JR/05305/2018
- Case title:
- Appellant name:
- Status of case: Unreported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country:
- Judges:
The decision
IN THE UPPER TRIBUNAL
JR/5305/2018
Field House,
Breams Buildings
London
EC4A 1WR
14-16 January 2019
Before
UPPER TRIBUNAL JUDGE GLEESON
Between
K A A
[ANONYMITY ORDER MADE]
Applicant
and
THE LONDON BOROUGH OF HARROW
Respondent
- - - - - - - -
Mr Phil Haywood of Counsel, instructed by Bhatia Best Solicitors, appeared on behalf of
the Applicant.
Ms Kuljit Bhogal of Counsel appeared on behalf of the Respondent.
- - - - - - - - - - - - -
APPROVED JUDGMENT
- - - - - - - - - - - - -
JUDGE GLEESON : The applicant has been granted permission for judicial review of the respondent's age assessment decision on 28 March 2018 assessing his date of birth as 25 December 1996.
2. The applicant asserts that his date of birth is 25 December 2000 and that he was a minor until 25 December 2018.
3. This application was lodged in the Administrative Court on 25 April 2018. On 13 June 2018, Pushpinder Saini QC, sitting as a Deputy High Court Judge in the Administrative Court, transferred the application to the Upper Tribunal pursuant to section 19 of the Tribunals Courts and Enforcement Act 2007. Accordingly, the Upper Tribunal has jurisdiction to determine the applicant's age as a question of fact, having regard to the credibility of the applicant's account and all the evidence before it.
4. The applicant is now an adult, both on his own asserted date of birth (25.12.2000) and on that assigned to him by the respondent (25.12.1996). However, his date of birth remains relevant and material, as under the Children Act 1989 the respondent's duties to former 'looked after' children do not end at the age of majority: a previously 'looked after' child remains entitled to advice and assistance from the respondent until the age of 21, pursuant to section 24(1B) of the Act.
5. The respondent has further obligations under sections 23A-23C and Schedule 2 of that Act, to prepare and maintain a Pathway Plan and appoint a personal advisor for former looked after children under the 'leaving care' regime applicable up to the age of 25. The applicant as a care leaver might also be entitled to benefits under the Housing Act 1996 by virtue of the Homelessness (Priority Need for Accommodation) Order 2002. On 25 April 2018, Mr Justice Butcher made an interim order that the respondent provide support and accommodation for the applicant as a child, pending the Upper Tribunal's decision on this application or further order.
6. The applicant was assisted from 18 April 2018 to 29 November 2018 by a litigation next friend, Francesco Jeff of the Refugee Council. By an order dated 29 November 2018, Mr Francesco ceased to be the applicant's litigation next friend. The applicant therefore now conducts these proceedings in his own right, as he is no longer a minor.
Evidence before the Upper Tribunal
7. I heard oral evidence from the applicant, and from three witnesses on his behalf: his friends Mr Gailan [H] and Mr Adib [S], and Ms Anna Branthwaite, a social worker. The applicant also relies on a medical report from Dr Brock Chisholm, a psychologist, who was not called to give evidence. There is a witness statement from Mr Martin Bridger, then a solicitor with Bhatia Best, who represent the applicant. He explained that several of Bhatia Best's letters about the applicant erroneously gave a date of birth for the applicant of 20 December 2000, not 25 December 2000, but that this was simply a typographical error, never having formed part of the applicant's instructions to his solicitors. For the respondent, Ms Bhogal accepted that nothing turned on that difference. Mr Bridger was not called.
8. For the respondent, I heard oral evidence from Mr Rashid Kato, a social worker who had responsibility for the applicant from November 2017, and have before me witness statements from Ms Mary Brown, Ms Yvonne Neequaye and Mr Jason Clarke (who conducted the withdrawn February 2018 age assessment) and from Mr Ian Poole and Mr Gerald Buckley, who conducted the March 2018 age assessment against which this challenge is brought.
9. In addition, I have had regard to the substantial bundles of contemporaneous medical and social work records, the parties' written and oral arguments, and the decided cases in the authorities bundle to which I was referred during the hearing. In considering the applicant's evidence in this judgment, I have excluded the evidence given through the first interpreter at the hearing on 14 January 2018, as I discharged that interpreter and the applicant's evidence began again on 15 January 2018.
10. I have also excluded from negative consideration the applicant's evidence about his journey to the United Kingdom; whilst there were serious concerns about his reticence in relation to that journey, this is not an asylum appeal and it is the credibility of the applicant's account of his age which is relevant today.
11. Both parties are aware of the evidence, both written and oral, that was considered by the Tribunal. This evidence is, in any event, a matter of record. I shall only refer to this evidence so far as it is necessary for me lawfully to determine the applicant's age, including the credibility of his account thereof. The parties' submissions are also a matter of record and I will refer only to those matters which are relevant to my analysis.
12. The legislative framework within which I reach my decision is well established and there is no disagreement between the parties on this. The disagreement arises on the credibility of and the weight to be given to various elements of the evidence. My primary focus is age, not the credibility of the account in general. There is no burden of proof and no formal benefit of the doubt principle.
13. I have had regard to all of the evidence and submissions before me and I have particularly taken account of the fact that whatever his age, this applicant is young.
Procedural matters
14. On 21 November 2018, the applicant's solicitors Bhatia Best wrote to the Tribunal, seeking permission to adduce a supplementary witness statement from the applicant, to be served 2 days before the advocates' meeting. Leave was not given, nor was any updated witness statement disclosed before the advocates' meeting. On the morning of the hearing on 14 January 2019, Mr Haywood applied to admit a bundle of supplementary evidence including previously undisclosed witness statements, all bearing January 2019 dates and a quantity of further documents. The witness statements were from Ms Katerina Zurkova, a trainee solicitor with Bhatia Best, who has conduct of this application; an updated witness statement from the applicant himself; and witness statements from the applicant's friends Mr Gailan [H] and Mr Adib [S].
15. For the respondent, Ms Bhogal objected to the admission of these documents without advance notice, in particular to that of Ms Zurkova, which concerned conversations in December 2018 with the respondent's witness Ms Mary Brown, who was on annual leave and could not be reached for instructions thereon. Ms Brown was unavailable for the hearing but her evidence was uncontentious (although the interpretation to be placed thereon was the subject of submissions by both parties).
16. After hearing submissions from both parties, I admitted the applicant's updated witness statement and those of Mr [H] and Mr [S], who were called as witnesses. I also admitted the applicant's supplementary bundle, with the exception of the witness statement of Ms Zurkova, which merely produces the emails from Ms Brown in the supplementary bundle. I have a properly disclosed witness statement from Ms Brown, supported by contemporaneous emails in the supplementary bundle and I have had regard to those. Mr Haywood and Ms Bhogal agreed that Ms Brown's view of the applicant was set out in those emails and the witness statement and that they could deal with her evidence in submissions.
Interpreter issues
17. The Upper Tribunal provided a Kurdish Sorani interpreter for the hearing. The applicant's solicitors had also instructed an interpreter who took notes and spoke quietly to Ms Zurkova during the morning of the first day, presumably letting her know of any concerns he had about the Court interpreter. Neither Ms Zurkova nor Mr Haywood raised any concerns with me, but just before the short adjournment on the first day, the interpreter said that he was unwilling to continue as he was being distracted by continual muttering between the applicant's solicitor and interpreter.
18. In fact, there had been a number of moments when I had been concerned by the interpretation of the applicant's evidence during the first morning of the hearing: he often seemed to answer a different question from that which Counsel or the Judge had asked, and translated responses were sometimes noticeably shorter or longer in English than they were in Sorani. I adjourned the question of the adequacy of the interpreter for consideration over the short adjournment, and when we resumed at 2 p.m., I discussed the interpretation issue with the parties. Ms Bhogal also had concerns but was worried that if the hearing restarted the next day, the applicant would have had a 'dress rehearsal' of his evidence. I indicated that I was not satisfied that the interpretation was of the standard required and I discharged the Court interpreter.
19. Ms Bhogal also mentioned that the applicant and his main witness, Mr [H], had been seen speaking and lunching together and was concerned that they might discuss their evidence overnight. I warned all the witnesses: given the discrepancies in the evidence they gave, if there was any attempt at concert in their evidence, it was not successful.
Background
20. The applicant is an Iraqi citizen of Kurdish ethnicity, from Tuz Khurmatu. He claims to be an only child. The applicant's knowledge of his age and date of birth is said to come from what his mother told him in Iraq in 2013 or 2014 while she was cooking in the kitchen. He says he was at home because he had ceased attending school after only 4 years of primary education.
21. On 16 October 2017, when the applicant on his own account was almost 17 years old, fierce clashes erupted in his home town of Tuz Khurmatu between government forces and the Peshmerga. Tens of thousands of people lost their homes through indiscriminate burning, looting and demolition of their properties, mainly in the Kurdish areas. The respondent does not dispute that this event, which is well documented in reliable international sources, occurred in Tuz Khurmatu on that date.
22. The applicant and his family fled the fighting in Tuz Khurmatu on 16 October 2017. He became separated from his parents during their escape and has not seen nor heard from them since. The applicant has sought to trace his parents through the Red Cross but they had a long waiting list for consideration of tracing: the Red Cross had only just begun to seek to trace his family members when this application was heard.
23. The applicant left Iraq and has not returned there since. After leaving Tuz Khurmatu, the applicant's account is that he then travelled alone across Europe for almost a month, mainly in the back of lorries, and cannot or will not give details of the countries through which he passed, nor any reliable details of his journey. I accept that there may be reasons for his reluctance, connected with the agent or agents who arranged the journey, and I remind myself that this is not the asylum appeal. I do not treat the applicant's reticence about the journey as relevant to whether he has given a credible account of his age.
