Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

JR/12123/2016

Field House,
Breams Buildings
London
EC4A 1WR

10 - 12 April 2016

The QUEEN ON The application OF

FA
Applicant

and

LONDON BOROUGH OF EALING
Respondent

Before

UPPER TRIBUNAL JUDGE Pitt

Ms Christie, instructed by Simpson Millar Solicitors appeared on behalf of the Applicant.

Mr H Harrop-Griffiths, instructed by the London Borough of Ealing appeared on behalf of the Respondent.

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ON AN APPLICATION FOR JUDICIAL REVIEW

APPROVED JUDGMENT
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JUDGE Pitt: 1. This decision resolves the disputed age of FA, an Afghan national. FA maintains that he was born on 24 June 1999 and at the time of an age assessment decision made by the respondent on 9 September 2016 he was 17 years and 3 months old. The respondent maintains that as of the date of the age assessment decision the applicant was at least 18 years' old.
Background
2. The applicant maintains that he is from a middle-class, well-connected family, his grandfather having worked for the government at a very high level. He maintains that he left Afghanistan in 2015 with his family but was separated from them on the Iran/Turkey border. He was taken by an agent through Europe and accepts that he was fingerprinted in Hungary although he does not think he claimed asylum there. It is common ground that he arrived in the UK on 30 September 2015 and claimed asylum. The appellant maintains that he was 16 at that time and that, when asked, this was the age he gave to Immigration Officers on arrival.
3. The applicant was initially accommodated by the Home Office in adult National Asylum Support System (NASS) accommodation. He left that accommodation on 30 October 2015 and began living with his aunt, AA, and her family in Camden. In approximately November 2015 he maintains that AA obtained his taskera, an Afghan identity document, from Afghanistan. On 24 April 2016, the applicant was accommodated in adult NASS accommodation in Southall, having left his aunt's accommodation.
4. On 11 January 2016 the applicant had a further initial contact interview with the Home Office which recorded that at the time of his arrival in Dover his account had been that he was 16 years' old. Thereafter the applicant applied to the London Borough of Ealing to be accommodated as a minor. This led to a first age assessment interview on 12 July 2016 after which the Local Authority agreed to support and accommodate the applicant under Section 20 of the Children Act 1989. On 4 August 2016 the applicant had an initial health assessment with a doctor.
5. On 30 August 2016 a second age assessment interview took place. At the end of that interview the applicant was given six reasons why the Local Authority did not accept his claimed age. On 9 September 2016 a formal decision was provided in which the Local Authority concluded that the applicant was "older than 18 years of age". On 11 October 2016 the respondent stopped accommodating the applicant as a child and he went to live with his aunt again.
6. Also on 11 October 2016 the applicant lodged a judicial review of the refusal to accept his claimed age. On 14 October 2016 the Administrative Court granted permission to judicially review the age assessment decision of 9 September 2016. The Administrative Court also ordered the Local Authority to treat the applicant as a child and accommodate him under Section 20 of the Children Act 1989 in the interim. The claim was then transferred to the Upper Tribunal for this age assessment decision to be made.
The Age Assessment Decision dated 9 September 2016
7. The Local Authority's age assessment decision dated 9 September 2016 is at D118 to D120 of the bundle of materials. It states as follows, verbatim:
"Re Assistance under children Act 1989
I write to inform you that we have now completed our age assessment and we the assessors are of the opinion that you are older than your given date of birth. We have based our decision on our experience of working with children, evidence from other professionals, external agencies documents and finally observing your behaviour, mannerisms and body language, inconsistencies in your account. We have taken into consideration your taskeria you have iin your possession.
An age assessment conducted on 12 July 2016 of which a copy is enclosed. Our conclusion has reached using some of the following:
We the assessors have reached this conclusion and have aged disputed FA for the following reasons:
"1. FA left a safe loving environment and showed a high level of maturity in reaching this decision, by leaving the home of his auntie to pursue an unknown outcome and accommodation, i.e. both FA and his aunt confirmed that he left her home of his own accord.
2. During the age assessment process you have presented as a mature manner which leaves us to conclude that you have the emotional IQ of someone much older than 18 years of age, i.e. FA was self-assured in his responses. He was calm and relaxed in the presence of adults. Also his key worker commented on FA mannerism.
