Tribunal decisions

The decision

UTIJR6

JR/10076/2016

Upper Tribunal
Immigration and Asylum Chamber

Judicial Review

before

Upper Tribunal Judge Macleman

The Queen on the application of SHAKIR ORYAKHAIL
(by his litigation friend, Giulia Gosi)

Applicant
v

London Borough of Croydon
Respondent

Heard at Field House, London, on 17 - 20 July 2017.

For the applicant: Mr J Dubin, instructed by Scott-Moncrieff & Associates Ltd, Solicitors

For the respondent: Mr R Hadden, instructed by London Borough of Croydon

NOTICE OF DECISION AND REASONS

1. The applicant arrived in the UK on 6 July 2015 and sought asylum on 8 July 2015. The UKBA disputed his stated age of around 14 years 8 months, and referred him to the respondent, ascribing a claimed birth date of 1 January 2000 in the meantime. An ascribed date of 1 October 2000 also appears on some documentation (this was unexplained, although the suggestion by Mr Dubin of a transcribing error appears likely). On 21 March 2016, the respondent completed its age assessment and advised the applicant in writing of the conclusion that he was over the age of 18. No date of birth was ascribed.

2. Following the grant of permission to apply for judicial review, the UT by order dated 15 March 2017 set down the applicant's case for a fact-finding hearing to determine whether he is, or when he first presented to the respondent as a putative child in need, was a child and if so, his date of birth.

3. The factual determination of the applicant's age is determinative of the case, save for one subsidiary issue: whether the respondent's age assessment is unlawful for saying only that at its date the applicant was over 18, rather than ascribing a date of birth, to preclude the possibility that he was entitled to services at the relevant date. The applicant founds upon R (F) v Lewisham LBC [2009] EWHC 3542 (Admin). Apart from that, the parties are not at issue on the applicable law, which is clearly set out in undisputed terms in the written submissions, and need not be repeated here.

4. The applicant does not claim to know his date of birth. He asks for it to be determined as 17 at the date of the hearing, and for a date to be assigned within the range of 12 March to 4 August 2000.

5. The respondent asks for a finding that the applicant was already an adult when he first sought the respondent's services, on 8 July 2015.

6. Counsel properly subjected the evidence to detailed cross-examination and to close analysis. While that plays its part in the outcome, there is no need to review each aspect which might tend minutely one way or the other. The precise reality is unknowable, and the assignation of a date of birth, although the best the tribunal can do, is inevitably based on a rather broad assessment.

7. As to the credibility of the applicant, it was submitted on his behalf that allowance should be made for his apparent difficulty at times in orientation and communication, and in answering questions directly, which was spoken to by others (his three support workers, in particular). Although no foundation was laid for any mental trouble, he may be given some benefit of the doubt.

8. Some of the discrepancies identified in the applicant's evidence were minor, or typical of multiple direct and indirect renderings of any account - for example, issues over dates and times of events (or claimed events) in Afghanistan, arising mainly from statements prepared on his behalf for his asylum case. Others might arise simply from being asked to disclose more - for example, the applicant's knowledge of his age when he began attending madrassa, and his father talking to him about his age on the way to obtain his taskera.

9. Taking account of the above, and having heard and reflected on his evidence as a whole, the applicant has not persuaded me that he is a reliable witness as to his identity, place of origin, or the circumstances which led him to travel to the UK. Some of the features of the evidence which have led to this conclusion are these:

(i) While being cross-examined about how he obtained his taskera, the applicant said, "When I left home and was in bad health, I tried to call my uncle to come home, and he told me I can't come home". I was minded to follow this up, to find out whether the applicant meant his home and uncle in Afghanistan or with his foster-carer in the UK, to whom he had referred at times as "uncle". I confirmed my note of the evidence with counsel, not mentioning the reason. The applicant then said that he had not called anyone, and had not said "uncle", flatly contradicting his evidence of moments before. This I took as back-tracking to escape a point of difficulty, and an indication of unwillingness to give honest evidence.