24. The Birkenhead interview. The applicant arrived in the United Kingdom when he reached Belfast. He was helped to take a ferry from Belfast to Liverpool, was discovered on arrival, on 13 November 2017 and apprehended. On his asserted date of birth, his 17th birthday was just over a month away. The applicant accepts that when he was apprehended and interviewed, he told the authorities that he was both 17 and 16 years old on different occasions.
25. The applicant claimed asylum and had a screening interview at Birkenhead, but without an appropriate adult present, as his asserted age required. It is not disputed that the Birkenhead interview was not Merton-compliant. The respondent has treated it, not as an age assessment, but as a social work assessment only. The applicant was then taken into the care of the respondent and placed in foster care until a full lawful age assessment could be completed.
26. The February 2018 age assessment. There followed an abortive age assessment made between December 2017 and February 2018: Ms Neequaye and Mr Clarke interviewed the applicant on 15 and 19 December 2017, but both interviews had to be stopped because the applicant was experiencing cold and a numb sensation in his legs. He was taken to accident and emergency, who referred the problem back to his general medical practitioner. On 15 January 2018, Ms Neequaye and Mr Clarke interviewed the applicant again, concluding their assessment on 8 February 2018.
27. The outcome of the February 2018 assessment was that the respondent concluded that the applicant was an adult, and he was dispersed to adult Home Office accommodation in Derby on 14 February 2014.
28. The applicant's solicitors challenged the February 2018 age assessment and following that challenge, the respondent withdrew the February 2018 age assessment and agreed to remake the assessment afresh: the respondent then took the applicant back into its care until that fresh decision could be made. I place no weight on the February 2018 age assessment or the evidence the applicant gave in those interviews.
29. The March 2018 age assessment. Further age assessment interviews were held by Mr Poole and Mr Buckley on 15, 22 and 28 March 2018, leading to the decision under challenge. On 28 March 2018, they informed the applicant of their concerns about the credibility of his account and in their decision, maintained the earlier finding that the applicant's correct date of birth was 25 December 1996 and that he was then considered to be 21 years old.
30. The respondent withdrew accommodation and support. The applicant was placed by the Home Office in shared adult accommodation with adult asylum seekers not known to him. He no longer received the support which his representatives claim is appropriate to his age (then) of 17 years old.
31. In reaching their assessment decision, Mr Poole and Mr Buckley had express regard to the contents of both the Birkenhead interview without an appropriate adult, and the withdrawn February 2018 age assessment. Ms Bhogal accepts that in consequence, the March 2018 age assessment is also not Merton-compliant.
32. The asylum claim. The applicant's asylum claim remains pending: after treating it as withdrawn in May 2018 for non-attendance at his asylum interview, the Secretary of State for the Home Department in January 2019 accepted that the appointment letter had not been served at the correct address (the Home Office sent it to the applicant's NASS address but he had been returned to the care of the respondent). The asylum claim has been reinstated and an interview date is to be sent out shortly.
Grounds for review
33. The applicant's grounds for review challenge the March 2018 age assessment decision, both on the basis that it was unlawfully made because the assessors took into account the Birkenhead interview and the withdrawn February 2018 assessment, and because he says that the age assigned to him is factually incorrect. The applicant contends that in consequence, very little weight can be placed on this latest age assessment, and that greater weight should be placed on his own evidence.
34. The applicant seeks declarations by the Upper Tribunal confirming his claimed age, or such other age as the Tribunal may determine, and quashing the March 2018 age assessment, together with his costs and such other orders or directions as the Tribunal may think fit.
35. The applicant gave oral evidence, with the assistance of a Kurdish Sorani interpreter, adopting his three witness statements of 2 October 2018, 19 October 2018, and 10 January 2019, as well as relying on the 4 June 2018 witness statement in his asylum claim. Each of the applicant's witness statements was certified as having been translated from English to Kurdish. The applicant told the Tribunal that he could not read English so had been unable to read his statements, but had signed and agreed to them after they were read over to him in Kurdish Sorani.
36. There was no challenge to the professionalism of the second interpreter who assisted the Upper Tribunal on Tuesday 15 January 2019. The matters put to the applicant in his abortive evidence on Monday 14 January 2019 were revisited with the fresh interpreter, so the applicant had what Ms Bhogal described as a 'dress rehearsal' for his evidence on the second day and every opportunity, therefore, to give a coherent, truthful and consistent account on 15 January when he gave the evidence again.
37. For the reasons I now explain, I did not find the applicant to be a truthful or credible witness, either generally or on the core issue of his age. His evidence, and that of the other witnesses, is a matter of record and will not be set out in extenso in this judgment.
Mr Haywood's submissions
38. For the applicant, Mr Haywood argued that the Upper Tribunal's approach to his physical appearance should follow the guidance of UTIAC Vice-President Ockelton in R on the application of AM v Solihull Metropolitan Borough Council [2012] UKUT00118 (IAC) at [15]-[16]). Mr Haywood argued that the respondent had not shown sound reasons for disbelieving the applicant's claimed age on the basis of his demeanour, which is a notoriously unreliable means of assessing age, particularly during a short interview or interviews with a social worker who does not know the applicant on a daily basis.
39. Mr Haywood argued that the disputed age assessment in March 2018 took no account of the trauma of the applicant's terrifying journey to the United Kingdom, the distressing loss of contact with his parents, nor the effect of those factors on his ability to give a clear and consistent account of his history. Mr Haywood reminded me that the applicant bears no burden of proof in the assessment of his age (Merton at [38], R ota of CJ v Cardiff City Council [2011] EWCA Civ 1590 at [21]).
40. The respondent's March 2018 assessment was based primarily on the applicant's physical appearance, his demeanour, his accepted inconsistent statements in the Birkenhead interview as to his age, and his alleged inability to give consistent or clear details of his home life in Iraq or his journey to the United Kingdom. Mr Haywood contended that none of these factors would bear the weight given to them or provide credible reasons for disbelieving his claimed age. Mr Haywood made submissions which it is not necessary to recite here, as to the Merton compliance of the March 2018 age assessment: as Ms Bhogal accepted that it was not Merton compliant, the March 2018 assessment must be quashed.
41. On the question of the applicant's age, Mr Haywood reminded me of the guidance given by Mr Justice Picken in MVN v London Borough of Greenwich [2015] EWHC 1942 (Admin) at [27], that it is possible to have regard to general credibility, but that particular focus must always be on the credibility of what an applicant says about his age.
42. Mr Haywood argued that the applicant had shown himself to be an honest witness and that none of the reasons given by the respondent for disputing his age would stand scrutiny. The applicant in his evidence had been adamant that he had no contact with his family still in Iraq. The evidence was that he missed his mother very much and had treated Ms Branthwaite as a surrogate mother figure. The applicant had tried to contact his family members through the Red Cross, without success, which was not suggestive of any attempt to conceal his background from the respondent.
43. Mr Haywood invited me to find that the respondent's allegation that the applicant was prone to exaggeration and manipulative was not borne out by the evidence. He had experienced serious health problems (one seizure, nose bleeds and mental ill health) for which no cause had been established. Mr Haywood reminded me that the applicant's demeanour during his evidence had been disengaged, looking down, picking at his nails; his evidence had been that his mother used to cut his nails for him.
44. The applicant had made a credible suicide attempt, taking tablets and threatening to throw himself out of a second-floor window. He had been angry that an ambulance and the police were called, and had to be persuaded to go to hospital. He was on medication, which had been increased, which was not the hallmark of a person using alleged mental health problems to get his own way.
45. Mr Haywood reminded me of the applicant's evidence that in Iraq he was obsessed with car and football PlayStation games and he argued that the applicant's insistence in the United Kingdom that he should be provided with a PlayStation in the United Kingdom was consistent with that obsession and should be regarded as the action of a 'bolshy' teenager, not an adult.
46. Mr Haywood reminded me of the evidence of Ms Branthwaite, who had known the applicant for a month or so when he first arrived. I was invited to regard her as a thoughtful and compelling witness, with particular reference to the evidence about the applicant's cooking skills and playful behaviour.
47. In contrast, the respondent's only live witness, the social worker Mr Kato, did not know the applicant well, having seen him normally for an hour every 6-8 weeks. Mr Kato was a busy, newly qualified social worker and his evidence could not be treated as determinative of the applicant's stage of maturity.
48. Ms Brown had not given evidence and was of all the respondent's witnesses the one with the most career experience. She was on annual leave and unavailable.
49. The applicant's account of his age was consistent and credible: he said the same to everyone who asked him when he was born, or his age. The limited information about his date of birth provided by the applicant did not mean he was not 17 years old when he gave it. Taking all of the applicant's evidence together, Mr Haywood invited me to find that the applicant's age should be accepted as stated and the March 2018 age assessment quashed as not Merton-compliant and unfair.
Respondent's submissions
50. For the respondent, Ms Bhogal relied on her skeleton argument. Ms Bhogal referred to the decision of the Court of Appeal in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1420 at [35] in the judgment of Lord Justice Davis, with whom Lord Justice Longmore and Lord Justice Lewison agreed, that 'credibility often does have a very significant part to play in resolving an age assessment dispute' and acknowledged that the applicant's age is a question of fact for the Upper Tribunal. Even on his own case, the applicant was now an adult.
51. There were two major pieces of evidence about the applicant's age, his divergent statements in Birkenhead as to his age (16 or 17) and the evidence about his conversation with his mother in Iraq.
