Upper Tribunal gives guidance on judicial review challenges brought to decisions of the Home Office’s National Age Assessment Board

The Upper Tribunal on 29 April 2026 handed down judgment in the case of R (NXP and NAN) v Secretary of State for the Home Department (JR-LON-2025-002505, JR-2025-LON-002307). 

The cases were identified as appropriate vehicles for the Tribunal to address matters of general importance in challenges to age assessments conducted by designated decision makers under the Nationality and Borders Act 2022 (“NABA 2022”) sitting within the National Age Assessment Board (“NAAB”)

The Tribunal considered two key questions:

1. What is the appropriate venue for lodging judicial review applications against decisions by a “designated person” pursuant to sections 50 and 51 NABA 2022 and in the light of the (Lord Chief Justice’s) Transfer Direction?
2. In challenges to decisions made by a “designated person” pursuant to sections 50 and 51 of NABA 2022, is the appropriate respondent the SSHD or NAAB or some other nomenclature?

The Tribunal came to the following key conclusions:

• Appropriate venue: A challenge to an age assessment conducted by NAAB pursuant to sections 50 and 51 NABA 2022 falls within paragraph 1(i) of the Transfer Directions and must be brought in the Upper Tribunal. This does not affect that challenges to age assessments conducted by local authorities are issued in the Administrative Court. Where challenges are brought that include another grounds in addition to a challenge to the age assessment (such as the failure to refer a putative child to the NRM as a potential victim of trafficking which is a matter that the Tribunal does not have jurisdiction over), claimants will need to consider the scope of the challenge before deciding on the appropriate forum in which the claim is issued.
• Interim relief: The Upper Tribunal can determine applications for interim relief in NAAB challenges where a mandatory order is sought requiring a local authority to support and accommodate the applicant pending final hearing. Where such an application is made, the local authority should be named as an interested party, be served with the claim form and have an opportunity to respond before a decision is made on interim relief.
• Appropriate Respondent: Where an age assessment is made pursuant to sections 50 or 51 NABA 2022, the appropriate respondent to a judicial review challenge is the Secretary of State for the Home Department, whether lodged in the Administrative Court or Upper Tribunal.

Brief background 

Both NXP and NAN are young asylum seekers who were in the care of Rotherham MBC and Hertfordshire County Council respectively. The local authorities referred each to the NAAB requesting that age assessments, pursuant to section 50 of NABA 2022, be conducted on their behalf. Both claims were issued in the Administrative Court and permission was granted and the claims transferred to the Upper Tribunal for a fact-finding hearing.

Prior to case management hearings in both cases, the SSHD made applications to substitute the Respondent to the proceedings from the SSHD to the NAAB, asserting that the NAAB was the appropriate respondent. The Tribunal listed those applications for hearing, linking the cases of NXP and NAN to address the questions of wider importance identified above.

Appropriate venue

It has been the long-standing position that age dispute challenges are issued in the Administrative Court but upon the grant of permission, are transferred to the Upper Tribunal (IAC), pursuant to section 31A of the Senior Courts Act 1981, for a fact-finding hearing to be conducted. In R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 at [§31], the Court explained that this was because the Administrative Court does not habitually decide questions of fact on contested evidence and is not generally equipped to do so.

The question before the Upper Tribunal was whether, in the light of a NAAB age assessment being conducted under NABA 2022 and therefore being a decision made under the Immigration Acts (pursuant to section 61 UK Borders Act 2007), whether under the Lord Chief Justice’s Transfer Direction, transfer of the case to the Upper Tribunal was mandatory.

The Tribunal rejected the SSHD’s submission that a “straightforward approach” to reading of the statutory provisions was appropriate, finding that too simplistic particularly in the light of the case of ABW v Secretary of State for the Home Department [2025] 1 W.L.R. 1685 where the Court (Dove J) considered whether transfer of a claim challenging a public order disqualification decision under section 63 NABA 2022 to the Tribunal was mandatory and concluded it was not.

