KA (Afghanistan) v Secretary of State for the Home Department

In an age-dispute appeal arising from an asylum removal decision, the tribunal must decide as a matter of substance whether the appellant was a child at the relevant time, based on all the evidence. The initial benefit of the doubt in the Secretary of State’s age-assessment policy applies only pending the decision and does not determine the statutory appeal. A Merton-compliant assessment must be sought, but an assessment free from criticism is not a precondition of a valid decision. The tribunal may assess age using credibility evidence even where expert and local-authority reports are flawed or unreliable. “Holistic” assessment means evaluating all relevant evidence. The appellant bears the overall burden in the asylum appeal to the applicable lower standard.

KA, an Afghan national who claimed to have been 15½ when he sought asylum, challenged the Secretary of State’s decision to treat him as an adult and remove him. A Surrey County Council assessment concluded that he was over 18. An expert report supporting a younger age was later obtained. The First-tier Tribunal dismissed his appeal.

The Upper Tribunal set aside that decision, reconsidered the evidence, rejected both reports, found KA’s account fabricated, concluded that he had not shown a reasonable likelihood of being under 18 at the relevant date, and dismissed the appeal. KA appealed to the Court of Appeal on a single ground. The central issue was whether defects in the local-authority assessment meant that the policy’s benefit of the doubt continued, or whether the Upper Tribunal was required to determine age itself under the statutory appeal scheme.

1. Appeal dismissed. The Upper Tribunal had to determine the substantive question whether KA was under 18 at the relevant time, together with the other issues arising on the appeal against the removal decision. The statutory appeal was not confined to reviewing the process by which the Secretary of State reached the age decision. This was consistent with the approach in R (A & M) v Croydon and Lambeth BC [2009] UKSC8.
2. The Asylum Policy Instruction’s benefit of the doubt was an initial measure pending a careful assessment and final decision. It did not continue to govern the appeal after the Secretary of State had decided that KA was over 18.
3. The policy required the Secretary of State to seek a Merton-compliant assessment, but it did not make an assessment incapable of criticism a precondition to a legally valid decision. The Secretary of State had material supporting the conclusion that KA was over 18. The correctness of that conclusion was then for the tribunal to determine. An applicant remained entitled to challenge the assessment and adduce documentary, expert or other evidence.
4. The Upper Tribunal was entitled to determine age after rejecting the Surrey report and Dr Birch’s report. Credibility could have a significant role in an age assessment. Decision-makers may have to decide on less than perfect or conclusive evidence, as stated by Lady Hale in R (A & M) v London Borough of Croydon and Lambeth, paragraph 27.
5. A disputed-age applicant was not automatically entitled to be treated as a child for tribunal procedures concerning evidence. The tribunal had to consider the fairest procedure under the applicable Rules and Guidance. No particular request or objection had been made concerning the way KA gave evidence.
6. “Holistic” age assessment meant appraising all relevant evidence before reaching a conclusion. The overall burden in this asylum appeal rested on KA to the usual lower standard. The Upper Tribunal’s credibility findings did not require a separate Lucas self-direction, since nothing showed that the judge had overlooked the possibility that a person may lie about one matter but be truthful about another.
7. Lewison LJ regarded the issue as a pure question of fact raising no point of law on which the Court of Appeal could interfere. Longmore LJ agreed with both judgments.

1. Court of Appeal (Civil Division) [2012] EWCA Civ 1420: appeal dismissed.
2. Upper Tribunal (Immigration & Asylum Chamber): Upper Tribunal Judge Spencer set aside the First-tier Tribunal’s decision, remade the decision, and dismissed the appeal on all grounds.
3. First-tier Tribunal: dismissed KA’s appeal against the Secretary of State’s immigration decision on 14 May 2010.
4. Secretary of State: decision letter dated 4 March 2010, followed by a notice of removal dated 19 March 2010.