MR, R (on the application of) v Derby City Council

In a judicial review of a local authority age assessment, the tribunal must determine the applicant’s age as a fact. It acts inquisitorially and decides, on the balance of probabilities, whether the person was a child at the assessment date. There is no burden of proof and no formal benefit-of-the-doubt rule. The evidence must nevertheless be assessed sympathetically where an unaccompanied person lacks original identity documents.

Credible evidence of the applicant’s account must be evaluated in the round. Limited observations of appearance, demeanour and emotional maturity during a single assessment will not displace that evidence unless they are sufficiently cogent.

MR, R (on the application of) v Derby City Council challenged Derby City Council’s assessment of 24 September 2012 that he was over 18. He was an Iranian national who said that he had arrived in the United Kingdom in January 2012 and had been born on 22 May 1996.

An earlier assessment, later withdrawn, had assigned a different date of birth. Permission for judicial review was granted by a Deputy High Court Judge and the claim was transferred to the Upper Tribunal. The Tribunal heard evidence from MR and the two social workers who conducted the later assessment.

The central issue was MR’s date of birth and, accordingly, whether he was a child when the impugned assessment was made.

1. The claim succeeded. The Tribunal declared that MR was born on 22 May 1996.

2. Following R(A) v Croydon LBC [2009] 1 WLR 2557, age was a precedent fact for the local authority’s exercise of its powers under section 20(1) of the Children Act 1989. The Tribunal therefore had to resolve age as a matter of fact. Applying R(AE) v London Borough of Croydon [2012] EWCA Civ 547 and R(CJ v Cardiff CC) [2011] EWCA Civ 1590, it acted inquisitorially, applied the balance of probabilities and imposed no burden of proof.

3. The applicant’s evidence was the principal evidence available. The alleged inconsistency about identity documentation was not borne out by the social workers’ contemporaneous notes. His limited understanding of dates, his account of how a neighbour translated his shunasnameh, and the absence of documentary evidence did not materially undermine his credibility.

4. The respondent had also failed to take proper account of the absence of discrepancies in the applicant’s international-protection account. That account was relevant to the overall credibility assessment, even though social workers did not determine the protection claim itself.

5. The observations of demeanour, emotional maturity and physical appearance did not justify a contrary finding. They arose mainly from one interview, did not adequately take account of the applicant’s background or the earlier assessment, and did not provide sufficiently cogent evidence to displace his credible account. On the balance of probabilities, the applicant had been correctly informed of his date of birth.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of Derby City Council’s age assessment of 24 September 2012 succeeded. The Tribunal declared the applicant’s date of birth to be 22 May 1996.
• High Court: A Deputy High Court Judge granted permission for judicial review on 4 January 2013. The claim was then transferred to the Upper Tribunal.