AS, R (on the application of) v London Borough of Croydon

In an age-dispute judicial review concerning a local authority’s duties towards children, age is a precedent fact for the court or tribunal to determine. Neither party bears a burden of proof. The tribunal must undertake its own inquisitorial assessment on the balance of probabilities.

Where age cannot be objectively verified, the evidence must be assessed holistically. The credibility of the applicant’s history, physical appearance, behaviour and evidence from those who have observed the applicant may bear upon each other. An untrue history may be relevant but does not by itself establish a false claim as to age.

The applicant, an Afghan national, sought judicial review of Croydon’s decision that his date of birth was 4 September 1995, rather than his claimed date of 4 September 1997. Permission was granted and the proceedings were transferred to the Upper Tribunal.

The Tribunal heard evidence from the applicant, his cousin and two social workers. It considered the applicant’s account, a taskira, two local-authority age assessments, social-services records and the evidence of those who had worked with him. The central issue was the applicant’s age.

1. The Tribunal determined the age issue itself on the balance of probabilities. Applying R (A) v London Borough of Croydon [2009] UKSC 8, age was a precedent fact in the context of the local authority’s statutory responsibilities towards children. Neither party bore the burden of proof.

2. Applying the guidance in R (B) v London Borough of Merton [2003] 4 All ER 280, the Tribunal assessed the evidence as a whole. The applicant’s account, his appearance and behaviour, and the credibility of his history were interrelated matters. It did not treat any isolated inconsistency as determinative.

3. The applicant’s evidence contained material concerns, including vagueness and inconsistencies concerning his family, his cousin’s contact with the family, and the circumstances of his departure from Afghanistan. Taken cumulatively with the cousin’s implausible evidence, those concerns rendered the applicant’s account of age neither credible nor reliable.

4. The taskira was unreliable. Although it recorded an assessed age of 12 in 1388, it stated that this assessment was based on appearance and did not record the asserted date of birth. Its provenance also caused concern. The second age assessment attracted legitimate criticisms, but the Tribunal gave considerable weight to the professional evidence of the two social workers, who had observed the applicant and considered him older than claimed.

5. The Tribunal declared that, on the balance of probabilities, the applicant’s date of birth was 4 September 1995. The applicant was ordered to pay the respondent’s standard-basis costs, subject to assessment of his ability to pay under Access to Justice Act 1999, s.11(1).

This was an application for judicial review. Permission was granted on 12 November 2012 and the proceedings were transferred to the Upper Tribunal. No lower-court judgment citation is stated.