3. FA was age disputed by the Home Office and although not Metron compliant, the assessors are of the opinion that there are sufficient reasons which suggest there are merits in their decision i.e. FA physical appearance strongly suggests he is older than 18 years old.
4. FA refused a medical age assessment (DAE) saying that he did not belief in the accuracy of dental age assessment. The assessors felt that this demonstrated a maturity of being able to take this stance and have this belief.
5. The contributions from other agencies were considered and whilst the Red Cross accepted your age, the other agencies (Tavistock and key worker) have made reference to FA being "mature & young man" (Tavistock) and "FA's overall appearance and how he engages in conversations as well as the answers he gives makes me feel he is of a mature age" (Key worker).
6. We consider FA taskeria and consider its content. The information contained about your DOB is based on physical appearance. We have taken into account that you may have been young or older at the time it was issued, therefore it's not an accurate source of information regarding your claimed age, i.e. the English translated version of the tazkeria concludes that FA age is "based on his physical appearance, age is established as (13) thirteen years old in the year of 1391".
8. There were a number of reasons why I concluded that the reasons provided by the respondent attracted little weight.
The First Reason
9. The first reason given by Local Authority for finding the applicant to be over 18 is that he chose to leave his aunt's home and pursue independent accommodation, indicating a high level of maturity.
10. It has always been the evidence of the applicant and his aunt that he left his aunt's home because it was extremely unsuitable and he was not receiving his NASS payments regularly so was struggling financially. His aunt and uncle lived in the flat with their two small children. The only spare room was unfit for habitation, being damp and mouldy. The photographs provided showed clearly that this was so. The applicant therefore had to sleep on the sofa in the living area. This was far from ideal as it was a small flat so, for example, the children had to get dressed for school in the room in which the applicant was sleeping.
11. The Local Authority maintained that the aunt had said in her evidence that the applicant had made his own decision to leave and that he wanted "more independence". I was referred to a transcript of a telephone conversation with the aunt at D1/42 of the bundle. This records that the aunt stated to Mr Dean, the lead Social Worker conducting the age assessment that "we had no problem but it was he decided to be on his own". There was no reference there or elsewhere in records of conversations with the aunt or her witness statements to the applicant wanting "more independence". In the context of the clearly inadequate circumstances in which the applicant had to live at his aunt's house, it was not my view that this comment was in any way inconsistent with the applicant leaving because of the very difficult circumstances in the flat.
12. It was accepted by Mr Dean in his oral evidence that the information about the flat being very inadequate was not before the Local Authority when the decision on age was made. He accepted that the spare room in the aunt's flat was clearly unfit for habitation and that the applicant left his aunt's home not because of an independent and mature wish to do so but because of the significant difficulties with the accommodation.
The Second Reason
13. The Local Authority's second reason for finding the applicant to be 18 or above at the date of the age assessment was that the applicant had a "mature manner", referring to him as "self-assured in his responses". The view of his key worker was cited as one of the reasons for this conclusion.
14. The applicant's response to this part of the decision is that he had not seen his key worker very much at that time and that the key worker was not well-disposed towards him. In my judgment, the applicant's view is supported by the comment recorded in his initial health assessment conducted on 4 August 2016 which is at D22 of the bundle which states that he showed low mood, reported having little contact with his key worker and had received no help in learning how to shop or prepare food. Mr Dean accepted in his oral evidence that this document had not been taken into account when the decision on the age of the applicant was made.
15. Mr Dean also accepted in his evidence that where the applicant is from a middle-class family and is well-educated this could be a plausible explanation for the applicant's ability to appear mature, to behave appropriately such as having a firm handshake and so on.
16. Further, following case law such as AM v Solihull MBC [2012] UKUT 00118, it has been the settled approach for some time that evidence from those who have longitudinal knowledge of an applicant is likely to be more useful in assessing age than those who deal with him mainly in the formal age assessment process and interviews.
