MK, R (on the application of) v Wolverhampton City Council

An age dispute affecting local-authority support requires the court to determine the young person’s age as a precedent fact. The tribunal acts inquisitorially, decides the issue on the balance of probabilities, and applies a sympathetic assessment of the evidence without placing a burden of proof on either party.

Age must be assessed holistically. Credibility findings in an immigration appeal and a flawed social-work assessment may have limited weight. Dental and physical-development evidence may nevertheless be highly probative where it is properly contextualised. A court may grant a declaration of age without quashing an impugned assessment where no further public-law relief would serve a useful purpose.

The applicant, a Bangladeshi national, claimed to have been born on 25 December 1995 and to have arrived in the United Kingdom as a child in 2007. An Immigration Judge had accepted that claimed age in allowing his human-rights appeal, after preferring Dr Birch’s 2008 assessment to assessments by Birmingham City Council.

When Wolverhampton City Council later assessed the applicant as an adult and proposed to end his accommodation and support, he obtained permission to bring judicial review. The Upper Tribunal heard extensive factual, social-work, psychiatric, dental and physical-development evidence.

The central issue was the applicant’s age as a precedent fact for the exercise of powers under the Children Act 1989.

1. Declaration granted. The Tribunal declared that the applicant was born on 19 June 1992. He was therefore not a child when the respondent’s assessment was made.

2. Age was a precedent fact. Following R (A) v Croydon LBC [2009] 1 WLR 2557 and R (AE) v London Borough of Croydon [2012] EWCA Civ 547, the Tribunal had to determine the matter itself, inquisitorially and on the balance of probabilities. There was no burden of proof. The evidence nonetheless required a sympathetic assessment in light of the applicant’s circumstances.

3. The earlier Immigration Judge’s acceptance of the claimed age was not determinative. The immigration tribunal lacked jurisdiction to make an age declaration in rem. Its credibility finding had limited weight, particularly because it materially relied on Dr Birch’s report. Later judicial criticism showed that Dr Birch’s unreliable statistical method could not safely be separated from her wider assessment.

4. The applicant’s account contained significant credibility difficulties, including misleading information about his Bangladeshi background and the circumstances of his arrival. Those difficulties did not destroy all his evidence, but meant that other evidence assumed greater importance.

5. The dental evidence was substantially probative. It was extremely unusual for a person under 18 to have all four wisdom teeth well erupted and showing wear. The fact that the applicant had ceased growing by June 2008 also strongly indicated that he was materially older than his claimed age. Taking account of the whole evidence, including behavioural evidence modestly favourable to him and the need for a sympathetic assessment, the Tribunal placed him at the bottom of the relevant dental-age range: 16 on 19 June 2008.

6. Mr Mukalazi’s assessment was seriously flawed, including through absent notes, inadequate opportunity to address adverse matters, and an unsatisfactory averaging method. Its methodology provided no material assistance. However, a separate declaration of unlawfulness or an order quashing the decision would serve no useful purpose. The delay objection also failed because the short delay caused no material prejudice.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review determined by declaration that the applicant was born on 19 June 1992.
• Asylum and Immigration Tribunal: In 2009, Immigration Judge Sommerville allowed the applicant’s appeal on human-rights grounds after accepting his claimed age; the determination was not challenged by the Secretary of State.