AA, R (on the application of) v The Secretary of State for the Home Department

In an age-assessment judicial review, the Tribunal must determine the applicant’s age as a fact. The standard is the balance of probabilities, but neither party bears a burden of proof. The process is inquisitorial and must account for the practical difficulty a refugee claimant may have in obtaining identity evidence.

The Tribunal must assess all the evidence as a whole. It may give persuasive weight to carefully explained expert dental evidence, while recognising its limits and any margin of error. Procedural defects and misconceived matters in a social-services age assessment do not prevent the Tribunal from reaching its own factual conclusion.

The applicant challenged the London Borough of Ealing’s decision of 15 February 2013 that he had been born on 2 May 1993 and was therefore an adult. He maintained that he was born on 2 May 1995 and sought declarations that the age assessment and his treatment as an adult were unlawful.

Cranston J granted permission on 6 August 2013 and transferred the judicial-review claim to the Upper Tribunal. The Tribunal heard evidence from the applicant, his uncle, social workers, a tutor, a community worker and a forensic dentist. The central issue was the applicant’s date of birth.

1. The claim failed. The Tribunal found, on the balance of probabilities, that the applicant was born on 2 May 1993.

2. The applicable approach was settled. The Tribunal had to decide age as a question of fact, without placing a burden of proof on either party. Its role was inquisitorial. It also had to recognise that a person claiming refugee status may have sound reasons for lacking the identity documents ordinarily available to a person leaving their country in peaceful circumstances.

3. The respondent’s age-assessment form was materially flawed. Important adverse matters had not been put to the applicant in a manner enabling an early response. Some points relied on were misconceived, including one based on a mistranslation. Those defects did not determine the outcome because the Tribunal assessed the evidence afresh and as a whole.

4. The Tribunal preferred the social worker’s evidence on particular statements attributed to the applicant, including his earlier year of birth and the order of his siblings. It found the applicant an unsatisfactory witness and regarded the supporting documentary and family evidence as unreliable or unhelpful.

5. The dental evidence was the most persuasive evidence. The expert carefully acknowledged that it was not precise and that a younger age could be constructed only through a combination of unlikely events. The condition of the applicant’s teeth and jaw, especially the extent of remodelling after extractions, made his claimed age unlikely. There was no conflicting scientific opinion to undermine that conclusion.

6. Under Tribunal Procedure (Upper Tribunal) Rules 2008, rule 14, the Tribunal made an anonymity order to avoid affecting the applicant’s asylum claim.

• Upper Tribunal (Immigration and Asylum Chamber): Following transfer, determined the judicial-review claim and found that the applicant was born on 2 May 1993.
• High Court: Cranston J granted permission for judicial review on 6 August 2013 and transferred the claim to the Upper Tribunal.