JR/00299/2021

• Status of case: Unreported
• Hearing date: 22 Sep 2021
• Promulgation date: 23 Nov 2021
• Publication date: 9 Feb 2022
• Last updated on: 9 Feb 2022

The decision

In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
JR/229/2021

In the matter of an application for Judicial Review


The Queen on the application of


AS by his litigation friend Maria Houlihan



Applicant

versus





Liverpool City Council



Respondent

ORDER



BEFORE Upper Tribunal Judge McWilliam

HAVING considered all documents lodged and having heard from Mr V Jagadesham of counsel, instructed by GMIAU, for the Applicant and Mr M Paget of counsel, instructed by GLD, for the respondent at a hearing on 21 and 22 September 2021

IT IS ORDERED THAT:

1. The Applicant was born on 1 January 1999.

2. The judicial review application is dismissed.

3. The Applicant shall pay the Respondent’s reasonable costs to be subject to a detailed assessment if not agreed. The Applicant being a person subject to costs protection under s. 26 of the Legal Aid Sentencing and Punishment of Offenders Act 2012.

4. There be a detailed assessment of the Applicant’s publicly funded costs.

5. Permission to appeal is refused for the reasons given. The Applicant seeks permission on the basis of a disagreement with the findings.

6. Accordingly I refuse to grant interim relief.

Signed: Joanna McWilliam

Upper Tribunal Judge McWilliam


Dated: 23 November 2021


The date on which this order was sent is given below


For completion by the Upper Tribunal Immigration and Asylum Chamber

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 23/11/2021

Solicitors:
Ref No.
Home Office Ref:


Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).


IAC-FH-CK-V4

IN THE UPPER TRIBUNAL

RESERVED JUDGMENT GIVEN FOLLOWING HEARING

JR/299/2021


Field House,
Breams Buildings
London
EC4A 1WR


21 and 22 September 2021


The QUEEN
(on the Application of AS
by his Litigation Friend MARIA HOULIHAN)
Applicant


and


LIVERPOOL CITY COUNCIL
Respondent


Before

UPPER TRIBUNAL JUDGE Mcwilliam


‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑

Mr V Jagadesham, Counsel instructed by Greater Manchester Immigration Aid Unit (GMIAU) appeared on behalf of the Applicant.

Mr M Paget, Counsel instructed by Liverpool City Council appeared on behalf of the Respondent.


‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
ON AN APPLICATION FOR JUDICIAL REVIEW

