ZS, R (on the application of) v Secretary of State for Home Department

In an age-dispute judicial review, the court must determine as a matter of fact whether the claimant was under 18 at the material time. The court must apply the balance of probabilities without placing a legal burden on either party. It should not ask whether the local authority has proved that the claimant was an adult or whether the claimant has proved that he was a child. A local authority age assessment remains relevant evidence, but the court must assess it together with all other evidence, including credibility and documents. Where the evidence establishes that the claimant was over 18 on arrival, the age-related claim fails and any protective stay may be removed.

The claimant sought judicial review in proceedings involving disagreement about his age. The sole issue directed for determination at the hearing was whether he was a child, as he claimed, or over 18 when he entered the United Kingdom. The claimant relied on his own evidence, evidence from his uncle, and Afghan identity and health documents. The Secretary of State relied, among other matters, on local authority age assessments and evidence from the social workers who conducted them.

The court was required to determine the claimant’s age as a factual issue and to decide the appropriate evidential approach.

1. Issue and approach. The court had to decide whether the claimant was under 18 at the material time. Following A v Croydon London Borough Council [2009] UKSC 8, the final decision was for the court and was one of pure fact. RF and others v Lewisham London Borough Council [2010] 1 FLR 1463 confirmed that a local authority age assessment could remain relevant and assist the court.
2. Burden and standard. Applying the approach in R(CJ) v Cardiff City Council [2011] EWCA Civ 1590 at paragraph 53, the court applied the balance of probabilities. No legal burden or evidential hurdle lay upon the claimant. The court was not to ask whether the local authority had proved that he was an adult, or whether he had proved that he was a child.
3. Assessment of the evidence. The claimant and his uncle were unreliable witnesses. The court identified substantial inconsistencies in the claimant’s accounts, found the documents relied on to be of limited or no assistance, and treated the Taskera as recording information supplied by the claimant’s father rather than proving age. The Oxfordshire age assessment was found to be Merton-compliant and remained material, notwithstanding its withdrawal for reasons relating to the local authority’s continuing legal duty.
4. Disposition. On the balance of probabilities, the claimant was at least 20 at the date of judgment and had been over 18 on arrival in the United Kingdom. The claim was dismissed. The stay on removal was removed. Costs were ordered in the terms proposed, subject to the position during the period of public funding.