RJ v The London Borough of Ealing

In an age-dispute claim, whether a person is under 18 is a precedent question of fact for the court to determine, rather than a decision reviewable only on ordinary judicial-review grounds. An age assessment carries little weight where its reasoning rests on unsupported inferences, factual mistakes, or matters put adversely to the young person without a fair opportunity to respond.

Longitudinal evidence from an experienced teacher may be more reliable than observations made during a short and artificial assessment interview. The court must assess all the evidence and make the best factual finding it can, even where no reliable documentary evidence establishes the precise date of birth.

RJ, an Afghan national, challenged Ealing’s assessment that he was born on 30 May 1992. He maintained that he was substantially younger and entitled to services as a minor.

There had been three assessments of RJ’s age. Two commissioned by Ealing concluded that he was older than claimed. The Tribunal also examined the reassessment of RJ’s brother, HJ, because the brothers consistently asserted an age gap of about four years.

Permission for judicial review was initially refused on the papers, granted on renewal, and the claim was transferred to the Upper Tribunal. The Tribunal conducted the required fact-finding exercise to determine RJ’s true age.

1. Declaration granted. The Tribunal declared that RJ’s date of birth was 1 February 1994. He was therefore 18 by the date of decision and was no longer a minor.

2. The question whether an individual is a child for the purposes of section 20 of the Children Act 1989 is a question of fact with a right or wrong answer. It must ultimately be determined by the court, unlike the evaluative question whether a child is “in need”, which is ordinarily for the local authority subject to judicial-review control: R (A and M) v Croydon and Lambert Borough Councils [2009] UKSC 8.

3. The Tribunal rejected the age assessments as reliable evidence of RJ’s age. The assessments relied on unsupported conclusions from demeanour, maturity, appearance, travel and alleged evasiveness. They also contained factual errors and treated the flawed dental reassessment of HJ as significant. RJ had not been given a proper opportunity to answer provisional concerns that he had lied or had been coached, contrary to the procedural principle drawn from R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin).

4. The original acceptance of HJ’s age survived scrutiny, whereas his later reassessment did not. However, neither brother knew his actual date of birth and their accounts of being told their ages by their mother were rejected. The age gap between them was therefore only an estimate.

5. The Tribunal gave substantial weight to the evidence of RJ’s tutor. Her prolonged experience of teaching adolescents, including Afghan young people, provided a sounder basis for estimating maturity than short interview observations. Applying the approach in R (AM) v Solihull Metropolitan BC [2012] UKUT 00118 (IAC), it found that RJ was 17 in June 2011. As no actual day or month of birth was established, it selected a notional date about halfway through that academic year.

• Upper Tribunal (Immigration and Asylum Chamber): Determined the transferred judicial-review claim by fact-finding and declared RJ’s date of birth to be 1 February 1994.
• High Court: Permission for judicial review was refused on the papers by Silber J, but granted on oral renewal by Stephen Males QC sitting as a deputy High Court judge. The claim was then transferred to the Upper Tribunal.