APPROVED JUDGMENT
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
JUDGE mcwilliam: The purpose of the proceedings is to determine the age of AS. AS states that his date of birth is 1 January 2003. The Respondent relies on an age assessment conducted by social workers employed by Liverpool City Council (LCC) to attribute to the Applicant an age of 20+.
2. On the Applicant’s case, he would be aged 18 at the date of the hearing.
3. I have before me the hearing bundle (HB), which comprises 689 pages and includes the final age assessment (conducted on 16 and 23 October 2020) relied on by the Respondent. It also includes two witness statements from the Applicant and a witness statement from the Applicant’s aunt (SB) and two witness statements from the Applicant’s solicitor, Laura Gibbons, the medico-legal report of Dr Dorothy King, a report from Dr Bjälkander (supporting the verification of the Applicant’s birth certificate) and the verified copy of the birth certificate. There is in addition evidence from the Applicant’s friend (AK) and an email from SB.
4. There is an earlier decision of LCC relating to the Applicant’s age of 19 November 2019. There are the notes of the appropriate adult (AA) in attendance at the meetings on 16 and 23 October and 24 November 2020. Furthermore, there is disclosure of LCC Social Services records. There is also within the bundle relevant court and Tribunal orders and related correspondence between the parties including the Appellant’s Statement of Evidence (SEF).
5. The Applicant gave live evidence and was cross-examined at a face-to-face hearing on 21 September 2021. He gave evidence with the assistance of a Krio interpreter. I heard submissions on 22 September when Mr Paget attended in person and Mr Jagadesham made submissions remotely at a hybrid hearing. Both parties relied on skeleton arguments. Mr Paget relied on written submissions supplementing his skeleton argument.
6. The Applicant is an adult even on his own claimed age, however, in the light of the circumstances disclosed in the documents before me identifying vulnerability the Joint Presidential Guidance Note No 2 of 2010 relating to children and vulnerable adults applies (Guidance Note No 2 of 2010).
7. I have read and considered all the documents even if they are not specifically identified in this decision. It is not my role to determine factual issues that may be relevant to the Applicant’s asylum application or to give a view on that application. An asylum claim is, in any event, to be assessed on a different standard of proof (the “real risk” test) and in a context where the burden of proof rests on the asylum applicant.
Chronology
8. The Applicant was detained by Merseyside Police on 28/29 March 2019. There was a single assessment by LCC which was completed on 28 March 2019 by social workers who concluded that AS was older than 18 years. This assessment was not “Merton compliant” (R (B) v Merton LBC [2003] 4 All ER 280). AS said that he was aged 18. He was dispersed to asylum support accommodation for adults.
9. On 19 August 2019 AS’s representatives for his asylum claim (Broudie Jackson Canter) requested that he be referred into the National Referral Mechanism (NRM) to ensure that as a victim of trafficking (VOT) he receives the appropriate support.1 On 2 September 2019, AS’s representatives for his age dispute (GMIAU) made an urgent referral to the Respondent for AS to be taken into local authority care and accommodated under Section 20 of the Children Act 1989.2 The Home Office communicated with LCC, stating that AS is a minor living in unsupported adult accommodation and expressing concerns regarding his mental health and that he is a VOT.
10. On 3 September 2019 there was a referral by LCC for an assessment. A Model Information Sharing Proforma (a single assessment) was completed dated 19 November 2019 by a social worker, Francis Crockett (HB/521)
She concluded that the birth certificate relied on by the Applicant was fake.
11. At some stage the single assessment made by two social workers on 28 March 2019 was reviewed and AS’s claimed date of birth of 1 January 2003 was accepted by LCC on 27 September 2019.
12. Following this, the Applicant’s representatives experienced difficulty progressing AS’s asylum claim as the Home Office had not received confirmation from LCC confirming that he is a minor.
13. LCC state that the Home Office then requested a Merton compliant age assessment. On 16 and 23 October 2020 the Applicant was interviewed by social workers Jonathon Rogers and Louise Humphrey. On 24 November 2020 Jonathon Rogers met again with the Applicant when he was informed that he has been assessed as an adult.
14. Interim relief was granted to the Applicant by Nicol J on 21 December 2020 (HB/5).
15. Permission for judicial review was granted on 26 February 2021 (HB/8).
The Law
16. In undertaking my assessment I have considered the following legal principles. In R (A) v Croydon LBC [2009] UKSC 8 the Supreme Court decided that “there is a right or a wrong answer” to the question whether an individual is or is not a child and that it was for the court to determine it. A person’s age is a fact precedent to a local authority exercising any of its powers under the Children Act 1989. I must therefore determine, in my inquisitorial role and on the balance of probabilities, whether the Applicant is a child. Neither party is required to prove the precedent fact and neither party bears the burden of proof (R (CJ) v Cardiff City Council [2011] EWCA Civ 1590). It is open to me having carried out a holistic assessment of all material evidence to reach a conclusion that is different from both the claimed age and the assessed age.
17. The judgment in R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin), [2003] 4 All ER 280 laid down guidance in judicial review proceedings on appropriate processes to be adopted when a local authority is assessing a young person’s age in borderline cases. Assessments which comply with those guidelines are said to be Merton compliant. The case of VS v The Home Office [2014] EWHC 2483 (QB) contains helpful summary of the Merton guidelines, as modified by subsequent decisions at [78]. I summarise the main points made:-
(1) The purpose of an age assessment is to establish the chronological age of a young person.
(2) The decision makers cannot determine age solely on the basis of the appearance of the applicant, except in clear cases.
(3) Demeanour can be notoriously unreliable and by itself constituted only ‘somewhat fragile material’: NA v LB of Croydon [2009] EWHC 2357 (Admin) per Blake J at [28]. Demeanour will generally need to be viewed together with other things.
(4) There should be
‘no predisposition, divorced from the information and evidence available to the local authority, to assume that an applicant is an adult, or conversely that he is a child’: see Merton per Stanley Burnton J at [37-38].
The decision, therefore, needs to be based on particular facts concerning the particular person.
(5) There is no burden of proof imposed on the applicant to prove his or her age in the course of the assessment: see Merton per Stanley Burnton J at [38], confirmed by R (CJ) v Cardiff CC [2011] EWCA Civ 1590.
(6) Benefit of any doubt is always given to the unaccompanied asylum-seeking child since it is recognised that age assessment is not a scientific process: A and WK v London Borough of Croydon & Others [2009] EWHC 939 (Admin) per Collins J at [40]; see also [21] of A (AB) v Kent County Council [2020] EWHC 109 (Admin).
(7) The two social workers who carry out the age assessment should be properly trained and experienced: A and WK per Collins J at [38].
(8) The applicant should have an appropriate adult, and should be informed of the right to have one, with the purpose of having an appropriate adult also being explained to him or her.
(9) The applicant should be told the purpose of the assessment.
(10) The decision ‘must be based on firm grounds and reasons’ [and] ‘must be fully set out and explained to the applicant’: A and WK per Collins J at [12].
(11) The approach of the assessors must involve trying
‘to establish a rapport with the applicant and any questioning, while recognising the possibility of coaching, should be by means of open-ended and not leading questions’.
It is
‘equally important for the assessors to be aware of the customs and practices and any particular difficulties faced by the applicant in his home society’: A and WK per Collins J at [13].
(12) It is
‘axiomatic that an applicant should be given a fair and proper opportunity, at a stage when a possible adverse decision is no more than provisional, to deal with important points adverse to his age case which may weigh against him’: R (FZ) v Croydon LBC [2011] EWCA Civ 59, [21].
It is not sufficient that the interviewing social workers withdraw to consider their decision, and then return to present the applicant ‘with their conclusions without first giving him the opportunity to deal with the adverse points’.
(13) Assessments devoid of detail and/or reasons for the conclusion are not compliant with Merton guidelines; and the conclusions must be ‘expressed with sufficient detail to explain all the main adverse points which the fuller document showed had influenced the decision’ (FZ, at [22]).”
18. In R (AM) v Solihull Metropolitan Borough Council [2012] UKUT 000118 (IAC) the Vice President of the Upper Tribunal stated, at [15],
“In the present case the evidence is wide-ranging. It may therefore be appropriate to make some general observations about the impact of evidence of various sorts and from various sources in this type of case. First, we think that almost all evidence of physical characteristics is likely to be of very limited value. That is because, as pointed out by Kenneth Parker J in R (R) v Croydon [2011] EWHC 1473 (Admin) there is no clear relationship between chronological age and physical maturity in respect of most measurable aspects of such maturity.”
19. The guidance given in Merton was approved by the Supreme Court in R (A) v London Borough of Croydon [2009] UKSC 8 where the following was stated:
“The decision maker cannot determine age solely on the basis of the appearance of the applicant. In general, the decision maker must seek to elicit the general background of the applicant, including his family circumstances and history, his educational background, and his activities during the previous few years. Ethnic and cultural information may also be important. If there is reason to doubt the applicant’s statement as to his age, the decision maker will have to make an assessment of credibility and he will have to ask questions designed to test his credibility.”
