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

In a disputed-age case, the Tribunal must determine for itself, on the balance of probabilities and without a burden of proof on either party, whether the person was a child. It must assess all relevant evidence as a whole.

Authentic identity documents may nevertheless be determinative where they reliably prove the claimed age. Applying [2009] EWCA Civ 1157, the Tribunal should distinguish suspicion that a document is forged from suspicion that an entry in a genuine document is false. An applicant’s unreliable account does not, without more, displace documentary proof of the relevant fact.

The applicant challenged Oxfordshire County Council’s assessment that he was born on 5 April 1995. He contended that his date of birth was 5 April 1998 and that he had therefore been a child when he entered the United Kingdom.

He relied on a biometric passport, birth certificate, personal certificate, school certificate and immunisation record. The passport and birth certificate had been accepted as authentic by the Albanian Embassy, and the passport had been accepted by the Home Office after forgery checks. The respondent did not allege that the documents belonged to another person or were forged, but contended that the underlying birth information might be inaccurate.

The preliminary issue was whether the documentary evidence alone should determine age. The central issue at the substantive hearing was whether, on all the evidence, the applicant had proved his claimed date of birth.

1. Claim succeeded. The Tribunal declared that the applicant’s date of birth was 5 April 1998.

2. The question whether a person is a child is a precedent question of fact for the court. Neither party bears a burden of proof. The Tribunal had to decide the issue on the balance of probabilities by considering all relevant evidence.

3. The Tribunal correctly refused to determine the case summarily on documents alone. Oral evidence could potentially bear on the ultimate factual question, and the Tribunal was required to consider the evidential picture as a whole.

4. After hearing that evidence, the identity documents were sufficient by themselves to prove the claimed age. The respondent accepted that they related to the applicant and did not maintain that they were forged. The Embassy, the Home Office forgery department and the jointly instructed expert found no defect in them. There was no significant evidence that the central Albanian record contained a false date of birth.

5. The applicant’s inconsistent accounts gave reason to doubt his personal reliability. They did not undermine the documentary proof. Applying [2009] EWCA Civ 1157, unreliability on other matters does not displace authentic documents which are conclusive of the fact in issue unless there is a proper basis to doubt either their genuineness or the truth of their entries.

6. In any event, the age-assessment report carried limited weight. It conflicted with contemporaneous notes, failed properly to consider the school and vaccination documents, and appeared to have been approved before the applicant’s minded-to meeting. One assessor accepted that, with the full material, she might have accepted the claimed age or reassessed it.

The parties were given fourteen days to make written submissions on any further orders, including costs.

Judicial review claim issued on 29 October 2013 challenging the local authority’s age assessment. No prior appellate decision is stated in the judgment.