Whilst accepting that it was necessary to consider this issue in a purposive and nuanced manner, the Tribunal distinguished ABW and found challenges to NAAB assessments should be issued in the Tribunal because:

• Although one purpose of the statutory scheme under s.50 and s.51 NABA 2022 is to determine duties held by a local authority under CA 1989, that is not the primary purpose. Equally important is the SSHD’s determination of how to exercise immigration functions in relation to that person under s.51.
• Unlike POD decisions as considered in ABW, age assessments under NABA 2022 are only conducted on persons subject to immigration control (s.49(1)(a) NABA 2022).
• There is a clear nexus between the NAAB age assessment and the exercise of immigration functions, which inescapably places an age assessment firmly in the territory of the Tribunal’s expertise and supervisory jurisdiction in respect of immigration matters.

Therefore, challenges to age assessments conducted under NABA 2022 must be brought in the Tribunal. This does not affect that challenges to age assessments conducted by local authorities continue to be issued in the Administrative Court as such decisions are not decisions made under the Immigration Acts and are therefore not captured by the Transfer Direction.

The Tribunal noted that in some cases (as NAN was an example) challenges can be brought to the age assessment but with additional grounds of challenge, for example a failure to refer to the NRM which is a matter over which the Tribunal does not have jurisdiction. Whilst noting that there is a risk of confusion and/or administrative burden for cases to be issued in the Tribunal only for the claim to then be transferred to the Administrative Court to determine any additional matters that fall outside the Tribunal’s jurisdiction, the Tribunal considered that  it is not unusual and the Court and Tribunal are well versed in transfer between the two jurisdictions with the Tribunal’s case management powers sufficiently flexible to ensure any delay is minimised.

The Tribunal considered it not unreasonable to expect an applicant to have given careful consideration to the scope of any challenge prior to deciding the appropriate forum in which the claim is issued.

Interim relief

In the cases of both NXP and NAN, the relevant local authority had agreed to maintain the provision of support and accommodation pending the challenges brought to the NAAB age assessments. As a result, neither claim involved an application for interim relief. The Tribunal however observed that it had not been suggested that the inclusion of an application for interim relief requiring Children Act 1989 support be provided to an applicant pending conclusion of the proceedings was a matter which the Tribunal was unable to consider. 

The Tribunal however observed that where an application for interim relief is made, the party to whom the order is directed, namely the local authority in question, should be named as an interested party, served with the claim form and application and has an opportunity to respond before a decision is taken on the application for interim relief.

Appropriate Respondent

The SSHD had applied for an order substituting the Respondent to both claims from SSHD to the NAAB or in the alternative, to alternative such as the “designated decision-maker for age assessments” or the “designated age assessment decision-maker”. 

The SSHD contended that NAAB (or some other nomenclature) was the correct respondent on the basis that NABA 2022 created a new statutory regime for age assessments where the designated decision maker is the only person who can conduct age assessments under NAAB and those designated persons operate under NAAB which is a distinct body from the SSHD. The SSHD suggested that the fact that age assessments conducted under NABA 2022 were binding on the SSHD by virtue of s.50(7) and s.51(3) NABA 2022 strongly indicated that NAAB operates outside of and is distinct from the SSHD. The SSHD argued that there was no infringement of the Carltona principle because NAAB and/or “designated persons” have a distinct legal identity and are not the alter ego of the SSHD.

The Applicants considered the SSHD’s reasoning to be flawed and the Upper Tribunal agreed, concluding that age assessments conducted under NABA 2022 are taken by the SSHD and the Carltona principle applies, such that the SSHD holds ministerial responsibility for NAAB age assessments.

NXP was represented by Antonia Benfield of Doughty Street Chambers and Lindsay Cundall of the Anti-Trafficking and Labour Exploitation Unit (ATLEU). NAN was represented by Eva Doerr of Garden Court Chambers and Gimhani Eriyagolla of Wilson Solicitors LLP.