20. The observations in R (AM) were endorsed by the Administrative Court in GE (Eritrea), R (on the application of) v Secretary of State for the Home Department & Anor [2015] EWHC 1406 (Admin) (at [74]). In the earlier decision of NA v LB of Croydon [2009] EWHC 2357 (Admin) Blake J indicated, at [27], that physical appearance alone was a notoriously unreliable basis for assessment of chronological age. This was endorsed in VS (at [78]). In R (AM) the following was also stated:
“There may be value to be obtained from observations of demeanour and interaction with others made over a long period of time by those who have opportunity to observe an individual going about his ordinary life. … It [is] difficult to see that any useful observations of demeanour or social interaction or maturity can be made in the course of a short interview between an individual and a strange adult.”
21. The Upper Tribunal considered that the view of a person who could point to consistent attitudes and a number of supporting instances over a considerable period of time was likely to carry weight that observations made in the artificial surroundings of an interview could not carry. The Tribunal also noted that the evidence of interaction between an age-disputed individual and other young people may well assist in making an age assessment. The approach in R (AM) was endorsed in R (GE) v Secretary of State and Bedford Borough Council [2015] EWHC 1406 (Admin) where the Administrative Court noted that people can behave in a formal interview in a way that is very different from their normal behaviour as a result of nervousness, fear, feeling of intimidation, or because they simply want the experience to end.
22. In MVN v LB Greenwich [2015] EWHC 1942 the Administrative Court observed that the primary focus will be on the credibility of the person’s evidence concerning their age, but it is permissible to have regard to credibility more generally, as long as the primary focus is not forgotten. Any assessment of credibility must be made “in the round” and in light of all relevant evidence, including background country evidence and expert reports (Mibanga v Secretary of State [2005] EWCA Civ 367, Karanakaran v Secretary of State [2000] EWCA Civ 11), and allowance should be given to the fact that asylum seekers may have problems giving coherent accounts of their history: R (N) v Secretary of State [2008] EWHC 1952 (Admin).
23. When assessing the plausibility of the Applicant’s account I additionally remind myself that reliance on inherent improbability may be dangerous or inappropriate where the conduct in question has taken place in a society whose conduct and customs are very different from those in the United Kingdom (HK v Secretary of State [2006] EWCA Civ 1037, at [29]; Araghi v Secretary of State [2006] EWCA Civ 973, at [7]). In approaching the Applicant’s evidence, I take into account the contents of the Joint Presidential Guidance Note No 2 of 2010 and the authority of AM (Afghanistan) v Secretary of State [2017] EWCA Civ 1123 and note inter alia that a minor may encounter greater difficulty understanding questions, and that I must make proper allowance for the possibility. I also in this respect take full account of Dr King’s report.
The Applicant’s evidence
24. The Applicant relies on two witness statements of 10 December 2020(HB/71) and 20 May 2021 (HB/93). His evidence can be summarised. He was born in Kenema in Sierra Leone. He lived with his father and two brothers. His mother, now deceased, lived in a different village. He would stay with his mother for a couple of weeks or months at a time. However, his memories of her are vague.
25. He did not know his date of birth while growing up. He was never told his date of birth. He found out that he was born on 1 January 2003 when his aunt told him. He was in Germany at the time. The Applicant contacted his aunt because he needed proof of his ID. The Applicant’s father was very religious. The Applicant did not have a good relationship with him. He would beat him if he did not attend the mosque.
26. The Applicant has not attended proper school. He attended an Arabic school but that was not every day. However, he can read and write in English and Krio. The Applicant was young when he decided to live with friends. At first, he lived on the street. He then made a friend who allowed him to stay with him but he was not happy and he was asked to leave. He was involved with a group that called itself a gang. They were gay guys who hung out together. They were unable to openly tell people they were gay or else they would have been beaten, killed or imprisoned. The applicant was known as “1 Star” in the group and has a tattoo to support this. His role was to collect money from the group so that they could use it to go to the city and attend clubs to enjoy themselves.
27. The Applicant feels uncomfortable talking about his sexuality and sexual experiences. He was asked about this as part of his age assessment. The social worker who interviewed him asked him a lot of questions and he kept repeating the questions. He felt uncomfortable.
28. The Applicant had his first sexual experience with a girl. He was young at the time. Later he realised he preferred boys. He had sex with a girl who had a baby. The baby was born on 13 February, the day before Valentine’s Day. He does not know the year she was born. She is 5 or 6 years old now. He does not know whether the child is his biological daughter. He had sex with the child’s mother twice. He does not believe that he is the child’s father. However, he was threatened by her family when he said the baby was not his, so he accepted responsibility. The mother’s father was in the military and forced the Applicant’s paternity. He took him to a police station and kept him there for a week. He accepted responsibility in order to be released.
29. The Applicant then ran away to Guinea. He cannot remember how long he stayed there but he was living on the street. He then returned to Sierra Leone. He has been told that he did not mention going to Guinea at this time when he was interviewed by the social workers. He cannot remember exactly what he did or did not say. He does remember that the social worker just kept asking him why he was not taking responsibility for the child. It was all confusing. He is not sure that he explained everything properly.
30. When he returned to Sierra Leone from Guinea an “auntie” told him that a baby had been born. At this stage he still was not willing to accept the child was his but he said it was in order to avoid being beaten up or threatened by her family. He and the child’s mother were referred to by people in the community as “pikin born pikin”, which means a “child-born child” because of their youth. He refers to the child “Z” as his “daughter.”
31. The Applicant is still in contact with Z’s mother but he has had to block her in the past from his social media account. Recently he received a voice message from the mother’s sister calling him wicked for not looking after Z.
32. When he returned to Sierra Leone from Guinea he returned to the gang. In 2014 the Applicant was playing a game of hide and seek with a friend. The friend fell. He was rushed to hospital and died. The Applicant was thought to have killed him. He was arrested and taken to the police station. However, he was able to escape. He left Sierra Leone and travelled to Guinea. He stayed in Guinea for about a month. His friend contacted him and said that everybody knew the Applicant was not responsible for the friend’s death.
33. The Applicant returned to Sierra Leone. His father refused to allow him to stay in the family home although the Applicant was able to sneak into the house and stay there against his father’s will. On 25 December 2015 his father caught him having sex with another boy. They were chased by his father and neighbours. The Applicant escaped. He saw his friend being attacked. He finds this hard to talk about. He was tied up and burnt. The Applicant left Sierra Leone for good.
34. The Applicant went to Kambia, which is a place in Sierra Leone on the border with Guinea. He dressed as a woman and stood on the street asking people for money for food. He saw one of his friends whilst he was there who told him that he should return home and everything would be fine. However, he did not trust this person and he was right not to because he found out that boys from Freetown were looking for him. The Applicant used money that he had taken from the gang to fund his journey across Guinea. He thinks the gang were looking for him because he had taken its money.
35. When he was in Bolobine in Guinea, which is a fishing area, the Applicant saw a friend from Sierra Leone. He was not a member of the gang. He had family in Libya and he said he would contact them and see if he could go and work there. The family member, who was an uncle or a brother, came to Guinea to collect him. The Applicant gave this person all the money that he had taken from the gang (£150).
36. He travelled in a van with other people to Libya. One of the passengers fell off the van. Another passenger banged on the van in order to tell the driver, however, he was stabbed in the hand for trying to save the man who had fallen off. The man was left in the desert. The journey was long and dangerous. They had no water or food.
37. In Libya they were taken to a place where they were given no food. They would have to go to a bridge where they would stand and shout and fight in order to be chosen to work. There were lots of children trying to find work. Arab boys would come every day to pick up workers from the bridge. If you were lucky enough to get chosen, sometimes you would work and would not receive any payment. An Italian man who spoke English came to speak to him. He said he was looking for someone to come and clean houses. He sexually assaulted the Applicant. He told him that he was going to take him to Europe and that he had lots of boys and girls working for him. He then took him to an Arab man who put him in a container with lots of other people. They were treated like slaves. They were taken out of the container to work and have sex. If they refused they would be tied up, tortured or burnt with candle wax. They were given a slice of bread a day to eat.
38. One of the worst things that happened to him was that they pulled out some of his teeth with pliers. This was because the Arab man demanded that they contacted relatives to send money. It was so painful that he thought he was going to die. He still has pain as a result of it.
