JK v Nottingham City Council

In an age-dispute judicial review, whether an unaccompanied asylum seeker is under 18 is a precedent question of fact. The court or tribunal must determine it for itself on the evidence, rather than merely review a local authority assessment for Wednesbury unreasonableness.

The weight given to age assessments depends on their reliability. Defects such as absent contemporaneous notes, unexplained inconsistencies, untested assertions, lack of relevant expertise, and failure to obtain available information may substantially reduce their value. They do not necessarily require exclusion. The fact-finder must assess all the evidence and make the best factual determination available.

JK, an Afghan national, challenged Nottingham City Council’s assessment that his date of birth was 1 December 1991. He maintained that he was born on 1 December 1994. The council withdrew its own 2011 assessment, but relied on earlier material, including an assessment by Kent County Council and a medical age report.

Permission for judicial review had been granted on the basis that the notified assessment was arguably wrong, and the proceedings were transferred to the Upper Tribunal for the required fact-finding exercise. JK relied on his evidence, his brother’s evidence, a Taskera and a First-tier Tribunal determination. The central issue was JK’s true date of birth.

1. Declaration granted. The Tribunal declared that JK’s date of birth was 15 September 1993. It found that he was younger than his brother, whose accepted date of birth had not been displaced, but rejected the brothers’ evidence about the asserted age gap and several elements of their chronology.

2. Applying R (A and M) v Croydon and Lambert Borough Councils [2009] UKSC 8, as explained in R (CJ) v Cardiff City Council [2011] EWCA Civ 1590, the Tribunal held that whether a person is a child for the purposes of Children Act 1989 is a question of fact for the court or tribunal to decide. It was therefore required to reach its own conclusion from the evidence.

3. The Tribunal refused to restrict the council’s cross-examination because the authors of age-assessment material were not called. The parties remained entitled to question evidence in issue. The absence of the authors and the opportunity to test the material affected weight, not admissibility or procedural equality.

4. The Kent assessment had serious defects. It lacked contemporaneous notes, a clear account of the assessors’ expertise, a reliable record of the interview, and an explanation for material inconsistencies. Its contents were not wholly disregarded, but were treated with reduced weight. The withdrawn Nottingham assessment was disregarded because its contents had not been put to JK, had not been read back to him, and lacked a reliable evidential foundation. Dr Michie’s report was given no weight because its methodology and supporting observations were unexplained.

5. Having assessed the remaining evidence, the Tribunal found that JK and his brother had colluded to advance a younger age and an age gap of two to three years. Nevertheless, the accepted age of the brother, the finding that JK was younger, and the limited reliable chronology supported a birth date during 1993. The Tribunal selected 15 September 1993 as the best available determination. Further written submissions were permitted on consequential orders and costs.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review proceedings were transferred to the Tribunal after permission was granted. The Tribunal conducted the fact-finding exercise and declared JK’s date of birth to be 15 September 1993.
• Permission stage: HH Judge Davis QC, sitting as Recorder of Birmingham, held that it was arguable that the age assessment notified on 2 August 2011 was wrong and granted permission on 6 January 2012.