(ii) When cross-examined about his home village, the applicant would not be drawn about its size, "Not that big, it's small", or population, "Several houses, a mountain, a desert, a river, how would I know the number of houses?" I asked if there were more than 10 houses, or fewer, to which he answered, "I haven't counted them". Counsel interjected that there had been no evidence of the applicant's ability to count, but it was apparent from the rest of his evidence that he can count in simple numbers, and he said later that he could count to at least 100 in Pashtu. Counsel submitted that the applicant's knowledge of his village had not been explored in any detail, so lack of knowledge should not go against him. The witness Fazal Orykhel said he is from the same village, and described it thus: it is in two parts, upper and lower; the houses are quite scattered; population unknown, but about 100 houses, inhabited by those with money; others live in tents. He volunteered the information that although it is his ancestral village, his family left at the time of the Russian invasion, and he was born and brought up in Pakistan. He has visited the village only once or twice, the last time when aged about 10. Despite that, his evidence about the village was much more illuminating, and belied the feeble description by the applicant, who claimed to have lived there from birth until he was forced to flee. From both his unwillingness and his inability to describe the village, I am not satisfied that he is a truthful witness about his place of origin.

(iii) In the account of events leading to his flight given prior to the hearing, the applicant said that his father and his brother had been killed, and his mother had been shot in the foot or in the leg. The respondent sought to make something of the latter discrepancy, although I would not have found it very significant. Several times in his oral evidence the applicant referred to his mother and father both having been killed. This was drawn to his attention in re-examination, when he corrected himself to say that his father and brother were killed, and his mother shot in the foot. He appeared to find the matter of no moment. I find that whether his mother was killed is much too important for self-contradiction in an honest account.

(iv) The applicants' foster-carers reported that his name was not Shakir Oryakhail but Shakir Khan. He said that his foster-carers had simply adopted another form of address. That is possible, but would not explain why it was thought to be his real name. The package in which the taskera was received was addressed to the applicant as Shakir Oryakhail Rohani. The witness who assisted, Fazal Orykhel, suggested that R was part of the sender's name, but his account made no sense of why Rohani appeared as part of the applicant's name. The evidence for the respondent included a revealing account of the applicant being taken aback when this was pointed out. Taking these points along with other reasons to doubt his evidence, I am not satisfied that Shakir Oryakhail is the applicant's true name.

(v) The applicant explained how he obtained his taskera indirectly from his family in Afghanistan, yet he had no apparent interest in any other communication with his mother or anyone else since he left. Against the claimed background and the natural strength of family ties, this is a strong indication that he is not giving a reliable account of the circumstances which led him to leave or the state of communications since.

10. I bear in mind (a) that although not generally credible the applicant may be reliable about his age and (b) that he may be underestimating his age, yet still have been a minor when he entered the UK.

11. The applicant has repeated himself often about his age and the ages of his relatives, without varying those ages, even when clearly directed to points of time years after he left Afghanistan. He suggested in cross-examination, and it was submitted for him, that he was unable to tell the difference, in effect that he was unable to see that the passage of 3 years meant the addition of 3 years to his own age, and to the age of his "younger brother", or of anyone else. That interpretation did not correspond with the rest of his evidence, in which he understood such simple matters as the passage of time, the sequence of events, and the progression of his own age. He appeared sullen and recalcitrant when pressed. I conclude that he has been primed to stick to the prepared story that he was aged 14 years and 8 months when he left Afghanistan. Hence, this is the one feature on which he has been remarkably consistent, even when it draws him into giving evidence to the effect that his relatives' ages are fixed rather than changing over time, and into resisting the charge of inconsistency with a false claim of inability to perform very simple arithmetic.

12. My finding of lack of credibility therefore extends to what the applicant says about his age.

13. The taskera is not a strong piece of evidence for the applicant, even at face value. It is at best the rudimentary impression of an Afghan official who saw the applicant once.

14. Even if it is a genuinely produced document, the terms of the taskera are likely to have been influenced by information from the applicant and his relatives, that is, by what they wished or expected the document to say.

15. The description on the taskera of the applicant as a labourer does not fit with his evidence or his claimed age.

16. The obtaining of the taskera was spoken to by a witness, Fazal Orykhel, whose other evidence tended to undermine the applicant's case rather than to support it. I am not satisfied that it was produced or come by as claimed.