17. I therefore found that the opinion of Ms Tindall, the applicant's keyworker from October 2016 to March 2017 and Mr Briggs, his teacher from November 2016 to the present was of assistance. This was additionally so where Mr Dean, in his oral evidence, accepted that they had spent significantly more time with him than Social Workers for the respondent. Ms Odusanwo, the second social worker involved in the age assessment, also accepted in her oral evidence that Ms Tindall and Mr Briggs knew the applicant much better than she did, her interactions outside the formal age assessment process consisting of pleasantries when she was present when he was collecting his funding.
18. The evidence of Ms Tindall and Mr Briggs was that the applicant's presentation indicated that he was likely to be the age he claimed, if not younger, and not an adult. Both gave oral evidence that was entirely consistent with their witness statements.
19. Ms Tindall confirmed that she worked with the applicant for at least five hours a week, meeting him in his accommodation and also speaking to him relatively often on the telephone. She confirmed that when she first met him his independent living skills were nil and that she had to support him in learning how to shop, cook, clean and so on. She considered that his level of neediness was notably different from other teenagers who would want to be more independent whereas he looked for support a great deal from her and others. She also considered that the applicant's manner when he presented to others and the way he dealt with other people was not because of maturity but because of his upbringing and the moral standards that he had lived with and which he wanted to live up to having been separated from his family. Her evidence as to the applicant presenting very differently to older asylum seekers with whom she had worked was equally clear and objective. Her view of the applicant's age was that he seemed, if anything, to be younger than his claimed age.
20. It was suggested for the Local Authority that Ms Tindall was likely to be sympathetic to the applicant's position given her relationship with him. In my view her evidence was very clear and objective, Ms Tindall appreciating the difficulty in assessing someone's age. In my judgement, her evidence was not based on an inappropriately sympathetic view of the applicant.
21. Mr Briggs' evidence was that the applicant presented in line with the other 16-18 year olds in his class. Nothing about him suggested other than that he was the age he claimed. He gave a similar view to that of Ms Tindall as to the applicant being somewhat sensitive and this indicating that he was in the lower age range of the students in his class. Given the difficulties in assessing age, he accepted that the applicant could be 19 years' old but his view was clearly that overall he considered the applicant to be under 18 years' old.
The Third Reason
22. The respondent's third reason for finding that the applicant was aged 18 or over was that the Home Office had found him to be over 18. I did not find this part of the respondent's decision to be at all sound.
23. Firstly, it is accepted for the Local Authority that the Home Office did not conduct anything akin to a "Merton" compliant assessment.
24. Secondly, the Home Office interview dated 30 September 2015 relied upon by the respondent is notably flawed and, in my view, an unreliable source for assessing the applicant's age. The interview record is at Tab F2 of the bundle. It records that the interview commenced at 16.30pm and ended 24 minutes later at 16.54pm. It was accepted by Mr Dean in his evidence that this is not long enough to assess someone's age. The interview record, unaccountably, has "N/A" for the applicant's name and date of birth. It records that the applicant told the interviewing officer that he was worried, that he could not sleep, that he was not able to think properly and could not think well at that time, the interview being conducted soon after he entered the country after travelling across Iran, Turkey and Europe in the hands of agents. The applicant's fitness for interview on arrival is not stated as something taken into account by the Home Office or by the respondent when seeking to rely on the Home Office's view of the applicant's age.
25. Also, following the interview on arrival, the Home Office completed a Form IS97M dated 30 September 2015. This document is at F11 and F12 of the bundle. It states initially that the applicant's physical appearance and demeanour did not "very strongly suggest that you are over 18 years of age" and that he would be treated as a child but then goes on in the third paragraph states that applicant's physical appearance and demeanour did very strongly suggest that he was over 18 years' old. It refers to the applicant having claimed his date of birth to be both 1 January 1997 and 1 January 1998. In addition, it is now well established that relying on appearance and demeanour to assess age is unreliable and should not, alone, be the basis of an age assessment; see, for example, R (NA) v LB Croydon [2009] 2357 at [27] and AM v Solihull at [19].