39. The Applicant left Libya in 2017. One day the Arab man said they were going fishing and the applicant saw an opportunity to run away. He got into a boat. He did not know where it was going and did not care. The people in the boat were crying, shouting and vomiting. He thought he might die. He saw some big bright lights and a big boat and white men came to rescue them and told them that they should not be frightened. They took the babies and pregnant women off the boat first. They were in the big boat for a few days and they rescued other people as well. The boat took them to Lampedusa, Italy.
40. In Italy he was taken to a camp. He then went to a camp in Verona. He was then taken to shared accommodation. It was accommodation for “bambinos” (children). None of the children spoke the same language, so he does not know where they were from or how old they were. He did not speak to the Italian authorities at all about his story. They did not ask him whether he wanted to claim asylum. They took his fingerprints and they asked his age but he told them that he did not know because he did not at that time. He did not have any documents. He was just taken to the bambino camp based on the way he looked. He does not know how long he stayed there until he left and travelled to Germany.
41. He thinks he must have been in Italy for a year or less. He did not get on with the other children in the house in Italy. They were going to remove him from the house because of an incident that was reported by the other children. The Applicant decided to leave. He got on a train to Germany. He was arrested and stripped when he got to Switzerland and he thinks the people searching him were looking for drugs. They were going to send him straight back to Italy, but he managed to get on a train to Germany. There were no checkpoints up to this point. He cannot remember where he arrived but he got on a bus travelling to Munich. He was taken to a hotel in Munich where there were lots of other people.
42. He was interviewed for the first time in Germany. He was asked about his age and how he had arrived there. There was a Krio interpreter, so he could communicate (this is the only time that the applicant has had access to an interpreter throughout his journey). He told the interviewers that he did not know his age but he could contact his auntie. He did not have her details but he knew her telephone number. He tried to contact her on Facebook as well because she did not answer his call. When he managed to speak to her she said she did not use Facebook anymore. He does not remember the date he got in contact with her but the German authorities were asking for ID. He did not have any and he did not want to be deported to Italy.
43. He asked his aunt to speak to his father because he knew that his father would not speak to him or help him. She had a trip to Sierra Leone planned. She told him that she would speak to his father and obtain his birth certificate. He received an email with a copy of the birth certificate. He received the original document in the post in March 2019. He gave the document to the person in charge of the house where he was living. He told him that if he gave it to the police they would send him back to Italy, so the Applicant kept it.
44. He received a letter from the authorities in Germany which said he would have to stay in a prison for a year if he stayed there before his asylum claim would be decided or that he would have to go back to Italy. It was a very stressful situation. The police were looking for him. He decided to leave Germany but he could not find his original birth certificate, so he had to leave without it. However, he still has the photograph which his aunt sent to him by email.
45. While he was in Germany he was given 320 euros monthly. They made a mistake and gave them 645 euros. He used some of this money to travel to Belgium by train. He met some Arabs on the train who could understand English. When he arrived in Belgium there were lots of other migrants at the train station. He made friends with the boys from the train who were talking about coming to the UK. He followed the boys to try and get onto a lorry. On one occasion he was caught by the police. He was taken to a police station and fingerprinted. However, he was then released with some papers. He returned to the train station.
46. They then gave a man some money to let them into a lorry. There were six of them. The lorry took them to the UK. Once they arrived in the UK they walked to a police station. He was in a city called Hull. He did not go into the police station. He went to the train station. He was hungry and wanted some money to buy some food. He met a man who worked there from Nigeria. He helped him get to Peckham in London.
47. He met three people who were speaking Krio in Peckham. They said that he could not stay with them but they might know somebody who could help them. They took him to a man called Abu Bakr. He was the leader of the Sierra Leonean community in that area. He owned an internet café. He allowed him to sleep on the floor. He then introduced him to a lady who said she could help him and that she would do so because she had a son of the same age. He shared a room with the lady’s son.
48. He was in London for about a month before he travelled to Liverpool. He wanted to seek asylum and get proper help. He wanted to be able to claim asylum and stay in the UK. Abu Bakr said he would not help him anymore. A Nigerian man who was working with Abu Bakr in the internet shop gave him £30. He did not feel safe in London. He did not want to sleep on the streets. He wanted to claim asylum and he knew of Liverpool because of the football team.
49. He went to a police station when he arrived in Liverpool. He said he wanted to seek asylum. The police asked him how old he was and he showed them the copy of his birth certificate. In the morning two social workers came to the station. They did not accept his age because of his size and tattoos. They left him in the police station. He was upset and crying.
50. The next day an Immigration Officer came but he said he could not take him because he had a birth certificate which indicated that he was 16 years old. He said the only way that he could leave the station was if he said that he was 18, otherwise he would have to leave him there. He had already been there for days. He was tired, hungry and upset. He told this man that he would agree to being 18. He did not feel that he had a choice. He did not understand why they wanted him to lie about his age in order to get help when he had a document which told them how old he was. He was then taken into a room and asked some questions without an interpreter. He was then left and told that someone would collect him.
51. He was put in a taxi and taken to accommodation. He was handed documents and given keys and food. He stayed at this place for about a month. He was given £35 a week. It was difficult to live on this amount because it is important for him to go to the gym. He is always training. He wants to make himself bigger. He wants to look good and feel strong. Sometimes he would starve himself in order to pay for the gym pass.
52. He was moved to accommodation where he was sharing with adults. He was the smallest amongst them. He had a very small room and he struggled to manage the money that he was given. One day when he was in the gym an older white man asked him why he was training so hard. He asked if he could train with him. He said that if he helped him he would fund his gym pass. This man, AK, visited the Applicant and helped him. He became his friend. He was able to get the Applicant a bike. He helped him to get a place at college so that he could start to learn. He does not know what he would have done without him.
53. Broudie Jackson Canter put the Applicant in contact with GMIAU. He told them that he was 16 and they said that he should not be living in adult accommodation. He was then told he would be moved into accommodation for children. He was moved into accommodation with Activ8. He was then told that an age assessment was going to be carried out. He met with some social workers who asked him questions. They accepted his age and he was told that they would carry on looking after him. His solicitor tried to get confirmation of this from the legal department to ensure that the Home Office were aware that his age had been accepted. However, this was not communicated to the Home Office.
54. The Applicant has had many different social workers since he has been here. The first one was very nice. The second one was the same. There was a third social worker, a man. He told him that he needed ID. However, he then got another social worker who asked him lots of questions. She did not believe anything that he said and he did not feel that she was looking out for him like the others.
55. He was surprised to receive a message that he was going to have a meeting for an age assessment. He thought his age had been sorted. He attended the age assessment. The man asked him lots of questions that he did not understand. He asked confusing questions about things like “land disputes and land in my country” and he had absolutely no idea what he was talking about. Although he could normally understand English quite well he found it very difficult to understand the social worker conducting the age assessment. If an interpreter had been provided and he had been asked questions step by step he may not have been so confused. He is aware that the AA tried to intervene and clarify a couple of things when questions were being asked and he was confused but the social worker did not change the way he asked questions.
56. The social worker came to his house. He looked around his room and took photographs of his shoes. He did not understand why he needed to do this. He was not friendly. He felt intimidated by him. There was a woman there writing notes. The AA was there.
57. At the final meeting the same man asked questions. The social worker went through photographs on social media and he told him that he did not accept his age because of the way he looked in the pictures. He showed him pictures of when he left Libya and when he entered Italy when he was younger but he looked so old because of the very tough time he had had in Libya, which aged him.
58. He takes pride in his appearance. He has had facial hair for some years, he would sometimes leave it or at other times shave it off. It is not unusual. His friends have facial hair too. He has had tattoos for years. He got most of them when he was in a gang. They are not professional tattoos and you do not have to be 18 to get them in Sierra Leone. After he escaped Libya and arrived in Italy he started to focus on his appearance, going to the gym and looking good. His body is all he has and all he can rely on, so it is very important that he looks after it.
