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

In an age-dispute judicial review, the Tribunal must determine the claimant’s age on the balance of probabilities, without placing a burden of proof on either party. It must assess all the evidence holistically. Physical appearance and photographs are inherently unreliable indicators if given excessive weight.

A conclusive trafficking decision by the competent authority does not bind the Tribunal, but may be highly material where it rests on the same or similar evidence. An unreasonable refusal to provide dental x-ray evidence may justify an adverse credibility inference. It does not, however, determine age without regard to the totality of the evidence.

The applicant challenged two age assessments made by the local authority in January and March 2014, each of which assessed her as over 18. The judicial-review application was transferred to the Upper Tribunal by Lang J. The applicant maintained that she had been born on 8 June 1997, had been trafficked from Ethiopia as a child, and had later been brought to the United Kingdom as a domestic worker.

The local authority relied principally on an Ethiopian passport giving a 1986 birth date, photographs, and alleged inconsistencies in the applicant’s account. It also sought an adjournment and dental x-ray evidence. The Tribunal had to determine the applicant’s true date of birth as a fact.

1. The claim succeeded. The Tribunal found, on the balance of probabilities, that the applicant was born on 8 June 1997.

2. There was no burden of proof on either party. The Tribunal had to evaluate the oral and documentary evidence as a whole, while recognising that criminal proceedings concerning alleged traffickers would involve a different standard and rules of evidence.

3. The local authority had placed excessive weight on the 2007 passport photograph. Physical appearance is an unreliable age indicator, as illustrated by R (NA) v London Borough of Croydon [2011] EWHC 2357 (Admin) and AM v Solihull MBC [2012] UKUT 00118 (IAC). The social workers’ approach had also been affected by uncritical reliance on information supplied by FM, including information shown to be false.

4. The Home Office’s conclusive trafficking decision was not binding, consistently with R (PM) v Hertfordshire CC [2010] EWHC 2056 (Admin). It was nevertheless highly material insofar as it rested on the same or similar evidence. The applicant’s detailed and largely consistent account, the evidence concerning trafficking, and the evidence of those who had observed her over time outweighed the adverse material.

5. The applicant’s refusal to undergo a dental x-ray was unreasonable. It supported an inference that she feared evidence indicating an older age. But the Tribunal could not assume from that refusal alone that the passport birth date was correct, because the possible x-ray result and its expert interpretation were unknown.

6. The Tribunal refused the adjournment applications. Proceeding was consistent with the overriding objective in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• Upper Tribunal (Immigration and Asylum Chamber): The applicant judicially reviewed the local authority’s January and March 2014 age assessments. The Tribunal determined her date of birth as 8 June 1997.
• High Court: Lang J transferred the judicial-review application to the Upper Tribunal on 21 February 2014.