R (L) v Westminster City Council & Anor

In an age-assessment judicial review, neither party bears a burden of proof. The Tribunal must determine the applicant’s age on the balance of probabilities after evaluating all the evidence.

An unresolved possibility that the applicant has been trafficked does not necessarily require an adjournment. The possible effect of any later trafficking investigation on the evidence must be assessed realistically. Credibility remains relevant but is not decisive. Particular weight may properly be given to the evidence of experienced professionals who have observed the person over time, especially where the Tribunal has not seen the applicant give evidence.

The applicant challenged Westminster City Council’s assessment that he was over 20 and had been born on 27 December 1992. He maintained that he was a child, although he did not give oral evidence or provide a witness statement.

Before the substantive hearing, the applicant sought an adjournment so that possible trafficking concerns could be investigated and any recovery and reflection period completed. The Tribunal refused that application under the Tribunal Procedure (Upper Tribunal) Rules 2008.

The central issue was the applicant’s date of birth. The Tribunal considered the local authority’s assessment, inconsistencies in the applicant’s accounts, enquiries concerning his claimed French identity, and evidence from social-care and trafficking professionals who had observed him.

1. The claim succeeded. The Tribunal held, on the balance of probabilities, that the applicant was born on 27 December 1995. He was therefore a child at the date of Westminster’s decision and was not born on either the claimed date of 27 December 1996 or the date assigned by the council.

2. There was no burden of proof on either party. The Tribunal’s task was to make its own assessment of age from the evidence as a whole. The absence of oral evidence from the applicant created difficulties but did not make the task impossible. It was not necessary to adjourn merely because trafficking concerns had been referred for consideration. Trafficking and age are not necessarily linked, and any subsequent account would still require assessment alongside the existing evidence.

3. The applicant’s credibility was damaged. There was no French record matching his claimed identity and date of birth, and his accounts of movements between France and Algeria were inconsistent. Those matters could not simply be explained away by the possibility of trafficking. Other matters relied on by the council, including the claimed vocational course and medication, were neutral or speculative.

4. Greater weight was given to the experienced evidence of Mr Coulson and Ms Francis, who had observed the applicant regularly among young people of comparable age. Their evidence placed him broadly in the 16-to-18 range. Mr Shamuyarira’s view was relevant but carried less weight because his contact was brief.

5. The Tribunal had material concerns about the council’s assessment. Mr Brown’s earlier estimate had been 17 to 18; some professional views had been inaccurately summarised as supporting adulthood; and material notes and a trafficking matrix were missing. Balancing those matters with the applicant’s lack of credibility, the Tribunal fixed the date of birth at 27 December 1995.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of Westminster City Council’s age-assessment decision of 14 February 2013. The Tribunal rejected the council’s assessed date of birth and determined that the applicant was born on 27 December 1995.