MNA, R (on the application of) v London Borough of Croydon

In a judicial determination of a disputed young person’s age, the court must determine the precedent fact for itself. It must act inquisitorially and decide the person’s age on the balance of probabilities.

There is no burden of proof and no formal rule requiring a benefit of the doubt. The fact-finder must nevertheless assess the evidence sympathetically. It may be inappropriate to expect conclusive age evidence from an unaccompanied person without original identity documents. Cultural and age-related explanations may also be relevant when evaluating apparent deficiencies in the evidence.

The claimant, an Afghan national, contended that he was born on 1 January 1995 and was a child when he arrived in the United Kingdom in July 2008. The London Borough of Croydon’s age assessment dated 9 December 2010 instead assigned him a date of birth of 1 January 1992.

He brought judicial-review proceedings challenging that assessment. His immigration appeal against a later refusal to vary leave to remain had been adjourned pending the result. The Upper Tribunal had to determine, as a matter of fact, the claimant’s correct date of birth.

1. The claim was dismissed. The Tribunal declared that the claimant’s date of birth was 1 January 1992.

2. Following R (A) v Croydon LBC [2009] 1 WLR 2557 and R (AE) v London Borough of Croydon [2012] EWCA Civ 547, age was a precedent fact to the local authority’s exercise of its powers under section 20(1) of the Children Act 1989. There was a right and wrong answer, which the Tribunal had to determine for itself.

3. The Tribunal had to act inquisitorially and decide the issue on the balance of probabilities. There was no burden of proof. Nor was there a formal benefit-of-the-doubt rule. The evidence nonetheless required a sympathetic assessment, particularly where an unaccompanied person lacked original identity documents. The Tribunal also took account of possible cultural and age-related explanations for apparent evidential weaknesses.

4. The claimant was not a witness of truth. His accounts concerning his age, travel and personal history contained material discrepancies. The Tribunal gave very substantial weight to the credible, corroborated evidence of Cookham Wood staff that the claimant had said he was over 19 in June 2012. It rejected his assertion that this resulted from misunderstanding or language difficulty.

5. The local authority’s selection of 1 January 1992 was pragmatic and benign, not perverse. The evidence compellingly established that there was no reasonable likelihood that the claimant had been born on or around 1 January 1995.

This was a first-instance judicial determination of a disputed age. The claimant’s immigration appeal against the refusal to vary his leave to remain had been adjourned by the First-tier Tribunal pending this determination.