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

In an age-dispute judicial review, the court must determine for itself, on the balance of probabilities and by reference to all relevant evidence, whether the claimant was a child at the material time. The issue is a precedent question of fact, not a review of the local authority’s assessment on Wednesbury grounds.

Physical appearance, demeanour, height, growth and dental development may assist but require caution. They indicate maturity imperfectly and do not reliably establish chronological age. Credibility may be fundamental. Where the claimant’s account is persistently unreliable, the court may prefer objective evidence and reliable contemporaneous records.

RK claimed to have been born on 15 May 1994. Birmingham City Council assessed him as an adult and maintained that he was born on 25 January 1990. Earlier proceedings against the Secretary of State had been withdrawn after the Secretary of State accepted that RK was a minor. The remaining judicial review was transferred to the Upper Tribunal.

The Tribunal held a fact-finding hearing to determine RK’s chronological age. It considered witness evidence, age-assessment reports, physical indicators, dental evidence, fingerprint evidence and records of RK’s statements in France and the United Kingdom.

1. Declaration granted. The Tribunal found, on the balance of probabilities, that RK was born on 25 January 1990. He was therefore not a child at the material time.

2. The Tribunal had to decide the factual question of chronological age for itself. Neither party bore a burden of proof. It was required to assess the evidence as a whole, rather than review the council’s assessment for irrationality.

3. RK was not a truthful witness. He had repeatedly given false or inconsistent accounts, including concerning his identity, fingerprinting in France, family history and an application for educational maintenance allowance. Where his evidence conflicted with reliable witnesses, the Tribunal preferred the other evidence.

4. The Tribunal treated demeanour and physical indicators with caution. A brief observation of interaction with a supportive adult carried little weight. Height and growth were imperfect indicators of chronological age. Completed eruption of wisdom teeth was also variable, but supported the conclusion that RK was nearer adulthood than his claimed age suggested.

5. The French fingerprint record was particularly significant. RK had no persuasive motive to give a false name and adult date of birth there. His later failure to correct the French name or date of birth, while correcting nationality, supported the finding that the French record was accurate.

6. Costs were reserved for written representations within 14 days.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review proceedings concerning the remaining issue of chronological age were transferred from the Administrative Court by order of Hickinbottom J on 3 June 2011. The Tribunal determined the issue afresh and declared that RK was born on 25 January 1990.
• First-tier Tribunal: Judge Khan dismissed RK’s asylum appeal but found that his claimed date of birth was 15 May 1994. That determination had not been appealed to the Upper Tribunal.