SS, R (on the application of) v The London Brough of Croydon

Where a local authority’s age assessment is challenged, whether the individual is under 18 is a precedent question of fact for the court. The court must determine the person’s true age itself; it does not merely review the authority’s assessment for Wednesbury unreasonableness.

The determination must be holistic. Physical appearance alone is a notoriously unreliable guide to chronological age. The tribunal should assess the reliability and weight of all available evidence, including documents, the individual’s account, observations, and the assessment process. A failure to give the benefit of the doubt in an assessment is a relevant consideration in the court’s own fact-finding exercise.

The claimant, an Afghan national, sought judicial review of Croydon’s second age assessment. It assigned him a nominal date of birth of 1 January 1993. He contended that he was two years younger and remained entitled to services for a minor.

An earlier assessment to the same effect had been withdrawn and remade. In separate immigration proceedings, an immigration judge had rejected the claimant’s protection account and found that he was an adult. Permission for this judicial review had nevertheless been granted and the proceedings transferred to the Upper Tribunal for a substantive fact-finding hearing.

The Tribunal heard evidence from the claimant, social workers, a key worker, a neighbour, and a jointly instructed document expert. The central issue was the claimant’s true date of birth.

1. Declaration granted. The Tribunal determined the claimant’s date of birth to be 15 December 1993. He was therefore 16 years and 8 months old at the second assessment and 18 years and 1 month old at the hearing.

2. The question whether a person is a child for the relevant statutory purpose has one right factual answer. Applying the settled approach described in R (CJ) v Cardiff City Council [2011] EWCA Civ 1590 and R (A and M) v Croydon and Lambert Borough Councils [2009] UKSC 8, the Tribunal had to decide age for itself rather than review the local authority’s evaluative judgment.

3. The claimant’s evidence was unreliable. It contained material contradictions about his education, family, departure from Afghanistan, knowledge of his age, and acquisition of his identity document. The Tribunal accepted that the tazkira was authentic, but it only recorded an unidentified official’s appearance-based estimate and provided little reliable assistance on age.

4. The first assessment was flawed. Adverse matters had not been put to the claimant before the conclusion, and its reasoning contained errors. The second assessment admitted some criticism but was broadly Merton-compliant and remained important evidence. Its assessor had given the claimant an opportunity to answer the proposed adverse reasoning.

5. Physical appearance could not conclusively establish the claimant’s age. The Tribunal accepted the guidance in R (NA) v London Borough of Croydon [2009] EWHC 2357 (Admin) that appearance alone is notoriously unreliable. Weighing the evidence holistically, including evidence that the claimant’s mother had said he would turn 14 in December 2008, the Tribunal selected the mid-range date of 15 December 1993.

The parties could make written submissions on any further orders and costs.

• Upper Tribunal (Immigration and Asylum Chamber): On judicial review, the Tribunal made its own factual determination of age and declared the claimant’s date of birth to be 15 December 1993.
• Earlier local-authority process: Croydon withdrew its first age assessment after a challenge and made a second assessment on 9 September 2010.
• Immigration proceedings: An immigration judge dismissed the claimant’s appeal and found him to be an adult. Permission to appeal that decision was refused. The Tribunal was not bound by the immigration judge’s findings when determining age in these proceedings.