26. The Home Office also provided a BP7 report which is at F39 of the bundle. This has a box ticked to indicate that it was the applicant's physical appearance and/or demeanour which led to the assessment that he was over 18; see above for comment on this approach. The document is not signed or dated. It does not indicate the name of the officer although it has a printed space for this information to be included. The section for the applicant's response to the decision that his age was disputed is blank. The section for the respondent's reasons for maintaining the disputed age decision after the applicant's comments is also blank. It is difficult to see how such a partial document could form the basis of a reliable age assessment decision.
27. Mr Dean accepted in his oral evidence that these documents were not correctly filled out. He also accepted that the documents did not show that the Home Office had followed its own internal policy of not making a decision on a disputed age assessment without a "second pair of eyes". Mr Dean also accepted that it is common for the respondent in situations where the age of an applicant is not clear to choose the date of 1 January as working practice and accepted that the applicant was unlikely to have done so. Mr Dean accepted in his oral evidence that it would be "highly unlikely" that the applicant had given dates of birth of either 1 January 1997 or 1 January 1998 to the Home Office.
28. In the light of all of these accepted shortcomings in the Home Office documents, the respondent's third reason for finding the applicant to be an adult is not a reliable one.
The Fourth Reason
29. The Local Authority's fourth reason is that the applicant refused to have a medical age assessment, specifically, a dental age assessment. It was felt that this showed the maturity of someone aged 18 or over. Again, I found that the respondent was not entitled to draw such an inference.
30. Mr Dean maintained in his evidence that in his initial meeting with the applicant at the applicant's NASS accommodation that the applicant had agreed to have a medical assessment. That may or may not be so; there is no record of that conversation. It remains the case that the applicant's position thereafter is very clear. He was advised by his solicitors not to undergo the dental age assessment and refused to do so, on the basis of that advice.
31. Mr Dean accepted in his oral evidence that it was entirely proper for someone, whether a minor or not, to follow a solicitor's legal advice. He also accepted also that where the solicitors here had informed the applicant why a dental age assessment was not considered to be reliable, an intelligent, well-educated teenager would be able to form his own independent opinion and decide that he did not want to undergo a dental age assessment. That evidence appeared to me to reduce significantly the reliability of the respondent's fourth reason for finding the applicant to be an adult.
32. I noted the evidence of Ms Odusanwo that the applicant being clear that he did not want to undergo a dental age assessment was not typical of a minor who would be more likely to "bend" if the Local Authority suggested an age assessment. She considered that the applicant's refusal to "bend" in this matter, and others, suggested to her that he was an older person. I was a little troubled by the proposition that Local Authority Social Workers would still expect a potentially minor applicant to "bend" as regards a dental age assessment after receiving legal advice specifically to the contrary. I preferred the evidence of Mr Dean on this point and, in my view, the respondent was not entitled to take the applicant refusing to undergo a dental age assessment as something showing him to be an adult or older than he claimed.
The Fifth Reason
33. The Local Authority's fifth reason for finding the applicant to be aged 18 or over is that the information from the Tavistock Centre and the applicant's first key worker suggested that to be so. That reasoning is undermined because it misstates the evidence from the Tavistock Centre. That evidence is at D33 of the bundle. It states on the first page that "it is difficult to judge FA's age due to the complexity of his situation". It stated that the applicant "presented as mature in some ways and less developed and vulnerable in others", mentions twice that it was "plausible that he is still a child" and refers to his presentation being "appropriate in light of his status as a refugee and other unaccompanied minors we have met in this service". At D34 the report states that "it may be important to consider FA's vulnerability as an unaccompanied minor", suggesting that it was the psychologist's view that the applicant was under 18.
34. The view of the Tavistock Centre, overall, in my view, was that the applicant was likely a minor, not that he was an adult.
