Mustafi Rustami, R (on the application of) v Staffordshire County Council

Where a local authority’s age assessment is disputed, the court must determine the individual’s age, and where possible the most likely date of birth, as a question of fact. The assessment must be made fairly, on available evidence and without a predisposition that the person is either an adult or a child.

Appearance alone will rarely resolve age. A court may, however, rely on a careful and fair age-assessment process, contemporaneous records, credible witness evidence and logical inferences from information supplied by the individual. A false account may still contain reliable information capable of supporting a reasoned age calculation.

The applicant sought judicial review of Staffordshire County Council’s refusal to accept that he was a child when he arrived in the United Kingdom as an unaccompanied asylum seeker. The Council’s social workers assessed him as an adult and assigned him a date of birth of 15 October 1995.

Permission had been granted despite concerns about the merits and delay. The applicant’s publicly funded representatives and litigation friend withdrew shortly before the hearing. He did not attend, although the Tribunal was satisfied that he knew of the hearing and proceeded in his absence.

The central issue was whether, on the evidence, the applicant was under 18 on arrival and what his most likely date of birth was.

1. The judicial-review claim was dismissed. The Tribunal found that the applicant was an adult when assessed and that his most likely date of birth was 15 October 1995. He was therefore over 18 on his arrival in the United Kingdom.

2. The Tribunal applied the principle in R (A) v Croydon LBC [2009] UKSC 8 that disputed age is a question of fact for the court. It approached the issue without any predisposition that the applicant was an adult or a child.

3. The social workers’ assessment was fair and Merton-compliant. They had repeatedly identified the chronological difficulty in the applicant’s account, explained its significance, and given him opportunities to correct or clarify it. Their evidence was corroborated by contemporaneous notes and the assessment report.

4. The Tribunal rejected the applicant’s account that his family had died in a bombing in February 2013. The chronology was impossible if he had remained in Iran for 13 months and then made an eight-month journey ending in February 2014. His asserted knowledge of the date was also inconsistent with his failure to provide it when directly questioned.

5. Nevertheless, the Tribunal accepted as reliable his repeated account that he was two years older than his sister and that she would have been 14 about two years before the assessment. That placed him at about 16½ in February 2012 and over 18 by February 2014. Allowing cautiously for the unknown month of birth, the Tribunal accepted the assessed date of birth of 15 October 1995.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to bring judicial review was granted by a Deputy High Court Judge. The claim was transferred from the Administrative Court to the Upper Tribunal, which determined the disputed age and rejected the claim.

• First-tier Tribunal: The applicant’s separate asylum appeal was dismissed. In those proceedings he was treated as an adult and did not challenge the assessed date of birth.