59. After the final meeting the social worker told him that he did not believe his age. She told him that he would have to leave now and that a taxi was coming to collect him. She called the Home Office and made him speak to an Immigration Officer on speaker phone. He was crying. He did not know what to do. They were not going to let him collect his belongings. They wanted to take him straight to the Home Office. They said that he could collect his things from Activ8 at a later date.
60. He was very upset AND SC to see the comments from Auntie C in the age assessment. She had taken him to her home. She had helped him and he trusted her. He does not know why she turned on him. He never had an argument with her. There was a time when she accused him of stealing her perfume but then she contacted him later to say sorry because she had found it. She used her bankcard to buy him credit online for his phone. It was never used to pay for the gym. He never had access to any of her information and would never steal from her. He does not know why she had said such things but he does appreciate all the help that she gave him when he first arrived in Liverpool.
61. He does not understand why the tutor said what he had said. One day he was refused entry into college because he did not have his college ID badge. He asked to speak to his teacher. When he took his phone out it was in a case which is the shape of a gun but it was not a real gun. He has not been able to go back. He misses college. He has a lot of friends there. The only things that make him happy are college and the gym.
62. His friend AK continued to help him both emotionally and financially. He buys him things that he needs for the gym. He receives £80 a week for food and £25 for gas and electricity. When the man who visited the house who conducted the age assessment saw all of his trainers he told him that it was not possible for him to be able to buy all of these things. He said that he used the money he gets from the Social Services and sometimes from AK to buy these things and he often buys them from charity shops.
63. He has been let down by a lot of people in his life. He is really worried about being moved away from the people who have helped him and from his friends, particularly AK. He cannot live with his aunt. She lives in America. He does not have family in the UK. The Applicant goes to the gym every day. He has made friends there. It is his only form of socialising.
The Age Assessment
64. The conclusion contained in the age assessment (HB/193 – 295 is as follows:
Professional Opinion
“On March 29th, 2019 [AS] was seen by two different social workers who disputed his claimed age. He was also seen by a Home Office representative who he disclosed being 18 years old to; he now claims he said this with the aim of being released from police custody.
The professionals witnessed his birth certificate and expressed concern regarding its validity based on its condition and most significantly the witness date being only days/weeks prior to him leaving Germany.
Months later he befriended [C], a support worker, alleging mental concerns and independence issues with the aim to support his claimed age.3 She claimed that she attended a solicitor’s appointment with him without prior notice of the significance of this meeting. This again led to a referral to Liverpool City Council resulting in two further social workers concluding him to be 18+ years old, however he remained being supported.
In obtaining a statement from [C], she regretted her actions in supporting [AS] and introducing him to her family and believed him to be 20+ years old. She ignored the concerns raised by her partner and her 20+ year old son by continuing to support [AS]. She also expressed that he was a deceitful and manipulative individual due to him stealing her bankcard to use for purchases and believed he and his associates broke into her property in December 2019.
She also reported contacting his previous carer in London who allegedly informed her that he was also deceitful and ungrateful. When she confronted him with this information, [C] claimed he then chose to contact this person and verbally abuse her.
His tutor from college, who supports over 200 students aged 16 - 18 years old, believed [AS] to be significantly older than his claimed age in judging him to be 20+ years old. Based on comparing his: maturity; physical appearance; high level of confidence; how interacts with students and how they respond to him. Reports of negative behaviour including a stage 4 investigations of aggressive behaviour and recently being dismissed for deliberately intimidating staff members.
Age
[AS] claimed he was 17 years old based on obtaining a birth certificate in Germany 2018/19 following contacting an aunt through social media, due to being deported. Whereas the witness dated on the document recorded 15th February 2019, this being the same time he was in Germany appeared to further question the authenticity of the document.
When asked what age his aunt informed him at the time, within the first meeting he faintly reported 17 but changed this to 16 in the second meeting (making him now 18/19 years old).
Based on his claimed DOB and consistently reporting leaving his homeland on 25/12/15, this would have meant being 12 years old at the time with the ability to securely travel through numerous hostile countries alone appeared questionable.
During both assessments it became apparent [AS] had limited concept of how age is calculated, disclosing it was only in Germany in attempt to prevent deportation he became aware of the significance of detail.
Physical Presentation
[AS] claimed he had not begun to shave until he arrived in the UK, however it was evident from his social media account images he displayed distinguished facial hair since March 2018 (of which he would have claimed to have been 15 years old at the time).
[AS] stated prior to arriving in Libya he was of slim build and attempted to support this by displaying a young picture of himself, however due to lack of evidence of when the photo was taken and requested a copy minutes later he was unable to locate such image. He claimed within a short period of eighteen months under hostile captivity he had gained significantly bone and muscle tissue based on Facebook image 1 (dated 10/04/17) and Instagram image 3 (dated 24/05/17). Both displaying him being confident/someone of significant bone development and someone in their adolescence/early adulthood years compared to a claimed child of 14 years old.
It is that knowledge that such poor conditions would heighten the ageing process on the individual’s face, however such conditions would have had a negative impact with regard to bone development. Based on medical research: bone density changes over time; childhood, adolescence – early adulthood which requires nutrients, minerals and vitamins which would have been in short supply for an African asylum seeker in a hostile country such as Libya.
He displayed numerous tattoos associated with the ‘Red Flag movement’ a notorious gang in his homeland. He reported the spider web had no specific meaning whereas research reports jail time. He disputed this but admitted to being in police custody twice in Sierra Leone.
Friendships
[AS] initially stated liking girls in his homeland but later had feelings for boys. Admitted to sleeping with a female twice and participated in a sexual act with a male between 2014 and Dec 2015 which based birth certificate would have meant him being 11/12 years old at the time.
[AS] stated the female became pregnant and alleged him being the father, resulting in her family placing him in a ‘cell’. He recalled her having a girl, born on the 13th February who was now 5 – 6 years old. This coincided her being born in 2014 and meant him having sexual intercourse the year before of which would have meant him being aged 10/11 years old appeared again difficult to comprehend.
In the second meeting he then disputed being the father but claimed he reluctantly agreed in fear of her family. This contradicted the messages he posted on social media including; him and his family (Instagram image 4) of him, the girl and her mother; calling the girl his daughter and missing her (images 5 and 8); and on image 9 reporting both the girl and boy being his children.
Based on the Sexual Act of Sierra Leone 2012, individuals under the age of 18 are classed as children and therefore not of an age of consent. However, participating in not just one but two sexual acts whilst in his homeland would lead to suggest him being close to if not 18+ years old at the time.
Education/Employment
[AS] reported to different agencies in attending/not attending education in the care of his father, who forced him to attend an Arabic school and formal education until class 5 (unable to recall age/years). This would have meant leaving formal education aged 11 years old but unable to recall when or his age at the time.
In 2015 worked for a friend at a telecentre (charge point for individuals to play on their electronic devices).
Whilst living on the streets in 2014/15 he was part of the ‘Red Flag movement’ and was progressed up the ranks to collecting money from business.
He consistently stated whilst being held captive in Libya, he attended an area of 200+ individuals, with the specific aim to compete in seeking employment of which he was chosen above many to conduct numerous jobs including manual work. Reiterating his ability to fend for himself by stating ‘if you are not strong you cannot fight/be selected’. Disputing the size comparison between his claimed age 12/13 and the other individuals older and more physical than him, appeared again to discredit his claimed age.
Reason for Leaving
[AS] reported conflicting information to different parties as to why he left the family home/country including Abdullah and the rebel forces of which he could not recall due to being a ‘young baby’ at the time, based on research such conflict ended in 2002, over ten years prior to his claimed DOB. In 2014 [AS] claimed he fled to Guinea following the incident involving his friend this would mean he was 11/12/ years old at the time before returning.
Throughout the assessment [AS] was able to provide a detailed account of his experiences and timeframe of events. However, when it came to age, he had limited understanding in how this was calculated which is not uncommon for an African national.
Based on the events he provided/obtained and comparing this with research while also taking into account the statements obtained from professionals who have had interaction with [AS]. The assessing social worker concluded [AS] was not his claimed age but an individual of 20+ years old.”

