ES, R (on the application of) v London Borough of Hounslow

In a judicial review concerning a local authority’s obligations to a child, the court must determine disputed age as a precedent fact. It must assess all the evidence and decide the issue on the balance of probabilities. Neither party bears a legal burden of proving age.

An earlier immigration tribunal finding on age is relevant background and should receive proper weight, but it is not determinative. A local authority may reassess age in light of further evidence. The court must make its own factual assessment, giving due allowance for the evidential difficulties faced by an unaccompanied young person.

The claimant, an Afghan national, sought judicial review of the defendant local authority’s assessment that he was born on 1 June 1993. He maintained that he was born on 1 June 1996.

Permission was granted by the High Court and the claim was transferred to the Upper Tribunal. An immigration judge had previously accepted the claimant’s asserted age when allowing his asylum appeal, but the defendant later carried out a further assessment.

The Tribunal heard evidence from the claimant, social workers, educational witnesses and an adviser from the Refugee Council. It also considered independent social-work reports and agreed expert dental evidence. The central issue was the claimant’s chronological age and date of birth.

1. Declaration granted. The Tribunal assessed the claimant’s date of birth as 1 March 1994. The defendant was therefore required to provide services on that basis. The Tribunal subsequently made no order as to costs, with detailed assessment of the claimant’s publicly funded costs.

2. Following R (A) v London Borough of Croydon [2009] UKSC 8, age was a precedent fact for the court’s own determination. Applying R (CJ) v Cardiff City Council [2011] EWCA Civ 1590, the Tribunal held that it should evaluate all the evidence and decide age on the balance of probabilities. Neither side bore a legal burden of proof.

3. The immigration judge’s earlier acceptance of the claimant’s asserted age was not determinative. It formed part of the context and merited proper weight as an independent finding. The local authority could nevertheless reassess age, and the Tribunal could reach a different conclusion on the fuller evidence before it.

4. The Tribunal found the claimant unreliable on material aspects of his age evidence. It gave weight to the social-work assessments, educational evidence that he had said he was 17, and dental evidence strongly indicating that he was older than claimed. It retained a limited benefit of the doubt concerning evidence that he may have been born around the Afghan New Year. That evidence supported the assessed date of 1 March 1994 rather than either party’s asserted date.

5. On costs, the Tribunal applied CPR 43.3(4). Although the claimant had achieved a different date of birth from that assessed by the defendant, his success was limited and his evidence had not been credible. Having regard to the parties’ conduct and all the circumstances, the proper order was no order as to costs.

• Upper Tribunal (Immigration and Asylum Chamber): judicial-review claim transferred from the High Court after permission was granted. The Tribunal declared that the claimant’s date of birth was 1 March 1994.
• Costs decision: applying CPR 43.3(4), the Tribunal made no order as to costs.