AS, R (on the application of) v Kent County Council

In an age-assessment judicial review, the court must determine age as a fact on the balance of probabilities. There is no legal burden of proof on either party, although the evidence must be assessed sympathetically where an unaccompanied asylum seeker lacks documents.

The benefit of the doubt applies only where, after evaluating the evidence, there remains doubt whether the person is over 18. It requires a finding that the person is under 18 in that event. It does not require selection of the youngest age within a proposed range where a specific date of birth must be determined.

Dental maturity at Demirjian stage H, and mandibular maturity markers including RPV and PLV, were unreliable evidence of chronological age on the evidence before the Tribunal. Photographic comparison with supposedly typical people of known ages had no evidential value.

The applicant, an Afghan unaccompanied asylum seeker, challenged Kent County Council’s assessment that his date of birth was 7 September 1998. He maintained that he was born on 1 January 2000 and was aged 15 when he arrived in the United Kingdom.

During the judicial-review proceedings, the respondent advanced a substantially older assessment, relying on a review by social workers and dental evidence. The Tribunal received evidence from forensic dentistry and medical-statistics experts, social-care witnesses and the applicant. It had to determine the applicant’s age as a jurisdictional fact and address the permissible use of dental evidence, photographs and the benefit of the doubt.

1. The application was dismissed. The Tribunal found, on the balance of probabilities, that the applicant’s date of birth was 7 September 1998. He was therefore 19 at the date of judgment.

2. Age is a question of fact for the court. Neither party bears a legal burden of proving adulthood or childhood. The court must decide the issue on the balance of probabilities, while assessing the evidence sympathetically in light of the usual absence of documents and possible vulnerability of an unaccompanied asylum seeker.

3. The benefit of the doubt is not a mechanism for choosing the lowest date within an assessed age range. It recognises unavoidable uncertainty in age assessment. If, after considering the evidence, the decision-maker remains in doubt whether the person is over 18, the person must be treated as under 18. It has no separate role where the task is to identify a specific age or date of birth, save for the required sympathetic evaluation of evidence.

4. The Tribunal followed the approach in R (on the application of ZM and SK) v The London Borough of Croydon [2016] UKUT 00559 (IAC). Dental maturity at stage H could establish only that dental maturity had been achieved, not when it was achieved. It was not reliable evidence of whether this applicant was under or over 18. RPV and PLV were also unreliable. There were no longitudinal studies demonstrating progression through their stages, the datasets and validation material had serious deficiencies, and there was no adequate Afghan population data.

5. The purported photo album of males said to be typical of particular ages was of no evidential use. Its provenance and selection criteria were unknown, and physical appearance and two-dimensional photographs could not reliably indicate chronological age.

6. The Tribunal rejected the dental evidence and the evidence of the principal reviewing social worker as unreliable. It also found the applicant’s account unreliable. It attached weight to Patrick Shier’s evidence, supported by Ben Holbrook’s evidence, and reached the stated date-of-birth finding.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review application challenging Kent County Council’s age assessment determined. The Tribunal held that the applicant’s date of birth was 7 September 1998.