The evidence of Dr King
65. There is a medico-legal report of Dr Dorothy King (HB/149). She concluded that the Applicant does not meet the criteria for a formal psychiatric diagnosis. However, he presented with clinically significant symptoms of PTSD warranting therapeutic support and attention. The symptoms relate to his traumatic experiences, particularly in Libya. The Applicant is fit to give instructions and to give evidence in court and to be interviewed. However, she makes a number of recommendations regarding measures to put in place to safeguard his wellbeing and risk of retraumatisation. She considered the effect on engagement by the Applicant in the age assessment and she noted the following:-
“122. Distress and emotional arousal at the time of recall impacts memory storage and retrieval; in an age assessment [AS] is therefore likely to have had difficulties with recall of past experiences. This is detailed further below under ‘ability to provide a coherent account’.
123. Relational factors, including anticipated acceptance by others, perceived supportiveness of the environment, and trust and sense of safety in relationships can affect disclosure and ability to engage in interactions with others. In addition, interpersonal trauma can affect sense of safety in relationships (International Society for Traumatic Stress Studies, 2016). Although [AS] reports that he enjoys spending time with others, he describes some difficulties trusting new people which may have impacted on his ability to feel safe in and engage in the age assessment. Within our assessment, we needed to spend time establishing the context and purpose of the assessment prior to starting, as [AS] was initially unsure about engaging in the assessment.
124. [AS] reports beliefs that the world is not a safe place, and he reports being subjected to significant harm and exploitation by others in the past. It is therefore understandable that it may take time for him to be able to trust someone in order to fully engage in an assessment with them.
125. I note in the documentation that has been provided to me there were some concerns around the style of questioning in [AS]’s age assessment. It is notable that research has demonstrated that testimonies of traumatic events differ depending on the interviewer (Brónnimann et al., 2013).
126. [AS] reports that conversations about his past experiences trigger intrusive memories, which leads to heightened distress, fear and threat, and difficulties concentrating. Intrusive memories, by their nature, are past-focussed, sensory and emotionally-laden, meaning that it can be difficult to stay connected with the present and verbalise past and current experiences. I would therefore have expected [AS] to have difficulties engaging with the assessment for these reasons. In these circumstances, people can be perceived to appear ‘evasive or contradictory’ however, clinically, this reaction can be understood as a response to distressing traumatic memories.
127. [AS] would likely have benefitted from reasonable adjustments to account for these difficulties, including a change in the style of questioning, breaking questions down, rephrasing and repeating questions where needed, and scaffolding the structure of the conversation. [AS] may have benefitted from access to an interpreter, particularly when discussing emotional content. [AS] reported that he did not want an interpreter for our assessment, however I noted some difficulties with processing and understanding more emotive parts of the conversation. This necessitated slowing the pace of conversation, having a break and rephrasing questions.
128. It is also important to highlight that when I initially asked [AS] about his mental health at the beginning of the assessment, he reported that he was doing ok, although felt low and lonely at times. It took further, more in-depth questioning over two assessments to understand that [AS] experiences clinically important symptoms of PTSD; specifically re-experiencing symptoms to past traumatic experiences and associated avoidance of reminders, discussed in more detail above. These symptoms were therefore not picked up during his age assessment and could therefore not be considered within this process. In my clinical experience, it is common for people not to volunteer these symptoms on initial questioning, as avoidance is a key characteristic of PTSD and common after traumatic experiences, and that more detailed and specific questions are required to understand the nature of symptoms.”
66. The expert considered the Applicant’s ability to provide a coherent account, concluding that he was likely to describe events in his past in an “over-general” manner with a lack of event-specific details and that there may be particular difficulties or inconsistencies with recalling time-based information such as dates and the sequence of events, identifying specific events within a series of repeated events and with “peripheral” details of events (see paragraph 136 HB/169). The expert concluded at paragraph 138 the following:-
“138. Within my assessment, I noted that [AS] had particular difficulties giving a coherent account of his past experiences, and taking his history required prompts from me to support him to organise his narrative. In my clinical experience this is typical for people who have experienced multiple traumatic events and periods of instability.”
The Applicant’s skeleton argument
67. The Applicant’s case is that there is evidence in support of his credibility. The Respondent has previously accepted AS’s age. This was an issue that was not addressed by the social workers conducting the most recent age assessment. The age assessment relied solely on purported assessments from March and September 2019. However, the March assessment was not Merton compliant and the September assessment was flawed because it was undertaken by someone who stated that they were not trained or qualified to assess age. The Applicant had provided a copy of his birth certificate along with a statement from his paternal aunt and the country expert evidence of Dr Bjälkander which confirmed following her attendance at the Births and Deaths Registry at Wilberforce Street, Freetown, Sierra Leone and the registry, checking their archives:-
“The authorities had provided a copy of the document [i.e. the birth certificate] they had found in their records. That copy had been signed and stamped at the Births and Deaths Registry, with further details added (confirming the verification and providing the volume and page number) by hand with the signature.”
She confirmed that she posted the signed and stamped certificate plus the receipts to the Applicant’s solicitor.
68. The assessed age is 20+, which is well within the margin of error in age assessment, which is at least five years or more. That applies in particular in relation to reliance on physical appearance and demeanour. However, LCC has not given adequate regard to the margin of error despite heavy reliance being placed on the Applicant’s physical appearance. The age assessment is flawed in its approach. It did not adopt the correct approach required for a VOT who has suffered significant physical and sexual abuse. The appropriate adult’s evidence supports that the Applicant was subjected to tough, repetitive, intimidating and incoherent questioning and that the interviewer appeared to become irritated with AS. The Respondent does not retain the recordings of the interviews.
69. AS was not given a fair opportunity to respond to provisional concerns. He was faced with statements and assertions. He was interviewed without an interpreter. The decision about the Applicant’s age was taken by one social worker contrary to the established procedure. There was a failure to make enquiries. There was significant reliance on physical appearance and demeanour and consideration of past photographs. The social worker relied on an article from “Medical News Today” regarding bone density. The third flaw with the assessment is that it is predicated on unfounded assumptions based on the social worker’s own subjective views. AS has addressed factual evidence relied on by the Respondent. The detailed grounds are relied on.
The Respondent’s skeleton argument
70. The Respondent relies on a number of factors that they say undermine the Applicant’s credibility including (i) he looks like an adult, (ii) on his case he fathered a child when he was 10 or 11 years old, (iii) the copy birth certificate of February 2019 was considered. The social workers considered the Applicant has the physical appearance of a 20 year old who is claiming to be aged 17. They considered a wide range of other factors including confusion and inconsistencies in his life history.
71. In the order granting interim relief Nicol J noted the following at paragraph 18:
“That the claimant has admitted having a daughter in Sierra Leone who was born in 2015. She was therefore conceived in about 2014 when, on his account, the claimant was 10 or 11. Although the claimant has said that the admission was made under duress, he accepts having had intercourse with the child’s mother before he left Sierra Leone in 2015. … While sexual intercourse for a boy as young as the claimant said he was, might be unlawful in Sierra Leone, it is not impossible.”
72. Just because something is not physically impossible does not make it more likely than not. It is extremely unlikely. The provenance of the birth certificate is not clear. The certificate may be evidence that in the records there is recorded a birth in 2003 but it does not prove that the record relates to the Applicant.
73. The Applicant admitted to the Home Office that he was 18 on entry to the UK. The Home Office records state that he gave different dates of birth when in Italy and Germany.
74. In Mr Paget’s written submissions of 22 September 2020, which he said were very much supplemental to the skeleton argument, it is asserted that an age assessment is decided by considering physical appearance, supporting documentary evidence, interaction with others and credibility. AS lacked credibility and the weight of evidence is that he is an adult now and he was an adult when he arrived in the UK. He highlights a number of problems with the Applicant’s account which I shall consider when making my findings.
Conclusions
75. For the avoidance of any doubt, before I consider the question to be addressed by me as to the Applicant’s age and date of birth, I confirm that I have done so without any “predisposition” that the Applicant is or is not a child.
76. I stress that I have only made findings after considering all the evidence together and in the round. In addition, the fact that I may not specifically refer to an aspect of evidence in the case, or a particular submission made, should not be taken as an indication that I have not considered it.
77. I remind myself that even if I find that the Applicant is not credible in respect of one element of his account, although it is necessary to exercise caution in considering his evidence as a whole, it does not follow that all aspects of his account are not true. A person may lie for a number of reasons including a misguided but genuine perceived need to do so, in order to support what is an otherwise legitimate claim. Of course conversely, the fact that the Applicant may be giving a true account of some parts of his claim, does not mean that all of it is true.
78. Throughout my consideration of the claim I have been mindful of the difficulties that are likely to be experienced by an individual, whether they are a child or young adult, in providing evidence in support of their account. I have also been mindful of the cultural differences that exist between different countries, and I have been careful not to make any assumptions or to impute what might be termed “Western norms” where it is not appropriate to do so. I have also had very much in mind the fact that there are significant cultural differences between the United Kingdom and Sierra Leone regarding the celebration of birthdays and recording of life events such as dates of birth. In reaching my decision, I have had the opportunity of seeing the Applicant give evidence, with the assistance of an interpreter. I was satisfied that the Applicant and the interpreter understood each other throughout. Nevertheless, I appreciate that where evidence has to be interpreted, whether at a hearing or previously, some confusion may arise, and certain phrases and words may not have exact translations. When considering the evidence of the Applicant in particular, I have also considered the fact that the Applicant may well have been nervous and anxious when giving evidence before the Tribunal, and I have made allowances for that.