35. Further, as in the discussion above of the respondent's second reason, the reliance on the view of the applicant's first key worker omitted consideration of the potentially material evidence from the applicant, supported by comments he made in his initial health assessment, that they did not see each other very much and that the key worker was hostile towards him.
The Sixth Reason
36. The respondent's final reason for finding the applicant to be 18 or over is that it was concluded that little weight could be placed on his taskera or identity document.
37. The Local Authority's position on the taskera in the age assessment decision has to be undermined by the fact that, unfortunately, it was based on a materially inaccurate translation. It is common ground now that the taskera states not that the applicant's age had been assessed "based on his physical appearance" but that it was found to be his age "according to the registration records". It is of note that an interpreter and the applicant did point out this mistake to the Local Authority prior to the decision being made but their concerns were not taken any further.
38. Mr Dean accepted in his oral evidence that the correct translation put a different light on the taskera and that if the correct translation had been available it could have made a difference to the Local Authority's assessment of the applicant's age.
39. I was also provided with written and oral evidence on the applicant's taskera from Mr Jawad Zadeh. Mr Zadeh is originally from Afghanistan and, after coming to the UK, returned to spend extended periods of time there working for international humanitarian agencies. He has carried out a number of assessments of taskera documents. His experience indicated to me that he had the expertise to provide an opinion on the applicant's taskera.
40. Mr Zadeh's opinion, after studying the physical aspects of the taskera as well as what was written on it, was that it was a genuine document on which weight could be placed. He confirmed that the form used was the correct form, that the format and stamps endorsed on the document were in the correct format and that nothing about the appearance or contents of the document suggested that it was not genuine.
41. Mr Zadeh also confirmed that the applicant's evidence as to when and how the document was obtained for him by his father was consistent with general practice in Afghanistan.
42. A significant dispute arose during cross-examination, however. Mr Zadeh was asked about the line of the taskera which stated:
"Volume No.: 2nd Q 1392 Page No.: 133 Entry No. 683"
43. In submissions, the respondent maintained that Mr Zadeh's initial comments on the number "1392" in this line was that this was the year of the registry book in which the taskera was recorded. This was of significance because the taskera elsewhere indicated that it was issued and entered in the registry book in 1391.
44. It was submitted for the respondent that when asked to clarify this, Mr Zadeh used a "diversionary tactic", querying the calligraphy of the entry and whether it was 1392 or 1391. It was maintained that he then changed his earlier evidence, stating that the use of 1392 in this line did not represent a year. It was a number in a sequence allocated to the registry book for 1391 and not generated with reference to a particular year.
45. As this was clearly a matter of some concern to the respondent at the close of the hearing it was agreed that my record of proceedings and those of two lawyers from the applicant's legal representatives containing this part of Mr Zadeh's evidence would be circulated in order to establish exactly what was said, the respondent not having made a note. Also, as requested by the respondent, I listened again to the recording of the hearing at this point of Mr Zadeh's evidence.
46. Having taken those actions, my conclusion on Mr Zadeh's evidence is that there was no inconsistency or "diversionary tactic" that should lead to his evidence being found unreliable or to the taskera being found to be a forgery.
47. Mr Zadeh's evidence confirmed that the taskera was issued on 26 May 2012. It stated that the applicant's date of birth was 24 June 1999. It also stated that as of the year of issue of the taskera, 2012, the applicant was 13 years' old.
48. Mr Zadeh went on to state that the applicant's taskera was logged in the registry book which was being used that year, in the second volume. The number of the registry book being used in that year was 1392. At no point in his evidence, however, did he state that the number of the registry book was or should be the year in which it was being used. The confusion appeared to me to arise, in part, from the complicated system used for issuing a taskera and registering that document. It also arose from the use of the term "yearbook". This term was initially used by Mr Harrop-Griffiths in his questions to Mr Zadeh but without it ever being clarified that this term meant that the registry book number was that of the year in which it was being used. Mr Zadeh responded by using the term to refer to the registry book but without ever expressly indicating that he meant that "1392" in the line set out above was a reference to a year at all. He was very certain when the point was put to him that he had not done so and that the use of "1392" in this part of the taskera was not a reference to a year.
