Saifullah Rawofi v The Secretary of State for the Home Department

Where age is disputed in an asylum appeal, the appellant bears the burden of proof. The applicable standard is a reasonable degree of likelihood, not the balance of probabilities. That standard applies uniformly to factual issues in asylum appeals, including age, notwithstanding that age-assessment judicial review proceedings use a different approach.

An immigration judge's reference to the balance of probabilities will not amount to a material error of law where the judge correctly stated the lower asylum standard, evaluated all the evidence, and the findings necessarily satisfied that lower standard.

The appellant claimed to have been under 18 when he arrived in the United Kingdom and sought asylum. A local-authority assessment concluded that he was over 18, while a later independent assessment concluded that he was under 18. Both assessments were accepted as professionally conducted and Merton-compliant.

Designated Immigration Judge Coates preferred the local-authority assessment and found that the appellant was at least 18. Although the judge correctly stated the asylum standard as a reasonable degree of likelihood, he expressed his ultimate finding as being made on the balance of probabilities. The appellant appealed on the issue whether that wording disclosed a material error of law.

1. Appeal dismissed. The judge's reference to the balance of probabilities did not materially affect the outcome.
2. In an asylum appeal, age is a factual issue to which the established asylum standard applies. The appellant bears the burden of showing the relevant facts to a reasonable degree of likelihood. The Tribunal was bound by R v Secretary of State for the Home Department Ex parte Sivakumaran [1988] AC 958 and R (Karanakaran) v Secretary of State for the Home Department [2000] EWCA Civ 11. It could not isolate age and impose the balance-of-probabilities standard used in age-assessment judicial review proceedings.
3. The differing judicial-review approach did not alter the asylum jurisdiction. In judicial review age-assessment proceedings, neither party bears the burden; the court determines age without allocating that burden. In an asylum appeal, the burden remains on the appellant.
4. The judge had correctly stated the reasonable-degree-of-likelihood standard, examined the competing professional assessments in detail, and preferred the assessment finding the appellant to be an adult. His conclusion that the evidence also established adulthood on the higher balance-of-probabilities standard showed the strength of his factual conclusion. It did not show that he had wrongly required the appellant to satisfy that higher standard.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the determination that the appellant was at least 18.
• First-tier Tribunal: Designated Immigration Judge Coates, by a determination dated 21 December 2010, preferred the Lincolnshire social-services age assessment and treated the appellant as an adult.