SO, R (on the application of) v The London Borough of Barking and Dagenham

Where an age-assessment claim turns wholly on the claimant’s identity, the Tribunal must decide that identity on the balance of probabilities; there is no burden of proof. Credibility, documents, and evidence of conduct must be assessed cumulatively.

An independent social worker may take credibility into account in an age assessment. However, where physical appearance, demeanour and interaction do not assist, a later assessor’s credibility review has little value. The Tribunal must itself determine the evidential issues.

The applicant challenged the local authority’s refusal to accommodate him as a former relevant child. The authority maintained that he was not the Eritrean-born person and age he claimed, but was instead HH, born on 21 February 1987. It was common ground that the claim would succeed if his asserted identity were established, and fail if the authority’s asserted identity were established.

Following earlier proceedings concerning accommodation, the matter was remitted and transferred for determination of age. The authority made a new decision on 1 October 2012, adopting an independent age-assessment review which concluded that the applicant was HH. The central issue was therefore one of identity rather than age assessment in the ordinary sense.

1. The claim failed. The Tribunal declared that the applicant’s date of birth was 21 February 1987 and that he was 26 years and one month old at the hearing. He was therefore not entitled to services available to a formerly relevant child.

2. There was no burden of proof. The Tribunal had to determine identity on the balance of probabilities. It admitted the applicant’s late evidence because it was clearly relevant, while treating its lateness as a matter bearing on the evaluation of the evidence.

3. The Tribunal accepted that some alleged inconsistencies were immaterial. It did not regard it as adverse that the applicant’s father opened the call-up letter, nor did it attach significance to the precise point at which an agent handed over a passport. It nevertheless found implausible the applicant’s claimed complete passivity about the identity in which he travelled, his ability to board a flight without documentation, and his account of the terrain at Kassala.

4. The evidence of two witnesses who identified the applicant as the person he claimed to be, the social-services material, and documents which did not appear facially false were relevant. The documents could not be treated in isolation, however. The independent assessor’s review was of minimal assistance because it approached matters which were essentially for the Tribunal, and appearance and demeanour could not assist on the relevant age range.

5. The decisive evidence was that the applicant accepted that his photograph appeared on HH’s visa application and passport. The Tribunal considered that the entry-clearance interview and matching photographs strongly showed that the person interviewed as HH was the applicant. Taking all evidence together, it found that the applicant was HH.

• Upper Tribunal (Immigration and Asylum Chamber): determined the transferred age-assessment judicial review and dismissed the claim, making a declaration as to the applicant’s date of birth.

• Court of Appeal: earlier accommodation proceedings were resolved in the applicant’s favour in R (SO) v Barking and Dagenham LBC [2011] 1WLR 1283. The matter was remitted to the Administrative Court and then transferred to the Upper Tribunal for determination of age.

• Local authority: made a new decision on 1 October 2012, adopting an age-assessment review which identified the applicant as HH.