49. Having read, listened to and thought about the evidence on this point very carefully I do not accept that Mr Zadeh ever indicated that the registry book in which this taskera is stated to be issued was allocated the year 1392 by way of an identifier rather than just the number 1392. His concerns about the calligraphy of this number (and others) on the document appeared to me to be an indication of his very detailed approach to his assessment of the document and not an attempt to divert attention away from an inconsistent entry.
50. I noted that this conclusion leaves a somewhat striking coincidence as to the registry book allocated the number 1392 being used in the year 1391. I thought about that coincidence carefully when considering the reliability of the evidence of Mr Zadeh and the reliability of the taskera. When considered against all of the materials before me, it was not my view that this coincidence was capable of undermining the evidence of the applicant, his aunt, Mr Zadeh, Ms Tindall and Mr Briggs as to the applicant's age and or the reliability of the taskera.
51. It was also argued in submissions that the entry on the front of the taskera as to the applicant being 13 when it was issued in 1391 and to the applicant also being 13 at the date of the attestation in 1392 on the reverse of the document were not consistent. Mr Zadeh's evidence on this is at [31] of his witness statement. He states:
"The attestation: Taskira documents issued in Afghanistan may be accompanied by an attestation on the reverse of the Taskira. An attestation is an extra layer of security whereby the organisations which use a Taskira document are assured that a Taskira is genuine. The attestation is not recorded automatically. It has to be requested by the Taskira owner or by his guardian or legal representative. If the date of issue of the attestation post-dates the date of issue of the Taskira then the attestation is correct. If it is the reverse, this is suggestive of forgery. In this case the date of issue is 06.3.1391 = [26.05.2012] and the date of attestation is 19.01.1392 = [08.04.2013]. The date order of the Taskira and its attestation is in conformity with Afghanistan's administrative standards. The attestation is for confirming the "assessed age" which appears in the front section of the Taskira. For instance, if the Taskira is endorsed 5 years after the date of issue, the newly recorded attestation still will confirm the information in the front section and it will not calculate the age at the time of attestation. The contents of the attestation in this Taskera confirm and are consistent with the information recorded in the front section, and the attestation appears genuine. This Taskira was issued on 26.05.2012 and the date of attestation is 08.04.2013. This date is after the issue date which is consistent with the practice of Taskera attestation.
52. Mr Zadeh's explanation is clear. The applicant's age was not recalculated as of 8 April 2013 when the attestation was endorsed on the reverse of the taskera. The attestation confirms that in the year that the taskera was issued the applicant was 13 years' old. There is no inconsistency, therefore. At the hearing he also clarified that the less stringent approach to age in Afghanistan meant that it would not be unusual for a taskera issued on 26 May 2012, a month before the applicant's actual birthday, to state that he was 13 years' old where he would be so in the year of issue and within a few weeks of issue. I saw no reason to doubt that comment in light of Mr Zadeh's overall very detailed and consistent evidence.
53. These being the only serious challenges to Mr Zadeh's evidence, I found that I could place weight on his opinion that the taskera was genuine. I found that Mr Zadeh's evidence undermined the reasons given in the age assessment for not placing weight on the taskera and supported the applicant's case, corroborating his evidence and that of his aunt as to his age and on the taskera.
54. Certainly, in isolation, there may be concerns about any document emanating from Afghanistan given the level of technology and disruption of civil administration the country has suffered for many years but the evidence of Mr Zadeh, the applicant and his aunt on this document is consistent and consistent with the other evidence of the applicant and his aunt as to why they maintained that he was born on 24 June 1999.
55. I should indicate before moving on from consideration of the taskera, that after the hearing had ended and the decision reserved, the respondent made an application on 28 April 2017 to be afforded time to find an expert to address the disputes considered above. I refused that application in a decision issued on 23 May 2017. A copy is appended to this decision.
Other Evidence
