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

In an age-dispute judicial review, the Tribunal must determine the applicant’s age as a fact. It acts inquisitorially, applies the balance of probabilities, and places no burden of proof on either party.

The assessment is holistic. General credibility may inform the reliability of a claimed age. Physical appearance, facial hair and evidence of an independent lifestyle may be relevant, but no single indicator is determinative. Expert age evidence requires cautious evaluation where its methodology has been materially criticised.

The applicant, an Afghan asylum seeker, claimed to have been 14 on arrival in the United Kingdom. Birmingham City Council’s 2010 assessment concluded that he was over 18 and assigned him a date of birth of 1 January 1992. A later review maintained that conclusion.

A paediatrician and an immigration judge had accepted the claimed age, although the asylum account itself was rejected. Earlier judicial-review proceedings concerning the Council’s policy reached the Court of Appeal, which allowed the Council’s appeal and directed an expedited final hearing. The Tribunal was required to decide the applicant’s age as a matter of fact.

1. The Tribunal found that the applicant’s date of birth was 1 January 1992. It therefore accepted the Council’s conclusion that he was an adult when assessed in September 2010.

2. Following R (A) v Croydon LBC [2009] 1 WLR 2257, the Tribunal’s task was to resolve age as a question of fact. It had to proceed inquisitorially, decide the question on the balance of probabilities and impose no burden of proof on either side.

3. Credibility formed a legitimate part of that holistic assessment. The Tribunal found that the applicant had initially claimed to be 16 before asserting that he was 14. It also found material inconsistencies concerning his family, place of origin and account of risk. An immigration judge’s acceptance of age did not bind the Tribunal, particularly where that judge had treated general credibility as separate from age.

4. Physical appearance and facial hair were relevant but not conclusive. The Tribunal preferred the evidence of the Council’s social worker and accommodation manager, supported by the screening photograph, to the paediatrician’s observations. It also found that the applicant had displayed significant independence in managing his affairs, accommodation and travel. Those matters were consistent with an age greater than claimed.

5. The Tribunal gave only limited assistance to the paediatrician’s report. Her previous statistical approach had been criticised in R (on the application of “R”) v London Borough of Croydon [2011] EWHC 1473 (Admin) and R (on the application of MWA) v Secretary of State for the Home Department and Another [2011] EWHC 3488 (Admin). The addendum did not involve a fresh examination and did not satisfactorily separate reliable clinical observations from the earlier methodology.

The parties were permitted to make written submissions on any further orders, including costs.

• Upper Tribunal (Immigration and Asylum Chamber): In this final age determination, the Tribunal found that the applicant had been born on 1 January 1992.
• Court of Appeal: Allowed the Council’s appeal from an earlier Upper Tribunal preliminary decision concerning the effect of immigration decisions on the judicial-review proceedings. The citation is not stated in the judgment. It directed that the final hearings be expedited.
• Upper Tribunal (earlier preliminary decision): Had quashed the Council’s decisions because it had not followed its policy or the applicable protocol when maintaining an assessment different from that of the Secretary of State.