52. The applicant had been an unimpressive witness, repeatedly finding simple questions difficult to answer and giving the impression of being evasive, answering questions he had not been asked, even with the second interpreter. Ms Bhogal submitted that this was not caused by a lack of understanding but rather was deliberate obfuscation on the applicant's behalf. The evidence of his two claimed friends was inconsistent with that of the applicant in a number of major areas (particularly about his mobile telephone and after school activities).
53. The applicant clearly understood more English than he was willing to admit, having taken lessons in English at college for 16 hours a week for a year. The NHS and social worker records were of interaction without any interpreter present.
54. Ms Bhogal accepted that the evidence of the disputed 'man and a small child' telephone call in Kurdish was not supported by a full recording of the conversation or a proper transcript, being merely recorded part way through and reported in an email from the support worker to her superiors. However, the applicant did not deny that such a conversation had occurred and it was evidence that he had more of a support network in London than he had been prepared to admit to the respondent.
55. Ms Bhogal invited me to place little weight on the evidence of Ms Branthwaite. Ms Branthwaite was inexperienced, both as a support worker and in age assessment. Ms Branthwaite had carried out age assessments, albeit without training, but her evidence was that she had never assessed a young person to be over 18. She had only received a single day of unaccompanied asylum-seeking child training, to prepare her to be an appropriate adult in age assessment interviews.
56. Ms Branthwaite's contact with the applicant was very limited in duration and time: she provided 5 hours' support a week for a period of just 23 working days. Ms Branthwaite's evidence on the applicant's age covered a spectrum: at first, she said that she assessed him as being 16-17 years old, then 'closer to 16', then 'late 16, early 17'. As regards the evidence that other residents in Paiwand had taken him under their wing, it was not clear whether they were also age disputed.
57. The evidence of Ms Mary Brown, a very experienced social worker, should be given significant weight. Little Acorns was a 24-hour placement and she had more opportunity to get to know the applicant. Although Ms Brown's evidence, and that of Ms Branthwaite, was that the applicant missed his mother, that was not a reaction confined to youths under 18 years old.
58. Ms Bhogal suggested that although Mr Kato was newly qualified, and his contact with the applicant was brief, his evidence would bear weight. Mr Kato had seen the applicant regularly for over a year, every 6-8 weeks for an hour or so, during which the applicant was mainly complaining that his social workers were not doing enough for him.
59. Ms Bhogal reminded me of evidence that hospital staff had assisted the applicant to contact his parents. The applicant's evidence had been that he asked the hospital staff for the WiFi code and they overheard a telephone call which they understood was with his family in Iraq. The applicant's physical and mental health problems were not of themselves determinative.
60. I reserved my judgment, which I now give.
Dr Chisholm's evidence
61. Dr Brock Chisholm BSc (Hons), MSc, DClin (Psych), CPsychol, AFBPsS is a consultant clinical psychologist, and is clinical lead of the UK Psychological Trauma Society and a trustee of Survivors UK, a charity working with survivors of sexual abuse. He is Director of Criterion A Psychology Services, which provides training for general medical practitioners on the assessment of post-traumatic stress disorder and survivors of traumatic events, also on the assessment of mood, drama and anxiety disorders.
62. Dr Chisholm prepared a medico-legal report on the applicant. Dr Chisholm's opinion is based on a lengthy assessment meeting on August 30 2018, lasting several hours, which took place at the applicant's supported residence. He had all relevant documents and had spoken to the other professionals involved in the applicant's care. The applicant gave as few details as possible: Dr Chisholm regarded this as avoidant behaviour indicative of trauma. Dr Chisholm was unable to use any clinical assessment tools because the applicant became unresponsive in the second part of the assessment; however, he noted that the clinical tools normally used relied on self-reporting and were therefore open to malingering if used in a legal setting.
63. Dr Chisholm considered that the applicant should be treated as a vulnerable witness but that he was fit both to instruct his representatives and give evidence to the Tribunal, unless he became unresponsive or significantly less responsive due to sudden onset of low mood. Dr Chisholm advised that the applicant should not be asked questions about his separation from his parents or their possible death to avoid any such reaction. Fortunately, no such reaction occurred during the applicant's evidence to the Upper Tribunal: he remained alert and responsive throughout.
64. The applicant had a diagnosis of mild Major Depressive Disorder. He had an extremely low appetite, consistent with malnourishment, and expressed a wish to die and be with his mother. He had sleep difficulties and low mood, crying every night. The applicant's GP had documented the applicant's malnutrition. He was now taking vitamins to address that situation. The applicant wanted to trace his parents through the Red Cross but had not received help from his social worker to do so.
65. The applicant had made two suicide attempts, one with pills (he claimed to have taken all his medication at once) and one the next day, by trying to jump out of a second-floor window. After the alleged overdose, he was admitted to hospital but discharged himself before a full evaluation could be completed.
66. Dr Chisholm's opinion was that the applicant met the DSM-V criteria for both major depressive disorder and post-traumatic stress disorder. He applied criteria for malingering, feigning or exaggerating, but was satisfied that the applicant was unlikely to be malingering, and was minimising his distress until it was triggered by post-traumatic stress disorder symptoms. The past attempts at suicide should be regarded as a warning sign for future completed suicide.
67. The applicant had been able to give a coherent account to Dr Chisholm until his post-traumatic stress disorder was triggered: after that, he was unable to say anything, except that he wanted to die. Dr Chisholm did not think that was an act: whatever his age, the applicant was a vulnerable witness with an avoidant style.
68. On 29 October 2018, Dr Chisholm provided additional information in response to questions posed to him as an expert on 16 October 2018 by Ms Catherine Dineen, Social Care lawyer for the respondent. For the most part, the responses simply indicated where in the report the matters relied upon were already fully explained. Two areas in the responses are of interest: at question 3, Ms Dineen stated that as far as the respondent was aware, the applicant was not taking his prescribed medication, and asked to indicate what would be the consequences of that omission.
69. Dr Chisholm responded that he was not a prescribing clinician but that Sertraline and Mirtazapine, which had been prescribed to the applicant, were not first line antidepressants but were known to have some benefits for symptom reduction in post-traumatic stress disorder, where no evidence-based psychological treatment was in place, or to support 'what we know from research works best'. Dr Chisholm expressed doubt that this medication would help significantly, or that not taking it would have much of a negative impact on the applicant. The medication prescribed would not 'cure' the applicant. However, different people reacted differently, and Dr Chisholm recommended that the applicant continue taking the medication, to see whether it was effective.
70. Dr Chisholm considered that, whether the applicant was 18 or 21, he would have poor impulse control which made him a very high suicide risk. The applicant had no close family members to restrain him and although he was a religious person, that had not stopped him considering death, or trying to commit suicide, in the past. Regarding the seizure which the applicant had experienced, Dr Chisholm was asked by Ms Dineen to confirm all possible explanations as to why the applicant might suffer this problem. His response to that question was as follows:
"27. To make a firm diagnosis all possible physical/neurological abnormalities must be ruled out. Based on the documents I have seen this appears to be the case, but I cannot be absolutely certain that it has. It may be that there are other investigations that should be carried out. I am not a neurologist and any clear opinion should be expressed by one, which is why I wrote the following in [paragraph] 98: Further investigations are required before I can definitively diagnose this. It is probable that [the applicant] meets criteria for non-epileptic seizures.
28. As stated in my [medico-legal report, the applicant] stopped responding to my questions, so I was unable to conduct as thorough an assessment as I would have liked."
71. Dr Chisholm relied on Ms Branthwaite's email of 27 June 2018, reproduced in his response to the applicant's solicitors, and considered that the applicant was malnourished. Ms Branthwaite's email said this:
"This afternoon, I had an A&E doctor, Dr Waleed Chaudhry, from Northwick Park Hospital telephone me. [The applicant] has been admitted to A&E today and the doctor found him to be suicidal and has been malnourished for a period of time. ?Dr Chaudhry was enquiring about the age assessment and was fairly disgusted at the state in which he found [the applicant]. ?To reiterate, [the applicant] had been admitted to hospital last week for four nights, was discharged on Friday and came to one of Paiwand's accommodations. ? He went into hospital on Saturday and was discharged the same day."
72. The remaining questions and answers in Dr Chisholm's response add nothing to his main report.
The applicant's evidence
73. With that report in mind, the applicant was treated as a vulnerable witness at the hearing. However, even making every allowance for his mental state, the applicant was an unimpressive witness. He was strikingly reticent about his journey to the United Kingdom: I do not consider that he has been frank about the journey. However, that may well have been on the instructions of the agent or agents who arranged his travel and I do not place any particular negative weight on such reticence.
74. The applicant claimed that a man called Hakaan befriended him in the Jungle and gave him a mobile phone to play on, and that Hakaan rang him while he was in the lorry on the way to the United Kingdom, on that phone. The applicant agrees that when discovered, he snapped the SIM card in half to avoid getting Hakaan into trouble, and that he then deleted Hakaan's telephone number. I consider it more likely than not that Hakaan was the final link in a chain of agents who helped the applicant reach the United Kingdom.
75. The applicant's account of his age changed in his oral evidence. In all his written statements, the applicant said that his mother told him the date in the Kurdish calendar, and that Hakaan helped him convert it once he reached the Jungle. In his evidence to the Tribunal, however, the applicant said his mother had told him the date in the Gregorian calendar format, and confirmed that as his evidence when Counsel repeated the question. That makes nonsense of his account that Hakaan helped him convert it later. The applicant also spoke of knowing he was a year older at each New Year (his asserted birth date being 25 December): the Kurdish new year (Newroz) is not in December but on March 21. I place some weight, also, on his having given two different ages when he arrived at Birkenhead.