56. Set against what appeared to me to be significant shortcomings in the reasoning in the respondent's age assessment decision, the evidence of the applicant and his aunt was generally consistent and credible and to be preferred.
57. The applicant has stated in all of his various accounts either that he was 16 on arrival or that his date of birth is 24 June 1999. He gave a credible explanation of how he knows this, being able to link it to stages of his education. His evidence as to the stages of his education and age at those times is consistent with country evidence.
58. The applicant's oral evidence was consistent, even after extensive cross-examination. He confirmed that he started school between the age of 6 and 7. He confirmed that he remembered his grandmother arranging a birthday party for him when he was 8 or 9 years old but could not remember any others for him and only one other for his younger brother when that brother was much younger. He indicated that he only found out his own age when he needed a taskera in order to sit some exams to obtain free private tuition. He was in year 8 or 9 at school and went home and asked his father for his taskera which his father provided. He confirmed that at this time he was not living in the family compound but was in Char-e-Barakat. His aunt had obtained the taskera for him after he had come to the UK.
59. I did not find that much could hang from the applicant having been recorded as an adult in Hungary given that it is not disputed that he was travelling with an agent who was being paid to get him to the UK rather than being taken into the system for minors in an interim country.
60. The applicant's aunt was consistent as to remembering when the applicant was born as it was during a period when she was unable to attend school because the Taliban had taken over their home area. This was consistent with the country evidence albeit the Taliban were dominant in Mazar-e-Sharif for a number of years and not just in 1999. Her account was consistent with her being 12 or 13 years of age at that time and living in the same family compound with his family. She and the applicant were consistent as to his family moving out of the compound during his childhood. I did not find that anything could turn on the aunt not referring in her initial statement, taken by telephone in support of an interim injunction, to the applicant living in the same compound. Both the aunt and her husband were consistent as to the applicant attending their wedding when he was aged approximately 9 years old.
61. The applicant's aunt was also able to give further corroborative evidence as to the relatively high status of the family and how the applicant would have been brought up to present himself very properly to adults and would have been well-educated in Afghan terms. As with the applicant, the evidence of the aunt also remained consistent after extensive cross-examination.
62. The aunt was also an important witness because it was she who obtained the applicant's taskera. Her oral evidence on this issue was entirely consistent with that she provided in her witness statements to the applicant's solicitors. When she realised that the applicant needed his taskera to prove his age, she contacted his mother's sister because she knew that she was close to the applicant's mother. This maternal aunt sent the taskera. The taskera was sent to the work address of her husband. He opened the package containing the taskera. AA's husband gave consistent evidence on the latter part of this account, including the fact that he had not thought to keep the envelope in which it was sent.
63. The respondent identified a number of concerns about the evidence of the applicant and his aunt, such as the plausibility of the maternal aunt being able to locate the taskera. Where the reasoning in the respondent's age assessment was relatively weak, however, it was my view that the evidence of the applicant and his aunt over a number of statements and after being cross-examined was, by comparison, more reliable.
64. I did not find that the evidence of Mr Francisco Jeff could assist the applicant a great deal, notwithstanding Mr Jeff's extensive experience working with unaccompanied minors. He had limited direct knowledge of the applicant, and his opinion could not take matters further than the evidence of Ms Tindall and Mr Briggs.
65. I also did not find that anything of much import could arise from the photographs relied upon by the applicant, obtained by his aunt from her sister and said to have been taken whilst he was in Afghanistan. As above, it is not appropriate to draw inferences from appearance and although the dates that the photos were uploaded to the internet was given, the dates that they were taken was not documented.
Conclusion
66. For these reasons, I found that the evidence before me indicated that the applicant was born on 24 June 1999.
Costs
67. The applicant has been found to be the age he claims and he has therefore been entirely successful in this judicial review.
68. The respondent is to pay the applicant's reasonable costs, to be assessed if not agreed.

