age to be determined” are omitted.

53. It follows that the Tribunal’s case management directions, issued on 19 January 2026, should be discharged.

54. This case will now proceed to a substantive hearing on the basis that the decision under challenge, namely the respondent’s refusal to reassess the applicants age, does not concern precedent fact and shall be determined only in light of the public law grounds set out in the original grounds, read in conjunction with the renewed grounds.

55. Fresh case management directions will be issued in due course.

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