76. In his various accommodations, the applicant behaved like a person who had previously had a rather good standard of living and perhaps also servants: he complained of lack of cleanliness in the common parts of his accommodation, telling the staff and other residents to clean the bathroom before he used it. After some time, the applicant learned to keep himself and his clothes clean, having struggled with the concept of washing his own clothes, until they and he were very smelly, which he did not like. The applicant at times refused to eat, perhaps as a protest against the refusal of the respondent to provide him with a PlayStation, a larger room, a bigger television, gym membership, and a computer and smart phone.
77. The applicant's limited ability to cook, taken in isolation, does not bear much weight given his cultural background; it is likely that in Iraq cooking is a skill which is culturally regarded as for women, not young men. In time, the applicant did learn to cook one or two dishes, tending to use the kitchen when he was hungry, often after the kitchen curfew of 9.30 p.m. Other residents avoided using the kitchen when he was there.
78. The applicant's evidence was that in Iraq, neither he nor any of his family or friends spoke English, nor did they learn it at school, but that is difficult to reconcile with his evidence that his father bought him a 'cheap PlayStation' when he was 8 years old and he played on it, alone and with friends, in English, until he left for the United Kingdom when he was 16 years old. It beggars belief that the applicant learned no English by playing games written in English for 8 years. He was notably reluctant to name the games he played. It is also surprising, given the asserted poverty of the applicant's family, that even a cheap PlayStation and three games could be afforded.
79. The applicant's evidence about his mobile phones was inconsistent. He said Hakaan let him have a spare one to play games on in the Jungle. The applicant acquired a smart phone, an iPhone 5 Orange, very soon after arriving in the United Kingdom. His evidence was that he used it only on WiFi at his accommodation, and had no mobile phone contract or Facebook account. The evidence of Mr Saleh and Mr [H] contradicts that element of his account.
The applicant's witnesses
80. It is unfortunate in this application that there is no evidence based on normal day-to-day interactions over a long period of time, from any of the witnesses whose evidence is before me. The applicant seems not to have made lasting or close friendships in any of the accommodations where he stayed. I look in vain among the applicant's evidence for the type of witness that AM tells me would help me most. There is no evidence from teachers, team leaders, or other residents in the various homes in which the applicant lived.
81. The applicant in his oral evidence claimed to have been close to a Kurdish man at his accommodation in Derby, who may or may not have been an Afghan called Gulaab, and he also had a friend called Adib in Derby. He listed two large groups of college friends from the two years that he attended Harrow College: the first group was Mukhtar, age 18, Mujib who was 17, Sheikh and Habibi were 16; the second group, identified in cross-examination were Shapoor (who lived in the same accommodation), an Afghan boy called Omed, an Albanian called Daniel, a Kuwaiti called Sultan, and another man named Mahmoud. The applicant said he had made friends with a man, Harem, who lived at an adult hostel in Croydon, who may have been the man with a child to whom he was heard speaking on his mobile phone. Unfortunately, there is no oral or written evidence from any of these people, nor from his friend Mr Haras, who he said used to live in the Gayton accommodation, and to whom he spoke from hospital, on his account. The applicant was eventually given a gym membership, but there is no evidence from anyone at the gym.
82. The evidence of the two witnesses who attended as the applicant's friends was unsatisfactory and directly contradicted his own evidence on a number of points. Both of them claimed to know him at Harrow College, but both asserted that they had never met each other before the Upper Tribunal hearing and were not friends at Harrow College. Both asserted that they 'had no reason to doubt' the applicant's age and that he is a truthful person. Mr [H] has experience of the process of challenging an age assessment, successfully in his case.
83. Both Mr [S] and Mr [H] in their evidence asserted that they had a group of personal friends, which did not include the applicant, with whom they regularly played football during and after college, and that they had considered, but never got around to inviting him to play football with their friends. Mr [H] said that he was known for his football skills and identified the applicant as one of his 600-odd Facebook friends.
84. Both of them claimed to spend time with the applicant about three times a week after college, playing football just the two of them, or going into town to eat and explore. There were only 4 college days in total each week, and it would not be possible for the applicant to spend 3 of those four days, one-to-one, alone with two different people, without them meeting.
85. Both Mr [H] and Mr [S] said that the applicant had a normal mobile phone contract, and telephoned both friends and social workers outside the house using his mobile phone credit. Mr [S] also said that the applicant had an EE answerphone message so must have a mobile phone contract with EE. This evidence, while it did not go directly to the applicant's age, was evidence either that he was not truthful, or that his claimed friends did not know anything about his mobile phone habits.
86. Mr [S] said he met the applicant in August 2018 and that (inaccurately, as he had arrived in November 2017), the applicant said he was new in the United Kingdom. They did not play PlayStation together. Mr [H] could not remember when he met the applicant; whether it was in May/June 2018, or earlier, in about January 2018. He said he had spent time with the applicant at the beginning of term, that is to say, from September to some time in October 2018, after which he was too busy with his own life and problems. Between October and December 2018, they had met only three times, the last time in a rush, in December 2018, on the last day of term. In effect, this again seems to have been a brief friendship which ended quickly.
87. Mr [H]'s evidence about the applicant staying out without permission on the night of August 7/8 2017 was unsatisfactory. He thought it happened 'after September 2018' and he asserted that he had told the member of staff (who recorded his name as Gaican) that the applicant's ARCard said he was an adult. The card does not say that: it says that his age is disputed and gives a date of birth of 25 December 1998. I am not satisfied that Mr Gailan [H] was in fact the 'Gaican' with whom the applicant stayed out overnight in August.
Respondent's witnesses
88. I consider the respondent's witness evidence. It is more than usually unhelpful in this application. Mr Kato is a social worker and a stranger, who saw the applicant only briefly. He is exactly the type of witness that the Tribunal in AM (Solihull) considered was unlikely to be able to help me very much. Ms Branthwaite interacted with the applicant for 5 hours a week, for less than a month (I accept that she had some telephone contact with the applicant thereafter). She was inexperienced and I have concluded that I can place very little weight on her evidence.
89. Ms Brown, from whom I have a witness statement but no oral evidence, is by far the most experienced and qualified care worker who has given evidence about the applicant. She has worked for 23 years in the caring sector, with young people from multicultural backgrounds, and varied needs. She is highly qualified, with QCF Level 5 in Leadership and Management in Health and Social Care, Advanced Level 5 Counselling and Psychology, Level 4 Social Work Management and Level 3 Child and Adult Social Care. Ms Brown was responsible for the applicant in the accommodation (Tudor Gardens) which she managed for Above and Beyond Care from 31 August 2018 until at least the date of her statement, 19 October 2018. Her evidence was not controversial, though each party sought to place a different interpretation on parts of her statement.
90. Ms Brown did not attend for cross-examination because she was on annual leave. Her evidence was not tested, but in any event, it would not have assisted the applicant: she considered that although he missed his mother, and could be playful and silly (and sometimes annoyingly so) he was older than he said he was, as set out in her email to Mr Poole of 11 October 2018, following a request from Mr Poole for her to comment on his age and maturity. Mr Poole's email to Ms Brown noted that Ms Brown thought he was an adult but did not want to put that on record. Following a reminder that the local authority had a responsibility not to place adults with children, Ms Brown emailed in return, setting out her views:
"?I explained to [Mr Kato] that although I think he is more age advanced, he continuously displays a childish behaviour, which I have also mentioned in one of the questions' response, that he comes across as a child trapped in a young person's body, maybe to distract the attention around his overall experience.
Such behaviours can range from sitting on the floor, and at times, curled up with head in his hands, and crying out 'I want my mum' to other times when he would just demonstrate an overall giggling nature, as if nothing is taken seriously.
?Please refer to our previous young person (KF) who was of the same situation, and I was totally in agreement with his age dispute, and likewise this young person in question which I can totally say is not the given age. And yes, it is clear to see that he is more age advanced than he is making out. ?Kind regards, Mary Brown"
91. That is the evidence on which the Upper Tribunal is required to make a finding of fact as to this applicant's age. The multiple discrepancies which I have identified above are not explicable by the applicant's mental health difficulties: I ask myself therefore, why he would lie if his age is as stated, in particular about the mobile phone, the PlayStation, and about his friendships with Mr [S] and Mr Gailan.
92. I can find no reason for the applicant to give untruthful and contradictory evidence, other than to give the impression that he is younger. Taking all the evidence before me into account and doing the best I can with that evidence I am satisfied that this applicant is older than he claims, but not as old as the respondent considers him to be. I find that he was born in the Gregorian calendar year of 1999 and is now over 20 years old.
Decision
93. The respondent's assessment of the applicant's age, dated 28 March 2018, is hereby quashed.
94. I declare that the applicant's date of birth is 25 December 1999.
Costs
95. Costs are to be determined on the following basis:
(a) Within 14 days of the sealing of this Order, the applicant shall file and serve written submissions on costs, limited to 2 A4 pages.
(b) Within 14 days of the service of the applicant's written submissions, the respondent shall file and serve written submissions on costs, limited to 2 A4 pages.
(c) Within 7 days of service of the respondent's written submissions, the applicant may if so advised serve a response thereto, limited to 1 A4 page.
(d) There shall be legal aid assessment of the applicant's publicly funded costs.
Costs
96. There was no application by either party for permission to appeal to the Court of Appeal. The decision was handed down in the absence of both representatives, at their request.
97. I have considered for myself whether I should grant permission to appeal, as I am required to do by paragraph 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008 [as amended].