79. Dr King’s evidence was not challenged. I find that this Applicant is a vulnerable witness and I consider the evidence before me in the context of Dr King’s evidence. He should be treated in accordance with the guidance AM. He should be treated as a VOT and a young person with mental health problems. I attach weight to the report of Dr King. He has symptoms of PTSD following experiences in Libya. I assess the Applicant’s evidence including what he said during the age assessment in the light of the evidence of Dr King and assess credibility accordingly applying the Guidance Note No 2 of 2010. I was mindful of the evidence of Dr King and we discussed special measures at the start of the hearing. We agreed that it was appropriate for the Applicant to have a break every 30 to 40 minutes. However, the Applicant was given more frequent breaks at his request.
80. At times I had to intervene when the Applicant was cross-examined by Mr Paget because he asked multi-part or tag questions which in the light of Dr King’s evidence was not appropriate. In the light of Dr King’s evidence, it might have been preferable had the LCC disclosed the areas of proposed questioning in advance. The Applicant was, however, given frequent breaks and I explained the proceedings to him in simple terms. He gave his evidence through an interpreter. I asked Mr Jagadesham what measures he considered appropriate at the start of the hearing and adopted those.
81. The Applicant was interviewed by social workers, Jonathan Rogers and Louise Humphrey on 16 October. Mohammed Saleh, an AA and trainee social worker arranged through the Applicant’s solicitors attended as did Anna Geggie, a support worker from Activ8. There are a number of challenges to the approach taken by the social workers conducting the assessment to support that it is not Merton Compliant and therefore flawed. The Applicant relies on the notes of the AA.
82. The Applicant disclosed that he is a VOT during the assessment. It is not the first time that he had disclosed this. However, he had not at that time been referred to the NRM. In respect of the questioning of the Applicant by the social workers, there is support from the AA’s notes of the interviews that questioning was not appropriate taking into account his age and that he is a VOT. There are no recordings of the interview available.
83. The Applicant relies on the Age Assessment Guidance (ADCS), the Home Office’s “Modern Slavery: Statutory Guidance (April 2020) and Trauma – Informed Code of Conduct for All Professionals working with Survivors of Human Trafficking and Slavery (TiCC). It is asserted that the Applicant was subjected to adversarial, intimidating and difficult to follow questions and that no or inadequate consideration was given to him being re-traumatised. His disclosure was not handled sensitively or with any regard to “appropriate safeguarding measures”. The conclusions do not refer to the Applicant being a VOT and the impact of this on the Applicant’s ability to provide an account or indeed whether the trafficking might explain certain features of his account including his journey at a young age. The assessor found it “hard to believe” but did not take into account the relevance of him having been trafficked.
84. The Applicant relies on the AA’s notes (HB/270-274). There is no evidence from the AA or the age assessors. The AA records in his notes that the first interview was “quite tough, hard and sometimes quite intimidating. [AS] would have benefited from a slow pace of or language interpreter”. He thought that the interview was too long. AS was tired, shy and sometimes weeping. The AA did not consider that the social worker considered interviewing the Applicant in a “child friendly way.“
85. In respect of the assessment on 23 October 2020 the AA recorded (HB/273) that the questioning was incoherent, that the assessor jumped from one incident to another. The Applicant was asked about a conversation that the assessor said had been recorded when the Applicant was outside the interview room. The Applicant denied having the conversation. The assessor is described as having “brushed him off as lying, shaking his head in disbelieve (sic)” …. “He was not willing to replay that part of his record and was adamant that [AS] had had that conversation” The assessor’s tone of voice is described as “condescending and patronising.” The AA comments on the questioning of the Applicant about his having fathered a child, posts on social media and the social worker’s attending the Applicant’s flat. There was also reference to the social worker stating that four witnesses could “testify” to the Applicant being over the age of eighteen; however, he stated that he was not at liberty to disclose their identity. Therefore the Applicant was not given the opportunity to comment on evidence relied on by the assessors during the assessment.
86. The Applicant’s account of what had happened to him in Libya is harrowing. All the complaints made by the AA are not supported by the transcript provided. However, the transcript does disclose a lack of sensitivity when asking about the Applicant’s sexuality (HB/206/Q21). Furthermore at one stage when the assessor exclaims disbelief, he said to the Applicant “prove me wrong” to the Applicant. It is not clear what if any consideration was given to the Applicant being a VOT. Furthermore Dr King’s evidence supports that the Applicant has difficulty in providing a coherent account and that difficulties engaging with the assessment and questions about past experiences. I have reservations about the style of questioning adopted by the social workers. It is of concern that he had not been referred to an NRM and that when concluding the assessment there was no reference to his being a VOT and how this played into the overall assessment.
87. The AA did not give evidence and the assessors did not give evidence in response to the AA’s notes and there is no recording of the interviews in existence. Looking at the evidence in the round, it is likely that the Applicant was not given an opportunity to comment on a provisional view. The language used by those interviewing the Applicant as transcribed by the LCC together with the notes of the AA suggest that the social workers had made a decision that the Applicant is an adult before the meeting on 24 November 2020. The Applicant was given a letter dated 4 November 2020 from the LCC stating that he had been deemed to be an adult. Moreover, he was not given the opportunity to respond to the evidence from the “four” witnesses during the assessment because he was unaware of their identity.
88. The assessors relied on an a “single assessment” of the Applicant’s age by two social workers on 29 March 2019. It is described as a “visual assessment” (HB/479) following a visit to the police station where the Applicant was being detained. They concluded that the Applicant was over 18. The assessment was not Merton compliant. The evidential value of this assessment is limited. It is no more than the opinion of two social workers.
89. On 6 September 2019 there was another single assessment made (HB/529). The conclusion drawn by the social worker is that AS is an adult however the social worker states that she is not trained and nor does she have the qualifications to determine the Applicant’s age. My understanding is that this entry relates to the document prepared on 19 November 2019 by Frances Crocket (HB/345) (revisiting the single assessment). The assessment is an opinion of a social worker who accepts that she is not qualified to assess age. This caveat was not noted by the assessors in the age assessment. The evidence of this single assessment is limited. It is no more than the opinion of a social worker. However, taken together with the earlier single assessment it is perhaps of more significance.
90. The assessors attached weight to the Applicant having admitted to the Home Office that he was an adult during his detention at the police station in March 2019. The Applicant accepts that he stated he was an adult. He says that he said this so that he would be released from custody because he is that he was told by an immigration officer that the only way that he could leave the police station was to say that he was an adult(HB/84). He had been in police custody for three days and felt that he had no option but to say he was an adult. Taking into account the Applicant’s experiences and mental health, I have no doubt that spending three days in police custody was stressful and he would be keen to leave the police station. It is unlikely that the Applicant was seen by a corrupt immigration officer; however, it is likely that he was desperate to leave the police station and that he would be prepared to lie about his age, if he thought that it would help him. The Applicant had recently arrived in the United Kingdom and was traumatised. In my view the “confession” is of limited evidential value, taking into account all the evidence.
91. There is no mention in the age assessment of the assessment by the local authority which gave rise to Ms Crocket’s single assessment. In the case notes there is reference to “Permanence completed a transitionary/initial assessment which is now being disputed”. There is the following entry in the case note (HB/523) “following further discussion with SM a referral for age assessment is not required due to credibility of events identified within the single assessment. [AS’s] claimed age accepted by the LA and this is to be communicated by the SW with the home office to progress asylum claim”. At HB/500 there is an entry in the case notes on 12 December 2019 A “fuller assessment” concluded that AS is a minor. This assessment is not disclosed in the HB. It is not mentioned by the assessors. It is problematic that the age assessors did not refer to this or make it clear that they had factored it into their assessment. It is of concern that the assessment has not been disclosed. Mr Jagadesham made much of this. I accept that it is capable of undermining the age assessment. I accept that the existence of an assessment having been made that the Applicant is a minor is a piece of evidence that supports the Applicant’s evidence about his age. I attach some weight to at least one and more than likely two social workers have formed the view that AS is a child.
92. The Applicant’s case is that the assessed age is well within the margin of error. The reference to BF (Eritrea) v SSHD [2019] EWCA Civ 872 AT [65] refers to the margin of error in an initial assessment made on reliance on physical appearance and demeanour. It is an argument which may support the unreliability of the initial assessments made by social workers both for and against the Applicant. However, I am not persuaded that the age assessors in October 2020 relied heavily on the Applicant’s physical appearance. It was one of a number of factors on which the assessors relied. However, I accept that the reliability of the age assessment is limited for the reasons I have already explained.
93. The assessors relied on the evidence of C. She is a support worker who taken in the Applicant and allowed him to live with her and her family. Her evidence forms part of the age assessment (HB/270). She believes that the Applicant is over the age of 20. I attach some weight to this because the Applicant lived with C and she was thus able to observe him over a period of time. However, the reliability of it is lessened because she cannot properly be described as impartial. It appears that they had a falling out and her evidence discloses that she regrets her kindness towards the Applicant and holds a grudge against him.
94. The assessors took into account a pro forma completed by a tutor at the City of Liverpool College (HB/230). He has known the Applicant since September 2019. The tutor concluded that “to me, [AS] appears older than his claimed age of 18. This is because of his physical appearance, confidence and the way he interacts with other students and they look up to him”. He states that the college has over 200 16–18-year-old students in the ESol department and that many of them are vulnerable. He states that AS stood out form the others in many ways. “He was physically bigger, displayed a high level of confidence and was very street wise - although this may be as a result of his past.” I attach some weight to the opinion of a college tutor. He has experience in working with young people and is likely to have had the opportunity to observe the Applicant over a period of time.
95. There is a report form Active8 (the Applicant’s accommodation support (HB/233)). They have known the Applicant since September 2019 and see him regularly. The Applicant’s build is described. He is said to manage well independently, and he is described as confident and more mature than his peers. It is felt by support workers that the Applicant is older “in physic, behaviour and emotion compared to other 18-year-olds in the services.” I attach some weight to the opinion of Active8. Again, they have observed the Applicant over a period of time.
