JS, R (on the application of) v Birmingham City Council

In an age-assessment judicial review, a claimant’s age is a precedent fact for the exercise of child-care powers. The Tribunal must determine it for itself, inquisitorially and on the balance of probabilities. There is no burden of proof or formal benefit-of-the-doubt rule. The evidence must nevertheless be assessed sympathetically, particularly where an unaccompanied person lacks original identity documents.

An age assessment is evidential material, not a conclusion to which the Tribunal defers. Procedural shortcomings, including the absence of an independent adult, affect its weight only if material in the circumstances. On the evidence as a whole, the claimant’s account was unreliable and the local authority’s assessments were accorded weight.

The applicant, an Afghan national who asserted that he arrived in the United Kingdom aged 12, challenged Birmingham City Council’s July 2009 assessment that he was over 18. The Council had also made an earlier February 2009 assessment that he was an adult.

Permission for judicial review was granted by the High Court and the claim was transferred to the Upper Tribunal under section 31A of the Senior Courts Act 1981. An earlier Upper Tribunal decision quashing the assessment was overturned by the Court of Appeal in R (on the application of K and Others) v Birmingham City Council and the Secretary of State for the Home Department [2012] EWCA Civ 1432.

The Tribunal had to determine as fact whether the applicant was a child when assessed, and the weight properly to be given to his evidence and the Council’s two assessments.

1. Declaration granted. The Tribunal declared that the applicant’s date of birth was 1 January 1991. It found that he was over 18 at the July 2009 assessment and was just under 18 on arrival in December 2008.

2. Age is a precedent fact for the exercise of powers under section 20(1) of the Children Act 1989. Applying R (A) v Croydon LBC [2009] 1 WLR 2557, R (AE) v London Borough of Croydon [2012] EWCA Civ 547, and R (CJ) v Cardiff CC [2011] EWCA Civ 1590, the Tribunal determined age for itself, inquisitorially and on the balance of probabilities. There was no burden of proof. The absence of a formal benefit of the doubt did not remove the need for a sympathetic evaluation of evidence from an unaccompanied claimant without original documents.

3. The applicant’s evidence was not reliable. The Tribunal found deliberate and persistent untruths about shaving, his capacity for independent living, contact with family, mosque attendance and fasting. In the circumstances, those untruths were closely connected with his claimed age. The qualification in R (B) v Merton LBC [2003] 4 All ER 280, that an untrue account may have an age-unconnected explanation, did not assist him.

4. The Tribunal did not defer to the Council’s social workers. It assessed the two age assessments and their underlying materials for itself. The social workers’ lack of specific age-assessment training, the absence of an independent adult, alleged interpreter difficulties and alleged unfair questioning did not materially reduce their evidential weight. The absence of an independent adult was a relevant factor, but R (Z) did not establish that it invariably limited the weight of an assessment.

5. The applicant’s appearance, demeanour, sophistication, independent skills and the reliable assessment evidence, viewed holistically and with due allowance for cultural differences, supported the conclusion that he was materially older than claimed. The Tribunal reserved any further order, including costs, if not agreed.

• Court of Appeal: Allowed Birmingham City Council’s appeal from an earlier Upper Tribunal decision and held that the Council had never adopted the asserted policy: R (on the application of K and Others) v Birmingham City Council and the Secretary of State for the Home Department [2012] EWCA Civ 1432.
• Upper Tribunal: On 13 December 2011, quashed the July 2009 age assessment on the basis of the asserted Age Assessment Joint Working Protocol policy. That decision was overturned by the Court of Appeal.
• High Court: Granted permission for judicial review on 9 December 2010 and transferred the proceedings to the Upper Tribunal.