98. I refuse permission because I am not satisfied that there is any arguable error of law in the judgment I have given today.
JR/5305/2018
Field House,
Breams Buildings
London
EC4A 1WR
14-16 January 2019
Before
UPPER TRIBUNAL JUDGE GLEESON
Between
K A A
[ANONYMITY ORDER MADE]
Applicant
and
THE LONDON BOROUGH OF HARROW
Respondent
- - - - - - - -
Mr Phil Haywood of Counsel, instructed by Bhatia Best Solicitors, appeared on behalf of
the Applicant.
Ms Kuljit Bhogal of Counsel appeared on behalf of the Respondent.
- - - - - - - - - - - - -
APPROVED JUDGMENT
- - - - - - - - - - - - -
JUDGE GLEESON : The applicant has been granted permission for judicial review of the respondent's age assessment decision on 28 March 2018 assessing his date of birth as 25 December 1996.
2. The applicant asserts that his date of birth is 25 December 2000 and that he was a minor until 25 December 2018.
3. This application was lodged in the Administrative Court on 25 April 2018. On 13 June 2018, Pushpinder Saini QC, sitting as a Deputy High Court Judge in the Administrative Court, transferred the application to the Upper Tribunal pursuant to section 19 of the Tribunals Courts and Enforcement Act 2007. Accordingly, the Upper Tribunal has jurisdiction to determine the applicant's age as a question of fact, having regard to the credibility of the applicant's account and all the evidence before it.
4. The applicant is now an adult, both on his own asserted date of birth (25.12.2000) and on that assigned to him by the respondent (25.12.1996). However, his date of birth remains relevant and material, as under the Children Act 1989 the respondent's duties to former 'looked after' children do not end at the age of majority: a previously 'looked after' child remains entitled to advice and assistance from the respondent until the age of 21, pursuant to section 24(1B) of the Act.
5. The respondent has further obligations under sections 23A-23C and Schedule 2 of that Act, to prepare and maintain a Pathway Plan and appoint a personal advisor for former looked after children under the 'leaving care' regime applicable up to the age of 25. The applicant as a care leaver might also be entitled to benefits under the Housing Act 1996 by virtue of the Homelessness (Priority Need for Accommodation) Order 2002. On 25 April 2018, Mr Justice Butcher made an interim order that the respondent provide support and accommodation for the applicant as a child, pending the Upper Tribunal's decision on this application or further order.
6. The applicant was assisted from 18 April 2018 to 29 November 2018 by a litigation next friend, Francesco Jeff of the Refugee Council. By an order dated 29 November 2018, Mr Francesco ceased to be the applicant's litigation next friend. The applicant therefore now conducts these proceedings in his own right, as he is no longer a minor.
Evidence before the Upper Tribunal
7. I heard oral evidence from the applicant, and from three witnesses on his behalf: his friends Mr Gailan [H] and Mr Adib [S], and Ms Anna Branthwaite, a social worker. The applicant also relies on a medical report from Dr Brock Chisholm, a psychologist, who was not called to give evidence. There is a witness statement from Mr Martin Bridger, then a solicitor with Bhatia Best, who represent the applicant. He explained that several of Bhatia Best's letters about the applicant erroneously gave a date of birth for the applicant of 20 December 2000, not 25 December 2000, but that this was simply a typographical error, never having formed part of the applicant's instructions to his solicitors. For the respondent, Ms Bhogal accepted that nothing turned on that difference. Mr Bridger was not called.
8. For the respondent, I heard oral evidence from Mr Rashid Kato, a social worker who had responsibility for the applicant from November 2017, and have before me witness statements from Ms Mary Brown, Ms Yvonne Neequaye and Mr Jason Clarke (who conducted the withdrawn February 2018 age assessment) and from Mr Ian Poole and Mr Gerald Buckley, who conducted the March 2018 age assessment against which this challenge is brought.
9. In addition, I have had regard to the substantial bundles of contemporaneous medical and social work records, the parties' written and oral arguments, and the decided cases in the authorities bundle to which I was referred during the hearing. In considering the applicant's evidence in this judgment, I have excluded the evidence given through the first interpreter at the hearing on 14 January 2018, as I discharged that interpreter and the applicant's evidence began again on 15 January 2018.
10. I have also excluded from negative consideration the applicant's evidence about his journey to the United Kingdom; whilst there were serious concerns about his reticence in relation to that journey, this is not an asylum appeal and it is the credibility of the applicant's account of his age which is relevant today.
11. Both parties are aware of the evidence, both written and oral, that was considered by the Tribunal. This evidence is, in any event, a matter of record. I shall only refer to this evidence so far as it is necessary for me lawfully to determine the applicant's age, including the credibility of his account thereof. The parties' submissions are also a matter of record and I will refer only to those matters which are relevant to my analysis.
12. The legislative framework within which I reach my decision is well established and there is no disagreement between the parties on this. The disagreement arises on the credibility of and the weight to be given to various elements of the evidence. My primary focus is age, not the credibility of the account in general. There is no burden of proof and no formal benefit of the doubt principle.
13. I have had regard to all of the evidence and submissions before me and I have particularly taken account of the fact that whatever his age, this applicant is young.
Procedural matters
14. On 21 November 2018, the applicant's solicitors Bhatia Best wrote to the Tribunal, seeking permission to adduce a supplementary witness statement from the applicant, to be served 2 days before the advocates' meeting. Leave was not given, nor was any updated witness statement disclosed before the advocates' meeting. On the morning of the hearing on 14 January 2019, Mr Haywood applied to admit a bundle of supplementary evidence including previously undisclosed witness statements, all bearing January 2019 dates and a quantity of further documents. The witness statements were from Ms Katerina Zurkova, a trainee solicitor with Bhatia Best, who has conduct of this application; an updated witness statement from the applicant himself; and witness statements from the applicant's friends Mr Gailan [H] and Mr Adib [S].
15. For the respondent, Ms Bhogal objected to the admission of these documents without advance notice, in particular to that of Ms Zurkova, which concerned conversations in December 2018 with the respondent's witness Ms Mary Brown, who was on annual leave and could not be reached for instructions thereon. Ms Brown was unavailable for the hearing but her evidence was uncontentious (although the interpretation to be placed thereon was the subject of submissions by both parties).
16. After hearing submissions from both parties, I admitted the applicant's updated witness statement and those of Mr [H] and Mr [S], who were called as witnesses. I also admitted the applicant's supplementary bundle, with the exception of the witness statement of Ms Zurkova, which merely produces the emails from Ms Brown in the supplementary bundle. I have a properly disclosed witness statement from Ms Brown, supported by contemporaneous emails in the supplementary bundle and I have had regard to those. Mr Haywood and Ms Bhogal agreed that Ms Brown's view of the applicant was set out in those emails and the witness statement and that they could deal with her evidence in submissions.
Interpreter issues
17. The Upper Tribunal provided a Kurdish Sorani interpreter for the hearing. The applicant's solicitors had also instructed an interpreter who took notes and spoke quietly to Ms Zurkova during the morning of the first day, presumably letting her know of any concerns he had about the Court interpreter. Neither Ms Zurkova nor Mr Haywood raised any concerns with me, but just before the short adjournment on the first day, the interpreter said that he was unwilling to continue as he was being distracted by continual muttering between the applicant's solicitor and interpreter.
18. In fact, there had been a number of moments when I had been concerned by the interpretation of the applicant's evidence during the first morning of the hearing: he often seemed to answer a different question from that which Counsel or the Judge had asked, and translated responses were sometimes noticeably shorter or longer in English than they were in Sorani. I adjourned the question of the adequacy of the interpreter for consideration over the short adjournment, and when we resumed at 2 p.m., I discussed the interpretation issue with the parties. Ms Bhogal also had concerns but was worried that if the hearing restarted the next day, the applicant would have had a 'dress rehearsal' of his evidence. I indicated that I was not satisfied that the interpretation was of the standard required and I discharged the Court interpreter.
19. Ms Bhogal also mentioned that the applicant and his main witness, Mr [H], had been seen speaking and lunching together and was concerned that they might discuss their evidence overnight. I warned all the witnesses: given the discrepancies in the evidence they gave, if there was any attempt at concert in their evidence, it was not successful.
Background
20. The applicant is an Iraqi citizen of Kurdish ethnicity, from Tuz Khurmatu. He claims to be an only child. The applicant's knowledge of his age and date of birth is said to come from what his mother told him in Iraq in 2013 or 2014 while she was cooking in the kitchen. He says he was at home because he had ceased attending school after only 4 years of primary education.
21. On 16 October 2017, when the applicant on his own account was almost 17 years old, fierce clashes erupted in his home town of Tuz Khurmatu between government forces and the Peshmerga. Tens of thousands of people lost their homes through indiscriminate burning, looting and demolition of their properties, mainly in the Kurdish areas. The respondent does not dispute that this event, which is well documented in reliable international sources, occurred in Tuz Khurmatu on that date.
22. The applicant and his family fled the fighting in Tuz Khurmatu on 16 October 2017. He became separated from his parents during their escape and has not seen nor heard from them since. The applicant has sought to trace his parents through the Red Cross but they had a long waiting list for consideration of tracing: the Red Cross had only just begun to seek to trace his family members when this application was heard.
23. The applicant left Iraq and has not returned there since. After leaving Tuz Khurmatu, the applicant's account is that he then travelled alone across Europe for almost a month, mainly in the back of lorries, and cannot or will not give details of the countries through which he passed, nor any reliable details of his journey. I accept that there may be reasons for his reluctance, connected with the agent or agents who arranged the journey, and I remind myself that this is not the asylum appeal. I do not treat the applicant's reticence about the journey as relevant to whether he has given a credible account of his age.
24. The Birkenhead interview. The applicant arrived in the United Kingdom when he reached Belfast. He was helped to take a ferry from Belfast to Liverpool, was discovered on arrival, on 13 November 2017 and apprehended. On his asserted date of birth, his 17th birthday was just over a month away. The applicant accepts that when he was apprehended and interviewed, he told the authorities that he was both 17 and 16 years old on different occasions.
25. The applicant claimed asylum and had a screening interview at Birkenhead, but without an appropriate adult present, as his asserted age required. It is not disputed that the Birkenhead interview was not Merton-compliant. The respondent has treated it, not as an age assessment, but as a social work assessment only. The applicant was then taken into the care of the respondent and placed in foster care until a full lawful age assessment could be completed.
26. The February 2018 age assessment. There followed an abortive age assessment made between December 2017 and February 2018: Ms Neequaye and Mr Clarke interviewed the applicant on 15 and 19 December 2017, but both interviews had to be stopped because the applicant was experiencing cold and a numb sensation in his legs. He was taken to accident and emergency, who referred the problem back to his general medical practitioner. On 15 January 2018, Ms Neequaye and Mr Clarke interviewed the applicant again, concluding their assessment on 8 February 2018.
27. The outcome of the February 2018 assessment was that the respondent concluded that the applicant was an adult, and he was dispersed to adult Home Office accommodation in Derby on 14 February 2014.
28. The applicant's solicitors challenged the February 2018 age assessment and following that challenge, the respondent withdrew the February 2018 age assessment and agreed to remake the assessment afresh: the respondent then took the applicant back into its care until that fresh decision could be made. I place no weight on the February 2018 age assessment or the evidence the applicant gave in those interviews.
29. The March 2018 age assessment. Further age assessment interviews were held by Mr Poole and Mr Buckley on 15, 22 and 28 March 2018, leading to the decision under challenge. On 28 March 2018, they informed the applicant of their concerns about the credibility of his account and in their decision, maintained the earlier finding that the applicant's correct date of birth was 25 December 1996 and that he was then considered to be 21 years old.
30. The respondent withdrew accommodation and support. The applicant was placed by the Home Office in shared adult accommodation with adult asylum seekers not known to him. He no longer received the support which his representatives claim is appropriate to his age (then) of 17 years old.
31. In reaching their assessment decision, Mr Poole and Mr Buckley had express regard to the contents of both the Birkenhead interview without an appropriate adult, and the withdrawn February 2018 age assessment. Ms Bhogal accepts that in consequence, the March 2018 age assessment is also not Merton-compliant.
32. The asylum claim. The applicant's asylum claim remains pending: after treating it as withdrawn in May 2018 for non-attendance at his asylum interview, the Secretary of State for the Home Department in January 2019 accepted that the appointment letter had not been served at the correct address (the Home Office sent it to the applicant's NASS address but he had been returned to the care of the respondent). The asylum claim has been reinstated and an interview date is to be sent out shortly.
Grounds for review
33. The applicant's grounds for review challenge the March 2018 age assessment decision, both on the basis that it was unlawfully made because the assessors took into account the Birkenhead interview and the withdrawn February 2018 assessment, and because he says that the age assigned to him is factually incorrect. The applicant contends that in consequence, very little weight can be placed on this latest age assessment, and that greater weight should be placed on his own evidence.
34. The applicant seeks declarations by the Upper Tribunal confirming his claimed age, or such other age as the Tribunal may determine, and quashing the March 2018 age assessment, together with his costs and such other orders or directions as the Tribunal may think fit.
35. The applicant gave oral evidence, with the assistance of a Kurdish Sorani interpreter, adopting his three witness statements of 2 October 2018, 19 October 2018, and 10 January 2019, as well as relying on the 4 June 2018 witness statement in his asylum claim. Each of the applicant's witness statements was certified as having been translated from English to Kurdish. The applicant told the Tribunal that he could not read English so had been unable to read his statements, but had signed and agreed to them after they were read over to him in Kurdish Sorani.
36. There was no challenge to the professionalism of the second interpreter who assisted the Upper Tribunal on Tuesday 15 January 2019. The matters put to the applicant in his abortive evidence on Monday 14 January 2019 were revisited with the fresh interpreter, so the applicant had what Ms Bhogal described as a 'dress rehearsal' for his evidence on the second day and every opportunity, therefore, to give a coherent, truthful and consistent account on 15 January when he gave the evidence again.
37. For the reasons I now explain, I did not find the applicant to be a truthful or credible witness, either generally or on the core issue of his age. His evidence, and that of the other witnesses, is a matter of record and will not be set out in extenso in this judgment.
Mr Haywood's submissions
38. For the applicant, Mr Haywood argued that the Upper Tribunal's approach to his physical appearance should follow the guidance of UTIAC Vice-President Ockelton in R on the application of AM v Solihull Metropolitan Borough Council [2012] UKUT00118 (IAC) at [15]-[16]). Mr Haywood argued that the respondent had not shown sound reasons for disbelieving the applicant's claimed age on the basis of his demeanour, which is a notoriously unreliable means of assessing age, particularly during a short interview or interviews with a social worker who does not know the applicant on a daily basis.
39. Mr Haywood argued that the disputed age assessment in March 2018 took no account of the trauma of the applicant's terrifying journey to the United Kingdom, the distressing loss of contact with his parents, nor the effect of those factors on his ability to give a clear and consistent account of his history. Mr Haywood reminded me that the applicant bears no burden of proof in the assessment of his age (Merton at [38], R ota of CJ v Cardiff City Council [2011] EWCA Civ 1590 at [21]).
40. The respondent's March 2018 assessment was based primarily on the applicant's physical appearance, his demeanour, his accepted inconsistent statements in the Birkenhead interview as to his age, and his alleged inability to give consistent or clear details of his home life in Iraq or his journey to the United Kingdom. Mr Haywood contended that none of these factors would bear the weight given to them or provide credible reasons for disbelieving his claimed age. Mr Haywood made submissions which it is not necessary to recite here, as to the Merton compliance of the March 2018 age assessment: as Ms Bhogal accepted that it was not Merton compliant, the March 2018 assessment must be quashed.
41. On the question of the applicant's age, Mr Haywood reminded me of the guidance given by Mr Justice Picken in MVN v London Borough of Greenwich [2015] EWHC 1942 (Admin) at [27], that it is possible to have regard to general credibility, but that particular focus must always be on the credibility of what an applicant says about his age.
42. Mr Haywood argued that the applicant had shown himself to be an honest witness and that none of the reasons given by the respondent for disputing his age would stand scrutiny. The applicant in his evidence had been adamant that he had no contact with his family still in Iraq. The evidence was that he missed his mother very much and had treated Ms Branthwaite as a surrogate mother figure. The applicant had tried to contact his family members through the Red Cross, without success, which was not suggestive of any attempt to conceal his background from the respondent.
43. Mr Haywood invited me to find that the respondent's allegation that the applicant was prone to exaggeration and manipulative was not borne out by the evidence. He had experienced serious health problems (one seizure, nose bleeds and mental ill health) for which no cause had been established. Mr Haywood reminded me that the applicant's demeanour during his evidence had been disengaged, looking down, picking at his nails; his evidence had been that his mother used to cut his nails for him.
44. The applicant had made a credible suicide attempt, taking tablets and threatening to throw himself out of a second-floor window. He had been angry that an ambulance and the police were called, and had to be persuaded to go to hospital. He was on medication, which had been increased, which was not the hallmark of a person using alleged mental health problems to get his own way.
45. Mr Haywood reminded me of the applicant's evidence that in Iraq he was obsessed with car and football PlayStation games and he argued that the applicant's insistence in the United Kingdom that he should be provided with a PlayStation in the United Kingdom was consistent with that obsession and should be regarded as the action of a 'bolshy' teenager, not an adult.
46. Mr Haywood reminded me of the evidence of Ms Branthwaite, who had known the applicant for a month or so when he first arrived. I was invited to regard her as a thoughtful and compelling witness, with particular reference to the evidence about the applicant's cooking skills and playful behaviour.
47. In contrast, the respondent's only live witness, the social worker Mr Kato, did not know the applicant well, having seen him normally for an hour every 6-8 weeks. Mr Kato was a busy, newly qualified social worker and his evidence could not be treated as determinative of the applicant's stage of maturity.
48. Ms Brown had not given evidence and was of all the respondent's witnesses the one with the most career experience. She was on annual leave and unavailable.
49. The applicant's account of his age was consistent and credible: he said the same to everyone who asked him when he was born, or his age. The limited information about his date of birth provided by the applicant did not mean he was not 17 years old when he gave it. Taking all of the applicant's evidence together, Mr Haywood invited me to find that the applicant's age should be accepted as stated and the March 2018 age assessment quashed as not Merton-compliant and unfair.
Respondent's submissions
50. For the respondent, Ms Bhogal relied on her skeleton argument. Ms Bhogal referred to the decision of the Court of Appeal in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1420 at [35] in the judgment of Lord Justice Davis, with whom Lord Justice Longmore and Lord Justice Lewison agreed, that 'credibility often does have a very significant part to play in resolving an age assessment dispute' and acknowledged that the applicant's age is a question of fact for the Upper Tribunal. Even on his own case, the applicant was now an adult.
51. There were two major pieces of evidence about the applicant's age, his divergent statements in Birkenhead as to his age (16 or 17) and the evidence about his conversation with his mother in Iraq.
52. The applicant had been an unimpressive witness, repeatedly finding simple questions difficult to answer and giving the impression of being evasive, answering questions he had not been asked, even with the second interpreter. Ms Bhogal submitted that this was not caused by a lack of understanding but rather was deliberate obfuscation on the applicant's behalf. The evidence of his two claimed friends was inconsistent with that of the applicant in a number of major areas (particularly about his mobile telephone and after school activities).
53. The applicant clearly understood more English than he was willing to admit, having taken lessons in English at college for 16 hours a week for a year. The NHS and social worker records were of interaction without any interpreter present.
54. Ms Bhogal accepted that the evidence of the disputed 'man and a small child' telephone call in Kurdish was not supported by a full recording of the conversation or a proper transcript, being merely recorded part way through and reported in an email from the support worker to her superiors. However, the applicant did not deny that such a conversation had occurred and it was evidence that he had more of a support network in London than he had been prepared to admit to the respondent.
55. Ms Bhogal invited me to place little weight on the evidence of Ms Branthwaite. Ms Branthwaite was inexperienced, both as a support worker and in age assessment. Ms Branthwaite had carried out age assessments, albeit without training, but her evidence was that she had never assessed a young person to be over 18. She had only received a single day of unaccompanied asylum-seeking child training, to prepare her to be an appropriate adult in age assessment interviews.
56. Ms Branthwaite's contact with the applicant was very limited in duration and time: she provided 5 hours' support a week for a period of just 23 working days. Ms Branthwaite's evidence on the applicant's age covered a spectrum: at first, she said that she assessed him as being 16-17 years old, then 'closer to 16', then 'late 16, early 17'. As regards the evidence that other residents in Paiwand had taken him under their wing, it was not clear whether they were also age disputed.
57. The evidence of Ms Mary Brown, a very experienced social worker, should be given significant weight. Little Acorns was a 24-hour placement and she had more opportunity to get to know the applicant. Although Ms Brown's evidence, and that of Ms Branthwaite, was that the applicant missed his mother, that was not a reaction confined to youths under 18 years old.
58. Ms Bhogal suggested that although Mr Kato was newly qualified, and his contact with the applicant was brief, his evidence would bear weight. Mr Kato had seen the applicant regularly for over a year, every 6-8 weeks for an hour or so, during which the applicant was mainly complaining that his social workers were not doing enough for him.
59. Ms Bhogal reminded me of evidence that hospital staff had assisted the applicant to contact his parents. The applicant's evidence had been that he asked the hospital staff for the WiFi code and they overheard a telephone call which they understood was with his family in Iraq. The applicant's physical and mental health problems were not of themselves determinative.
60. I reserved my judgment, which I now give.
Dr Chisholm's evidence
61. Dr Brock Chisholm BSc (Hons), MSc, DClin (Psych), CPsychol, AFBPsS is a consultant clinical psychologist, and is clinical lead of the UK Psychological Trauma Society and a trustee of Survivors UK, a charity working with survivors of sexual abuse. He is Director of Criterion A Psychology Services, which provides training for general medical practitioners on the assessment of post-traumatic stress disorder and survivors of traumatic events, also on the assessment of mood, drama and anxiety disorders.
62. Dr Chisholm prepared a medico-legal report on the applicant. Dr Chisholm's opinion is based on a lengthy assessment meeting on August 30 2018, lasting several hours, which took place at the applicant's supported residence. He had all relevant documents and had spoken to the other professionals involved in the applicant's care. The applicant gave as few details as possible: Dr Chisholm regarded this as avoidant behaviour indicative of trauma. Dr Chisholm was unable to use any clinical assessment tools because the applicant became unresponsive in the second part of the assessment; however, he noted that the clinical tools normally used relied on self-reporting and were therefore open to malingering if used in a legal setting.
63. Dr Chisholm considered that the applicant should be treated as a vulnerable witness but that he was fit both to instruct his representatives and give evidence to the Tribunal, unless he became unresponsive or significantly less responsive due to sudden onset of low mood. Dr Chisholm advised that the applicant should not be asked questions about his separation from his parents or their possible death to avoid any such reaction. Fortunately, no such reaction occurred during the applicant's evidence to the Upper Tribunal: he remained alert and responsive throughout.
64. The applicant had a diagnosis of mild Major Depressive Disorder. He had an extremely low appetite, consistent with malnourishment, and expressed a wish to die and be with his mother. He had sleep difficulties and low mood, crying every night. The applicant's GP had documented the applicant's malnutrition. He was now taking vitamins to address that situation. The applicant wanted to trace his parents through the Red Cross but had not received help from his social worker to do so.
65. The applicant had made two suicide attempts, one with pills (he claimed to have taken all his medication at once) and one the next day, by trying to jump out of a second-floor window. After the alleged overdose, he was admitted to hospital but discharged himself before a full evaluation could be completed.
66. Dr Chisholm's opinion was that the applicant met the DSM-V criteria for both major depressive disorder and post-traumatic stress disorder. He applied criteria for malingering, feigning or exaggerating, but was satisfied that the applicant was unlikely to be malingering, and was minimising his distress until it was triggered by post-traumatic stress disorder symptoms. The past attempts at suicide should be regarded as a warning sign for future completed suicide.
67. The applicant had been able to give a coherent account to Dr Chisholm until his post-traumatic stress disorder was triggered: after that, he was unable to say anything, except that he wanted to die. Dr Chisholm did not think that was an act: whatever his age, the applicant was a vulnerable witness with an avoidant style.
68. On 29 October 2018, Dr Chisholm provided additional information in response to questions posed to him as an expert on 16 October 2018 by Ms Catherine Dineen, Social Care lawyer for the respondent. For the most part, the responses simply indicated where in the report the matters relied upon were already fully explained. Two areas in the responses are of interest: at question 3, Ms Dineen stated that as far as the respondent was aware, the applicant was not taking his prescribed medication, and asked to indicate what would be the consequences of that omission.
69. Dr Chisholm responded that he was not a prescribing clinician but that Sertraline and Mirtazapine, which had been prescribed to the applicant, were not first line antidepressants but were known to have some benefits for symptom reduction in post-traumatic stress disorder, where no evidence-based psychological treatment was in place, or to support 'what we know from research works best'. Dr Chisholm expressed doubt that this medication would help significantly, or that not taking it would have much of a negative impact on the applicant. The medication prescribed would not 'cure' the applicant. However, different people reacted differently, and Dr Chisholm recommended that the applicant continue taking the medication, to see whether it was effective.
70. Dr Chisholm considered that, whether the applicant was 18 or 21, he would have poor impulse control which made him a very high suicide risk. The applicant had no close family members to restrain him and although he was a religious person, that had not stopped him considering death, or trying to commit suicide, in the past. Regarding the seizure which the applicant had experienced, Dr Chisholm was asked by Ms Dineen to confirm all possible explanations as to why the applicant might suffer this problem. His response to that question was as follows:
"27. To make a firm diagnosis all possible physical/neurological abnormalities must be ruled out. Based on the documents I have seen this appears to be the case, but I cannot be absolutely certain that it has. It may be that there are other investigations that should be carried out. I am not a neurologist and any clear opinion should be expressed by one, which is why I wrote the following in [paragraph] 98: Further investigations are required before I can definitively diagnose this. It is probable that [the applicant] meets criteria for non-epileptic seizures.
28. As stated in my [medico-legal report, the applicant] stopped responding to my questions, so I was unable to conduct as thorough an assessment as I would have liked."
71. Dr Chisholm relied on Ms Branthwaite's email of 27 June 2018, reproduced in his response to the applicant's solicitors, and considered that the applicant was malnourished. Ms Branthwaite's email said this:
"This afternoon, I had an A&E doctor, Dr Waleed Chaudhry, from Northwick Park Hospital telephone me. [The applicant] has been admitted to A&E today and the doctor found him to be suicidal and has been malnourished for a period of time. ?Dr Chaudhry was enquiring about the age assessment and was fairly disgusted at the state in which he found [the applicant]. ?To reiterate, [the applicant] had been admitted to hospital last week for four nights, was discharged on Friday and came to one of Paiwand's accommodations. ? He went into hospital on Saturday and was discharged the same day."
72. The remaining questions and answers in Dr Chisholm's response add nothing to his main report.
The applicant's evidence
73. With that report in mind, the applicant was treated as a vulnerable witness at the hearing. However, even making every allowance for his mental state, the applicant was an unimpressive witness. He was strikingly reticent about his journey to the United Kingdom: I do not consider that he has been frank about the journey. However, that may well have been on the instructions of the agent or agents who arranged his travel and I do not place any particular negative weight on such reticence.
74. The applicant claimed that a man called Hakaan befriended him in the Jungle and gave him a mobile phone to play on, and that Hakaan rang him while he was in the lorry on the way to the United Kingdom, on that phone. The applicant agrees that when discovered, he snapped the SIM card in half to avoid getting Hakaan into trouble, and that he then deleted Hakaan's telephone number. I consider it more likely than not that Hakaan was the final link in a chain of agents who helped the applicant reach the United Kingdom.
75. The applicant's account of his age changed in his oral evidence. In all his written statements, the applicant said that his mother told him the date in the Kurdish calendar, and that Hakaan helped him convert it once he reached the Jungle. In his evidence to the Tribunal, however, the applicant said his mother had told him the date in the Gregorian calendar format, and confirmed that as his evidence when Counsel repeated the question. That makes nonsense of his account that Hakaan helped him convert it later. The applicant also spoke of knowing he was a year older at each New Year (his asserted birth date being 25 December): the Kurdish new year (Newroz) is not in December but on March 21. I place some weight, also, on his having given two different ages when he arrived at Birkenhead.
76. In his various accommodations, the applicant behaved like a person who had previously had a rather good standard of living and perhaps also servants: he complained of lack of cleanliness in the common parts of his accommodation, telling the staff and other residents to clean the bathroom before he used it. After some time, the applicant learned to keep himself and his clothes clean, having struggled with the concept of washing his own clothes, until they and he were very smelly, which he did not like. The applicant at times refused to eat, perhaps as a protest against the refusal of the respondent to provide him with a PlayStation, a larger room, a bigger television, gym membership, and a computer and smart phone.
77. The applicant's limited ability to cook, taken in isolation, does not bear much weight given his cultural background; it is likely that in Iraq cooking is a skill which is culturally regarded as for women, not young men. In time, the applicant did learn to cook one or two dishes, tending to use the kitchen when he was hungry, often after the kitchen curfew of 9.30 p.m. Other residents avoided using the kitchen when he was there.
78. The applicant's evidence was that in Iraq, neither he nor any of his family or friends spoke English, nor did they learn it at school, but that is difficult to reconcile with his evidence that his father bought him a 'cheap PlayStation' when he was 8 years old and he played on it, alone and with friends, in English, until he left for the United Kingdom when he was 16 years old. It beggars belief that the applicant learned no English by playing games written in English for 8 years. He was notably reluctant to name the games he played. It is also surprising, given the asserted poverty of the applicant's family, that even a cheap PlayStation and three games could be afforded.
79. The applicant's evidence about his mobile phones was inconsistent. He said Hakaan let him have a spare one to play games on in the Jungle. The applicant acquired a smart phone, an iPhone 5 Orange, very soon after arriving in the United Kingdom. His evidence was that he used it only on WiFi at his accommodation, and had no mobile phone contract or Facebook account. The evidence of Mr Saleh and Mr [H] contradicts that element of his account.
The applicant's witnesses
80. It is unfortunate in this application that there is no evidence based on normal day-to-day interactions over a long period of time, from any of the witnesses whose evidence is before me. The applicant seems not to have made lasting or close friendships in any of the accommodations where he stayed. I look in vain among the applicant's evidence for the type of witness that AM tells me would help me most. There is no evidence from teachers, team leaders, or other residents in the various homes in which the applicant lived.
81. The applicant in his oral evidence claimed to have been close to a Kurdish man at his accommodation in Derby, who may or may not have been an Afghan called Gulaab, and he also had a friend called Adib in Derby. He listed two large groups of college friends from the two years that he attended Harrow College: the first group was Mukhtar, age 18, Mujib who was 17, Sheikh and Habibi were 16; the second group, identified in cross-examination were Shapoor (who lived in the same accommodation), an Afghan boy called Omed, an Albanian called Daniel, a Kuwaiti called Sultan, and another man named Mahmoud. The applicant said he had made friends with a man, Harem, who lived at an adult hostel in Croydon, who may have been the man with a child to whom he was heard speaking on his mobile phone. Unfortunately, there is no oral or written evidence from any of these people, nor from his friend Mr Haras, who he said used to live in the Gayton accommodation, and to whom he spoke from hospital, on his account. The applicant was eventually given a gym membership, but there is no evidence from anyone at the gym.
82. The evidence of the two witnesses who attended as the applicant's friends was unsatisfactory and directly contradicted his own evidence on a number of points. Both of them claimed to know him at Harrow College, but both asserted that they had never met each other before the Upper Tribunal hearing and were not friends at Harrow College. Both asserted that they 'had no reason to doubt' the applicant's age and that he is a truthful person. Mr [H] has experience of the process of challenging an age assessment, successfully in his case.
83. Both Mr [S] and Mr [H] in their evidence asserted that they had a group of personal friends, which did not include the applicant, with whom they regularly played football during and after college, and that they had considered, but never got around to inviting him to play football with their friends. Mr [H] said that he was known for his football skills and identified the applicant as one of his 600-odd Facebook friends.
84. Both of them claimed to spend time with the applicant about three times a week after college, playing football just the two of them, or going into town to eat and explore. There were only 4 college days in total each week, and it would not be possible for the applicant to spend 3 of those four days, one-to-one, alone with two different people, without them meeting.
85. Both Mr [H] and Mr [S] said that the applicant had a normal mobile phone contract, and telephoned both friends and social workers outside the house using his mobile phone credit. Mr [S] also said that the applicant had an EE answerphone message so must have a mobile phone contract with EE. This evidence, while it did not go directly to the applicant's age, was evidence either that he was not truthful, or that his claimed friends did not know anything about his mobile phone habits.
86. Mr [S] said he met the applicant in August 2018 and that (inaccurately, as he had arrived in November 2017), the applicant said he was new in the United Kingdom. They did not play PlayStation together. Mr [H] could not remember when he met the applicant; whether it was in May/June 2018, or earlier, in about January 2018. He said he had spent time with the applicant at the beginning of term, that is to say, from September to some time in October 2018, after which he was too busy with his own life and problems. Between October and December 2018, they had met only three times, the last time in a rush, in December 2018, on the last day of term. In effect, this again seems to have been a brief friendship which ended quickly.
87. Mr [H]'s evidence about the applicant staying out without permission on the night of August 7/8 2017 was unsatisfactory. He thought it happened 'after September 2018' and he asserted that he had told the member of staff (who recorded his name as Gaican) that the applicant's ARCard said he was an adult. The card does not say that: it says that his age is disputed and gives a date of birth of 25 December 1998. I am not satisfied that Mr Gailan [H] was in fact the 'Gaican' with whom the applicant stayed out overnight in August.
Respondent's witnesses
88. I consider the respondent's witness evidence. It is more than usually unhelpful in this application. Mr Kato is a social worker and a stranger, who saw the applicant only briefly. He is exactly the type of witness that the Tribunal in AM (Solihull) considered was unlikely to be able to help me very much. Ms Branthwaite interacted with the applicant for 5 hours a week, for less than a month (I accept that she had some telephone contact with the applicant thereafter). She was inexperienced and I have concluded that I can place very little weight on her evidence.
89. Ms Brown, from whom I have a witness statement but no oral evidence, is by far the most experienced and qualified care worker who has given evidence about the applicant. She has worked for 23 years in the caring sector, with young people from multicultural backgrounds, and varied needs. She is highly qualified, with QCF Level 5 in Leadership and Management in Health and Social Care, Advanced Level 5 Counselling and Psychology, Level 4 Social Work Management and Level 3 Child and Adult Social Care. Ms Brown was responsible for the applicant in the accommodation (Tudor Gardens) which she managed for Above and Beyond Care from 31 August 2018 until at least the date of her statement, 19 October 2018. Her evidence was not controversial, though each party sought to place a different interpretation on parts of her statement.
90. Ms Brown did not attend for cross-examination because she was on annual leave. Her evidence was not tested, but in any event, it would not have assisted the applicant: she considered that although he missed his mother, and could be playful and silly (and sometimes annoyingly so) he was older than he said he was, as set out in her email to Mr Poole of 11 October 2018, following a request from Mr Poole for her to comment on his age and maturity. Mr Poole's email to Ms Brown noted that Ms Brown thought he was an adult but did not want to put that on record. Following a reminder that the local authority had a responsibility not to place adults with children, Ms Brown emailed in return, setting out her views:
"?I explained to [Mr Kato] that although I think he is more age advanced, he continuously displays a childish behaviour, which I have also mentioned in one of the questions' response, that he comes across as a child trapped in a young person's body, maybe to distract the attention around his overall experience.
Such behaviours can range from sitting on the floor, and at times, curled up with head in his hands, and crying out 'I want my mum' to other times when he would just demonstrate an overall giggling nature, as if nothing is taken seriously.
?Please refer to our previous young person (KF) who was of the same situation, and I was totally in agreement with his age dispute, and likewise this young person in question which I can totally say is not the given age. And yes, it is clear to see that he is more age advanced than he is making out. ?Kind regards, Mary Brown"
91. That is the evidence on which the Upper Tribunal is required to make a finding of fact as to this applicant's age. The multiple discrepancies which I have identified above are not explicable by the applicant's mental health difficulties: I ask myself therefore, why he would lie if his age is as stated, in particular about the mobile phone, the PlayStation, and about his friendships with Mr [S] and Mr Gailan.
92. I can find no reason for the applicant to give untruthful and contradictory evidence, other than to give the impression that he is younger. Taking all the evidence before me into account and doing the best I can with that evidence I am satisfied that this applicant is older than he claims, but not as old as the respondent considers him to be. I find that he was born in the Gregorian calendar year of 1999 and is now over 20 years old.
Decision
93. The respondent's assessment of the applicant's age, dated 28 March 2018, is hereby quashed.
94. I declare that the applicant's date of birth is 25 December 1999.
Costs
95. Costs are to be determined on the following basis:
(a) Within 14 days of the sealing of this Order, the applicant shall file and serve written submissions on costs, limited to 2 A4 pages.
(b) Within 14 days of the service of the applicant's written submissions, the respondent shall file and serve written submissions on costs, limited to 2 A4 pages.
(c) Within 7 days of service of the respondent's written submissions, the applicant may if so advised serve a response thereto, limited to 1 A4 page.
(d) There shall be legal aid assessment of the applicant's publicly funded costs.
Costs
96. There was no application by either party for permission to appeal to the Court of Appeal. The decision was handed down in the absence of both representatives, at their request.
97. I have considered for myself whether I should grant permission to appeal, as I am required to do by paragraph 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008 [as amended].
98. I refuse permission because I am not satisfied that there is any arguable error of law in the judgment I have given today.