17. The taskera does not significantly advance the applicant's case.

18. Susan Hume is a social worker, employed by Croydon as an Independent Reviewing Officer from November 2014 to July 2016. Many of the reviews for which she was responsible concerned young unaccompanied asylum seekers. She has not conducted age assessments. She met the applicant twice, and chaired the first review of his case. She fairly accepted some points put to her in cross-examination, principally these: physical appearance can be misleading; the reported view of the applicant's age by a police officer who brought the applicant home late at night was based on one brief encounter; a 15 year old might be equally or even more rather than less likely than an 18 year old to "test the boundaries"; and the applicant's association in foster care with a cannabis-smoking "bad influence" was a matter which had not been brought to her attention, but if that was the case, it ought to have been. She maintained her view of the applicant's age, which she said was based on "a constellation of factors", not on one alone.

19. I find that the evidence of Susan Hume tends significantly to support the respondent's position.

20. Giulia Gosi, the applicant's litigation friend, and two other support workers gave evidence which may be treated together. They all considered that the applicant finds orientation and communication difficult, presents as a vulnerable person, and going by his behaviour and associates is a young person, no older than he says. They all have worthwhile experience in these matters but they do not purport to have expertise in age assessment. They fairly accepted that their role is to help the applicant in achieving his goals.

21. The support workers all saw the applicant in a particular and sympathetic context, designed for his assistance. He behaved with them as might be expected under those circumstances. The rest of the evidence went to showing the applicant in various other circumstances. Clearly, like most people, he presents in different ways in different situations.

22. The evidence of the support workers was straightforward and honest, but it was also limited, and it leant distinctly in his favour. It helps his case, but is readily outweighed by other evidence.

23. The thrust of the cross-examination of the respondent's witnesses Jeff Williams and Amaal Ally and of the submissions about their evidence was that they began with the view, adopted from the applicant's foster carers, that he was at least 18; that everything encountered thereafter was interpreted to confirm that view; and that although the "Merton" formalities were observed, there was nothing the applicant could have done to change it. That was a legitimate line of argument, and it did emerge that many behaviours might equally be analysed as disclosing either an older or a younger age group - in particular, that children and adults both make unwise decisions, and have associates of various ages. However, the witnesses were careful not to take flimsy matters against the applicant - for example, hints, perhaps malicious, and known only at second or third hand, that he has a daughter in Afghanistan; and they were willing to accept that some (minor) points ought not to have been interpreted as they were - for example, on full reading of the evidence there was no reason to take it against the applicant that he had not named the grandparent who is mentioned on the taskera. Both witnesses said that although they accepted a few criticisms, they stood by their assessment. They impressed me as conscientious witnesses. I do not accept that they proceeded by way of unshakable prejudgments.

24. I find the respondent's age assessment to have been methodical, professional and reasoned. It does not have scientific accuracy but the evidence going the other way is only that of the support workers, of comparatively little weight, and the taskera, of very little or no weight. The evidence of the applicant and of Fazal Orykhel goes against rather than in favour of his case. The age assessment is the best evidence by a distance.

25. The assignation of a date of birth remains a conundrum, but making the best I can of the evidence as a whole, I select 1 July 1997. By that token, his 18th birthday was shortly before he landed in the UK.

26. On that assessment, no other matters need to be resolved.

27. The judicial review application is dismissed.

28. The applicant has not sought permission to appeal to the Court of Appeal, but I am bound to deal with the matter. The case involves only an assessment of the facts. It raises no issue which might qualify for the attention of the Court. Permission is refused.

29. There is no further need to preserve anonymity, so the order previously made is discharged, and this decision has not been anonymised.

30. The applicant is to pay the respondent's costs of this application, subject to detailed assessment if not agreed, and subject to determination of his ability to pay such costs pursuant to section 26 of the Legal Aid, Sentencing & Punishment of Offenders Act 2012.

31. I am obliged to both counsel for their assistance throughout the case, including the finalisation of this decision.

UT Judge Macleman
16 August 2017

Applicant's solicitors:
Respondent's solicitors:
Home Office Ref:
Decision(s) sent to above parties on:

Notification of appeal rights

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

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

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