96. The Applicant has provided a letter from a friend, ‘AK’ (HB/191). AK is Reader in Health Services Research at the Medial School at Edge Hill University and Research Fellow at the Alder Hey NHS Hospital. He met the Applicant in 2019 in the local gym. He states that when he met him the Applicant was “clearly underage, still exhibiting childlike behaviour in social situations with a strong focus on imminent satisfaction of contingent desires and wishes. As he developed over the months, he is still showing signs of immaturity which leads me to strongly believe he is still underage”. AK comments on the Applicant’s social media activity and states that “he presents himself in his social medical profile physically as a fully developed adult, I am of the view that his at times immature behaviour is indicative of imminent yet not fully reached adulthood.”
97. AK’s evidence does not disclose what, if any, expertise AK has in assessing age. It does not indicate how often he sees the Applicant. I note that the Applicant’s evidence is that AK gives him money; however, this is not supported by AK. While they are friends, the nature of the relationship is not entirely clear and it is obvious that AK is older than the Applicant claims to be. I attach some weight to his evidence. However, evidence from contemporaries of the Applicant would have been more helpful. His evidence is that he has friends at college and in the gym; however, there was no evidence from someone of the Appellant’s claimed age which would have been more helpful to me in assessing age.
98. The assessors considered the birth certificate (HB/534) produced by the Applicant. Social workers had formed the view that it was not reliable because the witness date is weeks before the Applicant left Germany and/or the certificate is handwritten on yellow paper.
99. I have taken into account the evidence of Dr Bajalkander (HB/184) which supports the verification of the document. Her evidence is not challenged. I must consider the evidence in the round. Notwithstanding there may be a genuine entry in the register in Sierra Leone, relating to someone with the Applicant’s name (also naming his parents), I must consider this evidence in the round.
100. I have read SB’s statement 9 December 2020 (HB/64) and her email (HB/ 192) which predates the statement. She is the Applicant’s paternal aunt. Her evidence is that she was living in Sierra Leone when the Applicant was born but then moved to the US in 2009. She was contacted by the Applicant when he was in Germany. He always contacts her through WhatsApp. He tried to contact her through Facebook, but she does not use it. He told her that the authorities in Germany wanted ID. She had arranged a trip to Sierra Leone and agreed to help obtain his birth certificate. She knew that he would not be able to obtain this from his father because the Applicant has a poor relationship with him. In Sierra Leone she was able to persuade the Applicant’s father to obtain a copy of the birth certificate, the original having been damaged by floods. She posted and emailed the document to the Applicant.
101. The Applicant’s account about how he came into possession of the birth certificate is relatively consistent. (I do not attach significance to the Applicant having given inconsistent dates when he either contacted the aunt or when she sent the documents or to the mention of an uncle rather than an aunt).
102. I did not have the benefit of hearing SB give evidence. The verification of the document weighs in the Applicant’s favour; however, it is not determinative of the Applicant’s age. It’s reliability is reduced when considering it in the round, particularly the social media evidence which I will go on to discuss.
103. I also attach weight to image 11 (HB 267) which is a post that the Applicant put on social media in June 2019 which strongly suggests that the Applicant has a positive relationship with his father which contradicts the evidence of the Applicant in a number of respects and the evidence of SB (and therefore the reliability of the birth certificate). He was asked about this during the age assessment. He said that he had written a post “Dad you are my king” next to picture of his father and very affectionate personal message because he wanted his father to “forgive” him. While there are problems with the assessment, the Applicant in his witness statements or evidence before me has not stated that the answers he gave in respect of this post are not accurate. His witness statements are silent on the matter.
104. The assessors relied on the Applicant’s social media posts which showed that he had facial hair since March 2018 – when he claimed to be aged 15. The assessors attached weight to the Applicant claiming to be of slim build before he went to Libya. During his interview he attempted to show the assessors a photograph of him at a young age but there was no evidence indicating when the picture was taken. He was then unable to find the picture and has not produced it in these proceedings. He said that when in Libya he had gained bone and muscle tissue. Mr Paget distinguished between physical characteristics and physical appearance and that what was approved in both Merton and AM is that where there has been no material growth in height and other aspects of physical appearance over a long period this is an important factor.
105. I understand that the assessor’s point was that it was not credible that the Applicant would have increased bone/muscle density while enduring hardship in Libya. The assessors rely on what AS told them; namely that he was slim prior to arriving in Libya. The inference is that he grew significantly while in Libya. The point taken by the assessors is that this is not credible because of the hardship endured by the Applicant.
106. Photographic evidence alone is not reliable evidence on which to draw conclusions about a person’s age. It is of limited value. The evidence of the Applicant’s appearance does not assist me. I am also not prepared to draw inferences relating to diet and growth during teenage years. The Applicant is very muscular. He appears from the photographs to have been muscular since at least 2017. This may be as a result of regular attendance at the gym. Whatever the reason, physical appearance and demeanour must be treated with caution. I am not assisted by the inferences drawn by the assessors about the Applicant’s physical appearance or demeanour.
107. I agree with Nicol J who when granting the Applicant interim relief stated that “while sexual intercourse for a boy as young as the Claimant says he was might be unlawful in Sierra Leone, it is not impossible.” The age at which the Applicant claimed to have had sex with Z’s mother (aged 10/11) is not determinative of his age. However, this together with other features of the Applicant’s history including that he has tattoos, that he was a member of a gang, that he spent time in prison in Sierra Leone support that he is older than he claims. He has life experiences which do not support his claimed age even allowing for cultural differences. None of these features of his life are determinative of the Applicant’s age but together they support that the Applicant is not the age that he claims to be.
108. The assessors stated that he denied paternity in the second interview having accepted it in the first. However, from the transcript of the first interview, I can see that when questioned the Applicant said (HB/207) when asked whether he was the father, “yes, that’s what they say”. I do not accept doubt as to the child’s paternity was an issue raised by the Applicant for the first time in the second interview; however, there is strong evidence of media posts that he is the child’s father to which I attach significant weight.
109. The post on social media (HB/263) namely image 8 shows a picture of a child posted on 4 September 2017. The comment posted is “my daughter”. The same child is pictured with another child (image 9). The Applicant has commented “My children”.
110. There are other posts in June 2017 (HB/262) showing a child, the Applicant and a female (image 4) under which someone using the Applicant’s account has posted “Me and my family”. There is a picture of a little girl (image 5) and another of the Applicant with a suitcase under which someone using the Applicant’s account has posted “ Mr handsome and Miss beauty, I miss you honey, Daddy miss you so much”.
111. There is a picture of a little girl and a male (image 6). Across the picture are the words “ Happy Father’s Day, I love you dad.”
112. The evidence that the Applicant has fathered at least one child is compelling. The Applicant has not given a consistent or credible explanation about why these pictures have been posted and why someone other than him would post comments using his account which support that he is the father of the child shown in the picture.
113. The Applicant told the assessors that he put the comments because he had to please “the uncle” (Z’s mother’s father) or else he would put him in prison. He said that he had effectively assumed responsibility for the child under duress. He also said that the child’s mother was responsible for image 6 but that he has now blocked her (there is no evidence that he has blocked the child’s mother from contacting him on social media). In oral evidence the Applicant raised for the first time that a “cousin” in Spain was responsible for the posting of comments. I do not accept that the Applicant has given a coherent account of the provenance of the posts.
114. While I have taken into account the circumstances of the assessment and Dr King’s evidence which would support the Applicant not being able to give a coherent account during the assessment, the Applicant does not seek to distance himself from what he said in his interview about the media posts in his witness statements. His witness statements do not seek to clarify his evidence about this, despite the significance of the posts and the weight that the assessors attached to them. It is not suggested that the Applicant cannot give instructions to his solicitors in a relatively stress free environment. The account the Applicant gave at the hearing about the posts further muddies the waters.
115. The posts support that the Applicant has a child in Sierra Leone which is a strong indicator that he is older than he says. The posts support that he has accepted responsibility for the child. It is by no means determinative of the issue of the Applicant’s age; however, the Applicant’s evidence concerning the media posts is not credible and undermines his case.
116. I have considered the Applicant’s evidence in the light of Dr King’s evidence. I find that the Applicant has a poor understanding of how age is calculated. I accept that he did not know his age until it became necessary for him to produce ID when he was in Germany. However, I do not accept that the birth certificate which he received from his aunt, SB, relates to him. Having considered the evidence holistically, I do not accept that the Applicant is the age that he claims to be.
117. The Applicant does not in his witness statements give an account that differs in any meaningful way to the account that he gave during the assessment regarding the issue of his age. While he says that he is not sure that he explained everything, the Applicant does not seek to clarify, add to or amend anything of significance that he said relating to his age.
118. The main problem with the Applicant’s evidence is that relating to the social media posts. In respect of what he said to the assessors, it is not his case that the interview has been wrongly transcribed, or he gave a wrong answer because of the way he was questioned or because of psychological problems arising from treatment in Libya. He does not comment at all on the media posts in his witness statements. At the hearing he gave a different explanation about the posts to that he gave the assessors. While I accept that the birth certificate is evidence capable of supporting the Applicant’s case, for all of the above reasons, having considered all the evidence holistically in the round, I conclude that the Applicant is not the age that he says he is.
119. There is evidence throughout the documents of behavioural issues and alleged criminal conduct. Social workers have commented on the Applicant owning property, the implication being that he may have stolen items. I do not find any of this evidence helpful when assessing the Applicant’s age. I have no doubt that the Applicant is a vulnerable person. The evidence supports behavioural issues possibly amounting to criminal behaviour, however, this does not assist me in assessing his age.
120. There are some problems with the age assessment. I accept some of the criticisms made by the Applicant are well-founded. For the reasons identified by Mr Jagadesham, some of which I have referred to above, I attach limited weight to the overall assessment. However, the age assessment is not determinative of the issue of the Applicant’s age. I do not find that the Applicant has given credible evidence when assessing the evidence in the round.
SUMMARY OF DECISION
121. The most likely age of the Applicant as at the date of his arrival in the UK, was 20. I find that the Appellant was born on 01 January 1999.


UTJ McWilliam

Joanna McWilliam

23 November 2021