Appeal to Court of Appeal
69. There was no application for permission to appeal to the Court of Appeal from the respondent. I am required to consider such an application following Rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008. I refuse permission to appeal to the Court of Appeal where the reasoning set out above is not show to contain legal error.
Signed: Dated: 28 June 2017
Upper Tribunal Judge Pitt

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

Appendix - Decision dated 25 May 2017 refusing extension of time for respondent to obtain expert report

JR/12123/2016

Upper Tribunal
Immigration and Asylum Chamber

Judicial Review

The Queen on the application of FA
Applicant
v

London Borough of Ealing
Respondent

Interim Decision

Decision of Upper Tribunal Judge Pitt: the Respondent's application for an extension of time to locate an expert to prepare a taskera report is refused

(1) The Respondent applies for an extension of time of 14 days to identify an expert to provide a report on the Applicant's taskera document. The application is made in the context of the case having been heard on 10-12 April 2017 and the decision reserved at the end of the hearing.

(2) In these proceedings the Applicant relied on written and oral evidence on his taskera document from Mr Zadeh. Mr Zadeh's main report was served on 31 January 2017. His addendum report was served on 29 March 2017.

(3) The Tribunal has a copy of email correspondence dated 25 January 2017 between the parties showing agreement to the Respondent having an extension of time of 21 days from 30 January 2017 until 20 February 2017 to serve any expert report in response to that of Mr Zadeh. The Respondent did not provide such a report.

(4) The current request appears to arise from oral evidence given by Mr Zadeh. It was open to the Respondent to apply for the hearing to be adjourned to obtain a taskera report if concerns arose during oral evidence. The Respondent did not do so.

(5) The application for an extension of time to find an expert to provide a report confirms that as of 28 April 2017, over two weeks after the hearing, no expert witness had indicated to the Respondent that a report could be provided.

(6) The Tribunal must consider the request for time to be extended in the context of the overriding objective in Rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the need for cases to be dealt with justly and fairly. The history set out above indicates that the Respondent had sufficient time prior to the hearing to provide a report on the taskera but did not do so. It is additionally unarguable that the Respondent had a fair opportunity to provide evidence on the taskera prior to the hearing where it was an issue addressed specifically in correspondence and the Applicant agreed time to assist the Respondent for this express purpose. It was also open to the Respondent to make an application to adjourn the hearing to obtain a report prior to the close of proceedings on 12 April 2017 but no application was made.

(7) Further, the application is stated to be only for time to find an expert. If granted and an expert located, there would inevitably be a further application for time for a report to be prepared and for the Applicant to comment on any report. The application is therefore, in reality, one for an unspecific and potentially extensive period of time for evidence which the Respondent has already had the opportunity to provide or apply to provide.

(8) In all the circumstances, the Tribunal does not find, where the Respondent had a fair opportunity to obtain a report prior to the hearing and to apply to find an expert to provide one prior to the decision being reserved, that it is appropriate or in the interests of justice to extend time for that purpose now. The case can be dealt with fairly and justly without granting the application.

(9) The application for an extension of time to locate an expert to provide a report on the Applicant's taskera is refused.

Signed: Signed on: 3 May 2016
Upper Tribunal Judge Pitt

Dated:

Sent to the Applicant, Respondent and any interested party / the Applicant's, Respondent's and any interested party's solicitors on (date):
Home Office Ref: