JR-2023-LON-002636

• Status of case: Unreported
• Hearing date: 20 Jun 2024
• Promulgation date: 31 Jul 2024
• Publication date: 8 Oct 2024
• Last updated on: 8 Oct 2024

The decision

JR-2023-LON-002636

In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review


In the matter of an application for Judicial Review


The King on the application of


NA (anonymity ordered)



Applicant

and





LONDON BOROUGH OF
HAMMERSMITH AND FULHAM



Respondent

ORDER



BEFORE Upper Tribunal Judge Blundell

HAVING considered all documents lodged and having heard counsel (Ms Butler, instructed by Wilson Solicitors LLP, for the applicant and Mr Swirsky, instructed by Legal Services Department of Hammersmith and Fulham Council, for the respondent) at a hearing on 18-20 June 2024

IT IS ORDERED THAT:

1. The Applicant’s date of birth is declared to be 23 October 2003.

2. The Respondent’s age assessment of 15 May 2023 is quashed.

3. The interim relief order of 2 November 2023 is discharged.

4. There shall be no order as to costs.

5. There shall be detailed assessment of the Applicant’s legal aid costs.

6. Permission to appeal is refused. No application for permission was made. The Upper Tribunal is nonetheless required by rule 44(4B)(a) to consider whether to give or refuse permission. There is no arguable legal error in the judgment.

Signed: Mark Blundell

Upper Tribunal Judge Blundell


Dated: 30 July 2024


The date on which this order was sent is given below


For completion by the Upper Tribunal Immigration and Asylum Chamber

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 31/07/2024

Solicitors:
Ref No.
Home Office Ref:


Notification of appeal rights

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

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

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


Case No: JR-2023-LON-002636
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

31 July 2024
Before:

UPPER TRIBUNAL JUDGE BLUNDELL

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Between:

THE KING
on the application of
NA
(anonymity ordered)
Applicant
- and -

LONDON BOROUGH OF
HAMMERSMITH AND FULHAM
Respondent
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Miranda Butler (instructed by Wilson Solicitors LLP), for the applicant

Joshua Swirsky (instructed by the Legal Services Department of Hammersmith and Fulham Council), for the respondent

Hearing dates: 18, 19 and 20 June 2024

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J U D G M E N T

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An anonymity order is in force. It has therefore been ordered that no one shall publish or reveal the name or address of the applicant or publish or reveal any information which would be likely to lead to his identification in connection with these proceedings.


Judge Blundell:

1. The applicant is an asylum seeker. He claims to be an Eritrean national who was born on 19 November 2005. By an age assessment which was formally completed on 15 May 2023, the respondent council decided that the applicant was an adult who was 25 years old at that time. The respondent accordingly assigned the applicant the estimated date of birth of 19 November 1997. That is the decision under challenge in these proceedings, for which permission was granted by Vikram Sachdeva KC, sitting as a Deputy Judge of the High Court.

Background

2. What follows is an outline of the applicant’s account, as relayed to the respondent and the Tribunal in connection with these proceedings and to the Secretary of State for the Home Department in the course of his pending application for international protection. Much of it is in dispute between the parties. Nothing of it has as yet been assessed by the Secretary of State.

3. The applicant is a Pentecostal Christian of Tigrinya ethnicity. He was born in Assab in Eritrea. He has never met his father. His mother died during his birth and he was raised by his maternal aunt.

4. The applicant’s parents and his aunt converted to Pentecostalism from the Orthodox Christian faith. His aunt had lived in Ethiopia for many years prior to his birth but she was deported from Ethiopia to Eritrea on account of her nationality in 2000. His aunt is an Amharic speaker. She is unmarried and suffered some stigmatisation on account of vitiligo and mobility issues.

5. The applicant’s home was raided during a prayer meeting in May 2010. His aunt was arrested and detained for three weeks, only being released when the applicant’s uncle paid a bribe. The applicant stayed with a friend of his uncle whilst his aunt was detained. His uncle had been afraid to take him in and his uncle’s wife was in any event a ‘radical Muslim’ who did not want to associate with a Pentecostal Christian.

6. The applicant and his aunt left Eritrea on 6 June 2010, on a small ship to Djibouti. They remained in Djibouti for a year. They were destitute there and were forced to beg to support themselves. They left in August 2011, and travelled to Ethiopia.

7. Whilst in Ethiopia, the applicant’s aunt found work in a domestic setting, working for a wealthy man of Ethiopian Tigray ethnicity who was involved in politics. The employer had a son, Henock, who was a few years older than the applicant. Henock was an undergraduate in the first year of his degree. Henock had some involvement in his father’s political activity. He had distributed leaflets for his father. The applicant helped him with that on occasion.

8. The applicant had no education in Eritrea or Djibouti. He was not able to attend formal schooling in Ethiopia because he and his aunt had no status there. He did attend a summer school organised by the YWCA, however, and he also received some informal tuition from Henock, with whom he enjoyed a close relationship.

9. The employer’s house was raided by the Ethiopian authorities during a political meeting. The employer and his son were arrested. The applicant and his aunt were able to escape to the home of the employer’s sister. They went from her house to the house of one of her friends where they remained in hiding. This woman learned that the authorities asked questions not only about the political activities going on in the house but also about the applicant and his aunt. She considered the applicant and his aunt to be at risk as a result and arranged an agent so that they could leave the country.

10. The applicant and his aunt travelled to Sudan with the assistance of the agent on 14 January 2021. They stayed there for around sixteen months. The applicant’s aunt worked as a housemaid again but she was concerned that Eritreans were being removed from Sudan. She sold her gold jewellery so that the applicant could leave the country with the assistance of an agent.

11. The applicant boarded a plane in Sudan in April 2022. He flew directly to France, using a passport to which he was not entitled, arriving on 15 April 2022. The applicant then travelled to the encampment known as ‘The Jungle’ before travelling in a lorry to the UK. That aspect of his journey was arranged by a man connected to the agent who had arranged the applicant’s passage from Sudan to France.

12. The applicant travelled to the UK with another asylum seeker and it was that person who took him to Hammersmith Police Station. He claimed asylum there on 27 April 2022. A screening interview was conducted immediately, in English. Additional representations including a Statement of Evidence form were made by his solicitors thereafter. The solicitors who have been representing him in the asylum claim are different from those with conduct of the age assessment proceedings.

13. The applicant stated at the police station that he was born on 19 November 2005. He was assessed by a duty social worker as being significantly over eighteen, however, and he was transferred to Home Office accommodation in Kensington. The applicant went to church whilst he was living there and met a man named Ralph Boer, who works for Hillsong Church. Mr Boer referred the applicant to solicitors (not Wilson Solicitors LLP) who he believed would be able to assist him with the age dispute. A Letter Before Action was sent to the respondent council on 27 July 2022 and a full ‘Merton compliant’ process was then undertaken.

14. The applicant was then transferred to local authority accommodation on 29 July 2022 and placed in a semi-independent placement in the respondent council’s area. He was accommodated with young people between the ages of 16 and 19 at this time. He was able to access education.

15. The age assessment took more than six months, from 7 November 2022 to 24 May 2023. The applicant was moved to adult asylum accommodation shortly thereafter. The Home Office attempted to transfer him to accommodation in Exeter on 2 June 2023 but he refused to go. On 25 August 2023, this claim was issued in the Administrative Court.

16. The Deputy Judge granted the applicant permission to proceed on 2 November 2023. He also granted interim relief, requiring the respondent council to treat the applicant as a person falling within s20 of the Children Act 1989 until 19 November 2023, and under s23C thereafter, pending the conclusion of the proceedings or until further order. On 4 December 2023, the claim was transferred to the Upper Tribunal for a fact-finding hearing.

The Decision Under Challenge

17. The respondent’s decision spans no fewer than fifty pages of A4. I do not intend to lengthen this decision unnecessarily by attempting a full summary. What follows will suffice to describe the process and the essential reasons for the conclusion that the applicant was significantly beyond his majority.

18. The assessors were Cornelius Ehimiaghe and Jackie Mcgeachie. Mr Ehimiaghe is a qualified social worker. Ms Mcgeachie is a senior social worker. Both have undertaken age assessment training. Ms Mcgeachie is said to be an experienced age assessor. Both have experience of working with young people. They met the applicant six times between 7 November 2022 and 13 March 2022. The interviews were conducted in Amharic, in accordance with the applicant’s wishes.

19. The assessors concluded that the applicant’s physical appearance and demeanour suggested that he had completed his developmental cycle a considerable number of years ago. A number of reasons were given for this, including the presence of lines on his face, a receding hairline, a prominent larynx and facial hair.

20. The assessors concluded that the applicant’s interactions during the assessment suggested that he was older than claimed. He remained calm and collected, with a courteous and polite manner and was able to advocate for himself.

21. The assessors considered there to be difficulties with the applicant’s account of having scant education in Africa when set against the fact that he had been able to study at a comparatively advanced level in the UK shortly after arrival. They noticed in particular that the applicant had been able to undertake studies in English without any need to take an ESOL course.

22. The assessors took account of the views of other people.

23. Ralph Boer of the Hillsong Church opined that the applicant was around 16-17 years old in July 2022.

24. Andrea Hazzard, a senior social worker from the respondent council observed that the applicant was able to interact with her in a calm and compliant manner and that he responded with confidence.

25. PC Aziz, who was also present at Hammersmith police station, was of the opinion that the applicant was in his mid twenties.

26. A Consultant Paediatrician named Dr Adebusuyi undertook the applicant’s initial health assessment on 14 October 2022 and noted, amongst other things, that he was healthy, that he had completed puberty, and that he wished to become a doctor.

27. Chris Ampofo, the manager of the accommodation into which the applicant moved in July 2022, considered the applicant’s appearance, demeanour and interactions to be consistent with that of a 17 year old. He thought that the applicant’s self-care skills were ‘typical of a 17 year old’.

28. Aine McCorry, a teacher employed by the respondent council, had met the applicant twice. Amongst other matters, she noted that the applicant was able to speak confidently when in adult company and that he had made exceptional progress in his education in a short space of time. She said that he was suitable for the provision offered, which was for ages 4 -18.

29. Nathaniel Boon, from Young Roots, had observed the applicant on Thursdays between August and November 2022. He considered the applicant’s appearance to be consistent with a person in late adolescence. He noted that a group of Amharic speakers who were in the 19-20 age bracket treated the applicant as a younger brother and that he was ‘not very confident mentoring himself’. His overall opinion was that the applicant was in late adolescence.

30. James Menghe was the applicant’s social worker. He had observed the applicant between August and December 2022. He made observations about the applicant’s confidence and his ability to advocate for himself. He noted that the applicant was committed to his education. He opined that he was between 18 and 20 years old.

31. The assessors reviewed these opinions and decided to give limited weight to those which suggested that the applicant was under eighteen.

32. A minded to meeting was held on 9 January 2023. A number of matters were put to the applicant. Concerns were expressed about the consistency of his account of why, when and how he had come to the UK and how he knew his date of birth; his level of education before he came to the UK; the opinions of professionals involved in his care about his age; and the applicant’s possession of a passport to travel from Sudan to France.

33. A second minded to meeting was held on 13 March 2023. The respondent council had by that stage been in contact with the Belgian authorities, who had confirmed that the applicant had not been fingerprinted there. The applicant stated that he had never been to Belgium in any event and that there had been a mistake in his SEF. It was suggested to the applicant that he had given inconsistent accounts about possessing a birth certificate and further concerns were expressed regarding his account of the passport he had used to travel to Europe.

34. Having taken into account all of this material, and what was said by the applicant and his solicitors, the assessors summarised their reasons for concluding that the applicant was in his mid-twenties at pp49-51 of their report. The seven points were as follows:

(1) The applicant was considered to have understated his level of education, given his ability to study without ESOL in the UK.
(2) The applicant had changed the account in his SEF by removing the reference to travelling through Belgium and being fingerprinted there.

(3) The assessors concluded that the applicant’s account of his journey to the UK had changed, particularly as regards the passport and the agent used.

(4) It was not credible that the applicant had fled the civil war in Ethiopia, given that he lived away from the war, in Addis Ababa.

(5) The applicant might have been ‘coached by unknown person(s) to claim that he is a minor’.

(6) The applicant had not contacted either the Pentecostal Church in Eritrea or the Immigration Department in that country so as to obtain proof of his date of birth.

(7) Aspects of the applicant’s physical appearance and demeanour suggested that he was older than claimed.

The Claim for Judicial Review

35. There were three grounds for judicial review: (i) that the applicant was in fact a child aged seventeen; (ii) that the respondent had erred in law in reaching the contrary conclusion; and (iii) that the respondent was unlawfully failing to provide support under the Children Act 1989. Despite the lengthy grounds of resistance which were settled by Mr Swirsky, the Deputy Judge granted permission, noting only that the claim ‘is arguable’.

The Documentary Evidence Before the Upper Tribunal

36. The trial bundle is voluminous and runs to just under 2000 pages. In addition to the procedural material and the statements from the witnesses on both sides (to which I will obviously turn in due course), there is expert evidence from the Helen Bamber Foundation. That evidence was augmented shortly before trial with further medical evidence from Dr Jan Falkowski.

37. The evidence from the Helen Bamber Foundation (“HBF”) arose as a result of a referral by Nat Boon from Young Roots in March 2023. There is a letter from Dr Angeliki Argyriou dated 22 March 2023. That recounts the applicant’s history and relevant stressors before indicating that he has low mood, anxiety and some symptoms of PTSD. There was to be a short programme of psychological support followed by further consideration of what was necessary.

38. There are further letters from the HBF dated 9 June, 24 July and 22 August 2023. These are countersigned by Dr Argyriou but the author appears to be a trainee Clinical Psychologist named Ryan Holmes, who was responsible for the individual therapy sessions with the applicant.


39. Mr Holmes opined that the applicant presented with symptoms of depression, anxiety and PTSD. He noted that the applicant suffered with an aversion to the dark and that his treatment had been impeded by acute stressors including the age assessment process. He recalled that there had been an attempt to move the applicant to Exeter, which would have brought his treatment at the HBF to an end, and that the applicant had preferred to be homeless until he had been assisted by a charity to find accommodation which was ultimately unsuitable. Mr Holmes considered that the applicant required self-contained accommodation in London, near to his support network in Brent.

40. Mr Holmes’ second letter was written after he had completed ten sessions of ‘stabilisation’ work with the applicant at a Young Roots centre in Harlesden. Mr Holmes had been asked by the applicant’s solicitors to provide his ‘clinical opinion on [the applicant’s] chronological age’. Drawing on the applicant’s ‘cognitive profile, peer relationships, attachment style, and identity profile’, Mr Holmes expressed the view that the applicant was more likely to be a 17 year old adolescent than a 25 year old adult.

41. The final, short letter from the HBF noted that there had been a significant deterioration in the applicant’s mental state during each stage of the age dispute, which had by late August 2023 culminated in the applicant expressing suicidal thoughts. Concerns were expressed about his losing faith in his religion and his ongoing, ‘crippling’ fear of the dark.

42. Dr Falkowski was instructed on 17 May 2024. He is a Consultant Psychiatrist who met with the applicant for one hour on 17 May 2024 and had available to him a great deal of evidence related to this case. Dr Falkowski’s report is thorough. The helpful summary which he provided towards the end of his report is in the following terms:

“12.1 Mr Araya’s mother died in childbirth. He does not know of any family history of medical or psychiatric illness. He was brought up by his aunt and left Eritrea at the age of 4 or 5, living in Ethiopia and then Sudan. He was sent to the UK via France. He stayed in the Calais “jungle” for 12 days. He was alone there and was afraid. He was hit by the agent and became scared of the dark.

12.2 Mr Araya experiences flashbacks and intrusive thoughts of being hit. He is anxious and on edge. He is also easily startled. These are symptoms of post traumatic stress disorder which he developed as a result of being hit in France. His symptoms have become less severe since receiving psychological treatment. Mr Araya still has symptoms of PTSD.

12.3 Mr Araya also has symptoms of anxiety and often has a low mood. At times, he wonders whether life is worth living and finds it hard to motivate himself. He finds it difficult to enjoy things and his sleep is disrupted. These are symptoms of a mixed anxiety and depressive disorder. Mr Araya is suffering from a mixed anxiety and depressive disorder which fulfils the ICD 11 criteria.”

43. There followed answers to seventeen specific questions posed by the applicant’s solicitors. The answers to a number of those questions are to be found in the summary above. Dr Falkowski also made the following observations, however. In answer to question 6, he noted that the applicant’s anxiety would be likely to worsen in a stressful situation. In answer to question 8, he stated that the applicant’s mental health would not have a significant effect on his memory. In answer to question 9, he opined that the applicant would be able to give evidence but that he should be given regular breaks but in answer to question 11 he stated that the applicant did not need to be treated as a vulnerable individual. In answer to question 12, Dr Falkowski opined that the applicant was not suffering from a disability as defined in statute. He did consider, in response to question 13, that the applicant would continue to benefit from support from the HBF and in response to the following question he considered that the applicant’s PTSD had improved with treatment. In response to question 16, he noted that the applicant had found changes in his accommodation upsetting.

Oral Evidence Before the Tribunal

44. I heard oral evidence from the applicant for the whole of 18 June. He gave evidence through an Amharic interpreter with whom he confirmed he could converse freely. It was agreed by counsel at the outset that the applicant should be given breaks every 45 minutes. There was also a break of more than an hour for luncheon and a ten minute break during Mr Swirsky’s cross-examination, when the applicant became upset when he was being asked about his aunt.

45. I heard from Martin Cosarinsky Campos, Gerard Nathanan Ralph Boer, Isabella Rubins and Oldamola Sonupe on 19 June.

46. It had been hoped that I would hear from Bethany Murray on 20 June but I was informed by Ms Butler that she was unavailable for reasons which I need not detail in this judgment.

47. Ms Butler sought to adduce a further witness statement from her instructing solicitor at this stage. The application was unopposed by Mr Swirsky although the contents of that statement and its appendices (which related to the applicant’s social media accounts) prompted an application by Mr Swirsky to recall the applicant. Mr Butler did not object, and I heard again from the applicant. On this occasion, there was no Amharic interpreter, but Ms Butler confirmed that the applicant was content to proceed in English. There was no suggestion that he was in any difficulty answering those ten questions. Nor could there have been; the applicant’s English is plainly very good indeed.

48. I do not intend to rehearse the oral evidence in my judgment. I will describe what is said by the witnesses when I come to evaluate their testimony and the weight which can properly be attached to it.

Submissions

49. Ms Butler and Mr Swirsky filed detailed skeleton arguments in advance of the hearing. Their comprehensive oral submissions were as follows.

For the Respondent
50. Mr Swirsky indicated at the outset of his submissions that there was no real dispute on the law; the focus was on the evidence. He recalled that the question before the Tribunal was the age of the applicant. There was no burden of proof. The Tribunal was not confined to the age proposed by either party.

51. It was notable in Mr Swirsky’s submission that the Home Office and the respondent council had concluded that the applicant was an adult, although the Home Office had thought that he was considerably older. The age assessment itself was demonstrably thorough and reliable. The applicant’s evidence, on the other hand, was unsatisfactory and incredible. He was clearly being dishonest as to important matters and that suggested that he had something to hide. The level of dishonesty was such that the Tribunal could not rely on anything which was said by the applicant unless it was objectively verified. It was, for example, clearly established that the applicant was an intelligent young man. That was not merely his assertion; it was verified by the evidence of his teachers and others.

52. Mr Swirsky noted that this was not a case in which the applicant stated that he had no idea of his date of birth. On the contrary, the applicant had stated all along that he knew his date of birth to be 19 November 2005 but there was no verification of that and the local authority would have been criticised if it had made its own enquiries with the Eritrean authorities. The difficulty for the applicant was that his account of knowing that date to be his date of birth simply did not add up. The real problem was that the applicant had stated that he had only learned the Gregorian calendar in Sudan. Had he known his birthday in Ethiopia, where he spent his formative years, he would have known it in the Ge’ez calendar, but he did not.

53. The applicant had been given two opportunities to state his birthday in the Ge’ez calendar. He had initially stated that it was 13 Tikimt 1998, which translated to 23 October 2005. There had then been a break, after which the applicant had corrected himself and stated that the date was 25 Hedar 1988 but that was 4 December 2005. Neither of the dates given by the applicant translated to 19 November 2005, therefore. The correct date in the Ge’ez calendar was agreed to be 10 Hedar 1998. The applicant had suggested that there had been an attempt to trick him during cross-examination but that was obviously not so. The point was simply that the applicant did not know his date of birth in the calendar he had grown up with.

54. There was a further issue, Mr Swirsky submitted, over the evidence given by the applicant about the languages spoken by his mother and his aunt. His mother was said to have been a Tigrinya speaker, whereas his aunt (her sister) was an Amharic speaker. It made no sense for sisters to speak different languages and one’s native language did not change merely because one moved from one country to another.

55. It was not clear, in the respondent’s submission, why the applicant’s friend Henock would have entered the applicant’s date of birth onto his Snapchat account. It was clear that other details had been entered onto the applicant’s profile since he had arrived in the UK. The remaining social media did not take matters much further but it was notable that the applicant’s Instagram account had been created in 2014, when he was supposedly eight or nine years old and living in Addis Ababa. It was more likely that the account had been set up by the applicant when he was a teenager.

56. The applicant’s oral evidence about his birth certificate had not added up to much. He said that it had been shown to him by his aunt but he did not look at it and could not remember what it looked like. He thought that his aunt had retained other documents about him but he did not know what they were.

57. The applicant had not required an interpreter when he gave his screening interview the day after he arrived in the UK. He had given his date of birth in the Gregorian calendar. He had also been able to give an account of other dates in that calendar, including the precise date on which he and his aunt had left Eritrea: 6 June 2010. The applicant had been able to give precise details about matters which had occurred when he was five years old but he was unable, as an intelligent teenager, to identify the airports through which he had passed. The account had ‘all the hallmarks of a script which the applicant had learned and had regurgitated when asked by an immigration official’, submitted Mr Swirsky.

58. Mr Swirsky observed that there were minor discrepancies in the evidence over whether or not the applicant’s aunt had accompanied him to Khartoum and whether a car or a lorry had been used to get there. There was also an issue over whether the applicant knew about the concept of asylum before he arrived. It was also notable that the applicant had maintained on the one hand that he had had no involvement in the choice of coming to the UK, whereas he had stated in his screening interview that the UK was his ‘country of choice’. In any event, the reason that the applicant was seeking asylum had varied; he had stated that he was in fear of return to Eritrea on account of his faith but then because of his imputed political opinion. It was wholly unclear how the applicant’s aunt had been able to pay for the ‘business class’ smuggling services he had used by selling some jewellery, particularly after they had needed to survive on charity. It was not clear how the applicant and his aunt had planned to reunite after his departure, not least because he said that she had discarded the mobile phone which they had previously shared. The whole account was extremely problematic. It was even unclear whether there had been a mistake over the applicant’s reference in the first SEF to being fingerprinted in Belgium.

59. In the respondent’s submission, the applicant’s ability to speak English to a high standard was inconsistent with the very limited education he claimed to have received. He had received very little by way of formal education but he had been able in his screening interview to give a detailed account of himself and had then progressed into BTEC level study. The applicant must have had some formal education which he was unwilling to share with the respondent or the Tribunal. It was otherwise inconceivable that he had been able to do so well in the UK. Isabella Rubins, who met the applicant when she was volunteering at the Breadwinners Foundation, had been so impressed with the applicant that she had arranged for him to meet her sister, a doctor, so that he could receive career advice from her. All of the evidence suggested that the applicant was highly proficient in English and well educated when he arrived in the UK.

60. There was also merit, Mr Swirsky submitted, in the points made by the assessors about the applicant’s confidence and his ability to advocate for himself. He was critical of his social worker, Mr Menghe, and was able to stand up for himself when he believed he had been treated inappropriately. There was no real explanation for the applicant having stated that he was ‘scared’ or threatened by Mr Menghe. It appeared that his relationship with Mr Hassan, his second social worker, had soured when the latter said he would give evidence in support of the local authority. The applicant had been dismissive of Mr Hassan in his evidence but it was clear that Mr Hassan had invested significantly more time in the applicant than he had claimed.

61. In Mr Swirsky’s submission, the evidence of the applicant’s witnesses was not deserving of any real weight. Mr Sonupe looked after the applicant and a number of other young people at the Silver Birch premises. Saying that the applicant got on well with the other residents did not assist; people generally tried to get on with those around them. Mr Campos had spent little time with the applicant. He had said that the applicant was notably shy but that was no indication of his age and he was in any event able to speak with him.

62. Mr Boer’s evidence was of assistance to the respondent, as it showed that the applicant had been able to approach him for help, which was a sign of maturity. He had also noted that the applicant spoke good English and that he was a ‘smart guy’.

63. Whilst there were proper reasons for the non-attendance of Ms Murray and Ms Akinola, that necessarily affected the weight which could be attached to their statements. Ms Akinola was the applicant’s chemistry teacher and might in particular have shed a good deal of light on his abilities when he first arrived in the UK.

64. The respondent did not submit that any of the applicant’s witnesses were being untruthful but their evidence was not deserving of weight. They merely confirmed that the applicant got on with other young people and that he was shy. They provided little if any assistance on the single issue in these proceedings.

65. It was the Tribunal’s practice not to hear oral evidence from the assessors themselves but the statement from Mr Ehimiaghe was deserving of weight.

66. The applicant’s evidence was important. It had not been honest or credible and there was a reason for that. He did not know his date of birth in the Ge’ez calendar and there was also a reason for that. It was the same reason that he was able to give such a clear account of various parts of his journey but no detail in respect of other parts. This was a learned story because the applicant was trying to hide his past and his age. He should be found to be an adult.

67. In response to a question I had asked Mr Swirsky during his submissions, he confirmed that the questions which had been posed to various people by the age assessors were in a standard form which had been formulated by Croydon London Borough Council and then shared with other local authorities. The questions were in standard form and were not specific to this applicant’s case. Ms Butler accepted that this was so.

For the Applicant
68. Ms Butler submitted that the applicant had given a credible account and that he was eighteen years old. The respondent’s case did not show that the applicant was lying. He had given a clear and consistent account which was supported by credible evidence and the respondent’s attempt to undermine the applicant’s case was based on speculation rather than any robust evidence.

69. Ms Butler noted that it was often said in such cases that an account given by an age-disputed person was vague. That was not so here – there was significant detail and it was the detail which was said by the respondent to be problematic. The most substantial point related to the applicant’s inability to state his date of birth correctly in the Ge’ez calendar but the applicant had consistently stated his date of birth in the Gregorian calendar as 19 November 2005. He had said that was the converted date he had been given by Henock. His aunt had told him his age and he had a recognition of his age, not his birthday. The applicant had explained that there was some documentary evidence of his date of birth, in the form of the birth certificate which he had seen. His account of having done so was basic and understated; he did not claim to have memorised the detail of that document.

70. Both of the dates which the applicant had given in the Ge’ez calendar were close but incorrect. He had simply made a mistake about the Ge’ez calendar or had become confused over it. That was understandable, since he had been using the Gregorian calendar since 2021. Since arriving in the UK, Mr Swirsky had been the first person to ask the applicant for his date of birth in the Ge’ez calendar. It was to be recalled that there had been a break in the hearing between the applicant proffering the first and second dates. It was notable that both dates were in error. If the applicant had sought to convert his date of birth during the break, it is likely that he would have got it right on the second occasion. The fact that he did not was indicative of confusion, not deceit.

71. In any event, nothing turned on the precise date. If the applicant had been coached, he would have given the correct date. He had ‘proactively changed’ his answer when the hearing resumed, before the inconsistency had even been put to him. The Ethiopian calendar could be confusing, as the applicant had said.

72. Mr Swirsky had taken a point about the applicant’s aunt and mother speaking different languages but this was perfectly plausible in the Eritrean/Ethiopian context, in which families had been riven apart by war. The aunt’s primary language had become Amharic as a result of that; it was not that she had been raised an Amharic speaker whilst her sister had been raised speaking Tigrinya.

73. The applicant’s social media profile was largely unremarkable. One additional point was taken by Mr Swirsky, about the applicant having joined Instagram in 2014 but there had been no cross examination on that point.

74. The accounts which the applicant had given in the UK were detailed and essentially consistent, Ms Butler submitted. Much had been made of the applicant’s ability to give a detailed account of his different locations through his lifetime but he had explained this credibly in his oral evidence. He had referred, for example, to his aunt lighting a candle to commemorate the day that they left Eritrea. It was clear that she had told him about such things. It was not surprising that the applicant did not know the name of the airports through which he had passed whilst he was under the control of the agent. These matters did not justifiably support the conclusion that the applicant had been coached by a people smuggler.

75. There was no discrepancy over the means of transport used to get into Sudan. It had been described as a lorry or a car but the word used in Amharic was the same. Nor was it problematic that the applicant had described the UK as his country of choice; that did not indicate that he had chosen the UK when he was in Africa, but merely that he had made that choice on the advice of others in The Jungle. Mr Swirsky had suggested that the applicant’s aunt would not have been able to afford the ‘business class’ service offered by the agent in this case but the account was not problematic. She had some gold which she had sold to save the applicant. That was entirely plausible.

76. There was a small point about whether the applicant had had contact with his uncle since they parted company but that had not been pursued by the respondent, Ms Butler noted. The applicant’s account of intending to keep in contact with his aunt was straightforward and credible; he had her number but he had lost it when his bag was stolen by the agent.

77. The assessors had been wrong, Ms Butler submitted, to seize on the applicant’s correction of his SEF. There had been reference to his being in Belgium in his first SEF but that had been corrected, proactively and without prompting, by the applicant’s solicitors. The Belgian authorities had confirmed that there was no trace of him there.

78. Ms Butler observed that the applicant had given evidence over the course of a day. It was clear that he had found the process stressful. His demeanour and his presentation had been plausible throughout, particularly as regards his tearfulness when he was asked about his separation from his aunt. His presentation showed that he is a genuine witness. If, as seemed to be suggested by the respondent, there had in fact been a longer period of separation from the aunt, the applicant’s emotions would probably have dulled somewhat.

79. The local authority had attached significance to various aspects of the applicant’s appearance. Ms Butler submitted that there was ‘absolutely nothing’, however, which suggested that he was over eighteen. His face was not lined. His facial hair was limited. The hair on his upper lip was not thick. He was notably short, in the 2nd centile. His hairline was high, not receding.

80. The medical evidence was supportive of the applicant’s account. It was clear that he had experienced trauma. Mr Holmes had not been attempting to ‘diagnose’ the applicant’s age; he had used his clinical knowledge to remark on matters such as the applicant’s tendency to ‘catastrophise’ things, his peer relationships and his style of attachment, all of which militated in favour of him being younger than was thought by the local authority.

81. The supporting witnesses strongly suggested that the applicant’s claimed age was true. Mr Campos had worked with hundreds of young people and had observed the applicant fitting in with boys of his claimed age. The context in which that evaluation took place was more telling than the more formal environment of the age assessment. Mr Sonupe had observed the applicant in a more relaxed domestic setting and felt that the applicant did not stick out like a sore thumb amongst other teenagers. Mr Boer had noted the ‘older brother’ dynamic adopted towards the applicant by other Amharic speakers. Ms Rubens’ evidence was consistent with that; he was mature with her but it was to be recalled that she was mentoring him.

82. The written evidence of those who had not attended was deserving of weight despite their non-attendance. Ms Murray had observed the applicant over a long period of time and the applicant would come to her for support. There was a proper reason for her non-attendance. The evidence of such a person was naturally more informative than that of a social worker who would see a young person every six weeks or so. Ms Ofordile and Ms Akinola had proper reasons not to attend but their evidence was valuable too.

83. As for Mr Boon, he had sadly left Young Roots after the suicide of a young person. His evidence was deserving of substantial weight, Ms Butler submitted. He was trained in age assessment and the applicant had been particularly dependent upon him for ‘almost parental levels of care’. The applicant was now fairly self-reliant but he had been helped and mentored to reach that point.

84. Ms Butler noted that a number of those who had been asked to comment on the applicant’s age had been supportive of him. That was true of the applicant’s lecturer, Ms Gururajan, and the manager of Housing Plus, Mr Ampofo. The applicant’s Virtual School Advisory Teacher, Ms McCorry, also fell into that bracket. These people had seen the applicant in a range of informal contexts and their evidence was deserving of weight.

85. The evidence of the respondent’s social workers was deserving of little weight, Ms Butler submitted. It was notable that Mr Hassan had not suggested that he thought that the applicant was 27; which was the age he should be according to the assessment. He had instead said that the applicant was an adult. Applying the margin of error which was required, that opinion provided very little assistance. Mr Hasan had met the applicant 4 times in seven months. On three of those occasions, the applicant had been an adult even on his version of events. Mr Hasan had suggested that the applicant had demonstrated particular maturity in getting himself to hospital when he had appendicitis but this was equally compatible with the applicant’s claimed age. Mr Hasan had held against the applicant the fact that he was able to budget competently but that followed on from the support which had been provided in that respect. The applicant was said to be confident but that was not probative of his age. Mr Swirsky had submitted that the applicant had tried to diminish the amount of support he had received from Mr Hassan but that was to overlook the relationship; it would obviously be difficult for the applicant to hear that his corporate parent thought that he was lying and Mr Holmes had remarked on the applicant’s adolescent tendency to see things in a black and white way.

86. There was no witness statement from James Menghe. His only response to the applicant’s allegations was in the age assessment itself and the emails which had been adduced. Mr Menghe had noted that there was some disagreement over money but the applicant was merely seeking an advocate, which was a sensible thing for a young person to do in this situation. It was significant that Mr Menghe had suggested that the applicant was between 18 and 20 years old in December 2022, when the applicant was saying that he was seventeen. Even Mr Menghe’s opinion was not supportive of the local authority.

87. There was some justification for the applicant feeling that Mr Menghe was against him. The email communication on 3 January 2023 (after the applicant had refused to meet Mr Menghe) contained a threat that the applicant would have to ‘manage on his own’ if he continued to disengage. It was easy to see how the applicant would perceive that, not least because of his documented mental health problems.

88. The age assessment itself was not deserving of weight. The conclusions drawn from the evidence were perverse and unsustainable, in Ms Butler’s submission. The assessors were concerned that the applicant had understated his level of education but the applicant had explained from an early stage that although he had no formal education he had attended English school in Ethiopia. It was clear that he was proficient in the English language but this was not inconsistent with his account; he was clearly intelligent, he had attended summer school, he had received assistance from Henock and he had watched films and football in English. He had explained how he had used vocabulary cards, and everyone agreed that he was a dedicated student. It was plausible that the applicant would be able to study at BTEC level and it was mere speculation on the part of the local authority to suggest otherwise.

89. There was no proper basis, Ms Butler submitted, for suggesting that the applicant had been coached to remember a false journey to the UK or that he had fabricated his past. The suggestion that the applicant had altered his account since meeting PC Aziz shortly after arrival was a bridge too far; the submission relied on a report within a report. It was not clear why the assessors said that the applicant had used ‘an alibi to justify the reason why he left Ethiopia’. It was absurd to suggest that the applicant should have ‘reached out’ to his persecutors (the Eritrean government) to obtain their assistance in providing his age.

90. All things considered, the applicant had told the truth and his evidence was supported by the preponderance of the other evidence.

91. Mr Swirsky sought permission to reply, which I granted. He raised two points of law. Firstly, that the benefit of the doubt and the margin of error in such cases had been considered by Swift J in R (HAM) v LB Brent [2022] EWHC 1924 (Admin); [2022] PTSR 1779. Secondly, that the absence of witnesses was in itself a reason to approach their evidence with some caution, as they had not been subjected to cross-examination and their evidence had not been tested. Mr Swirsky also sought to correct an error in Ms Butler’s submissions. She had at one stage suggested that the applicant suffered from ‘serious mental illness’ but there was no such suggestion in any of the medical evidence.

92. In response to those points, Ms Butler submitted that the Upper Tribunal was not bound by HAM and that this was in any event a fact-finding hearing. The proper approach remained that which was set out in the ACDS guidance. Whilst Mr Swirsky’s submission about absent witnesses was correct in law, it was still open to the Tribunal to place weight on their evidence. Ms Butler accepted that the applicant’s mental health problems were nowhere described as serious or severe but there were clear problems in any event, as was clear from Dr Falkowski’s report.

93. I reserved judgment at the end of the final day of the hearing.

Legal Framework

94. Part III of the Children Act 1989 (“the 1989 Act”) imposes a range of duties on local authorities in respect of children within their area who are in need. Section 17 of that Act, for example, obliges local authorities to safeguard and promote the welfare of such children and to provide a range and level of services appropriate to their needs. Section 20(1) of the Act requires that every local authority ‘shall provide accommodation for any child in need within their area’. And, by section 23C of the Act, a local authority may continue to be obliged to perform certain functions in respect of a ‘former relevant child’ (or a person who should be treated as such) even after that individual has attained the age of eighteen.

95. By section 105(1) of the 1989 Act, ‘child’ means a person under the age of eighteen. In R (A) v London Borough of Croydon [2009] UKSC 8; [2009] 1 WLR 2557, the Supreme Court held that whether a person is a child is a question of precedent or jurisdictional fact to be determined by the courts: per Lady Hale at [32], with whom Lords Scott, Walker and Neuberger agreed, and Lord Hope at [51].

96. There is a good deal of learning on the way in which that task is to be performed by the Administrative Court and, more recently, by the Upper Tribunal. A number of authorities are cited in the comprehensive skeleton arguments prepared by counsel, for which I am grateful.

97. I shall not attempt a review of all the relevant case law at this stage of my judgment. For the moment, I propose to mention only one authority, which is the decision of the Court of Appeal in R (CJ) v Cardiff City Council [2011] EWCA Civ 1590; [2012] PTSR 1235. In his judgment, Pitchford LJ (with whom Laws LJ and Lloyd Jones J (as he then was) agreed) held that the nature of the court’s enquiry under the Children Act is inquisitorial and that it was inappropriate to speak in terms of a burden of establishing a precedent or jurisdictional fact: [21]. The court is required, Pitchford LJ continued, to apply the balance of probability without resorting to the concept of discharge of a burden of proof, and a ‘sympathetic assessment of the evidence’ is appropriate.

Analysis

98. There is a sea of evidence in this case. The logical place to enter the water is by considering the age assessment and the criticisms made of it by Ms Butler, so as to gauge the weight which can properly be attached to it. I will say at the outset that I consider a number of Ms Butler’s criticisms of the assessment to be well-founded and that I can only attach limited weight to its outcome. I reach that conclusion for the following reasons.

The Assessment
99. Firstly, the assessors’ approach to the applicant’s physical appearance is concerning for a number of reasons. It is well established that physical appearance is a notoriously unreliable basis for assessment of chronological age: R (AB) v Kent County Council [2020] EWHC 109 (Admin); [2020] PTSR 746, at [21](7), for example. There is no reference to that principle in the age assessment. There is reference at p47 to the fact that various factors may influence a child’s development and to physical appearance not being ‘a single determinant factor’ at p51 of the assessment but the assessment gives no indication that the assessors were aware of the circumspection required of a person who is minded to attach weight to this factor in an age assessment.

100. The applicant attended all three days of the hearing. He gave oral evidence for the whole of the first day and some of the last. I had a good opportunity to observe him. Having done so, I consider Ms Butler to be correct in her submission that some of the assessor’s observations about the applicant were straightforwardly wrong. His face was not noticeably lined and his facial hair was downy, and aptly described by Ms Butler in the vernacular as a ‘bumfluff moustache’. The assessors were concerned about the applicant’s ‘receding hairline’ but there is no evidence of that. To know that a hairline is ‘receding’, one has to know where it was originally. Ms Butler submitted, and I accept, that the applicant shows no signs of male pattern baldness, such as a ‘widow’s peak’ and his hairline is merely a high one.

101. The assessors attached significance to the fact that the applicant has a ‘prominent larynx’ which was ‘protruding and lower on his neck’. They referred to an article they had found on the internet which suggested that ‘before puberty, your larynx sits higher in the neck. As you go through these changes, it gets bigger and moves down lower.’ These statements from the internet are of course merely statements expressed at a general level. Some men will develop a prominent Adam’s Apple in early adolescence, some in later adolescence. Some will never develop a visible Adam’s Apple. The fact that a person has a prominent Adam’s Apple is no real indication of their age. It is for reasons such as this that physical characteristics are notoriously unreliable indicators of chronological age.

102. Mr Swirsky sought to respond to Ms Butler’s submissions about the respondent’s reliance on physical appearance at [26]-[27] of his skeleton argument. He cited the decision of Swift J in R (HAM) v LB Brent. At [32] of his judgment, Swift J said that there would be ‘some instances where lawful decisions can be taken on the basis of appearance and demeanour alone’ but that ‘in other cases, further investigation will be required’. As Mr Swirsky accepts, this case falls into the second of those categories. Whilst I accept that physical appearance was a relevant consideration in such a case, the difficulty with the approach adopted by the assessors in this case was that they failed to approach physical appearance with the necessary caution and they seized on matters which were either factually inaccurate (receding hairline) or of no real value in deciding the applicant’s chronological age (Adam’s Apple).

103. Secondly, Ms Butler makes a well-founded criticism of the way in which the assessors treated the evidence of professionals in this case. This criticism was not answered by Mr Swirsky in his skeleton argument or in his oral submissions. The views of the professionals were evaluated at p36 and p48 of the assessment. The summary at p48 suggested that the views of professionals were ‘finely balanced’. As Ms Butler submits, however, that is not an apt description of those views. I have summarised the views expressed at [22]-[30] above. Messrs Ampofo, Boer and Boon had expressed views which were positively supportive of the applicant’s claimed age. The assessors chose to prefer the evidence of the applicant’s social worker, Mr Menghe, who has received age assessment training. In doing so, however, the assessors failed to recognise the potential value of evidence from individuals who work with groups of young people and see how they react with one another: R (AM) v Solihull MBC [2012] UKUT 118 (IAC), at [21]. I very much doubt whether not wanting to be ‘seen by the young person as a snitch’ was a legitimate reason for lessening the weight which was given to those opinions. Mr Menghe’s assessment was, in any event, not supportive of the conclusion that the applicant was in his mid-twenties. The view he expressed was actually that the applicant was 18 to 20.

104. Thirdly, I accept certain of Ms Butler’s submissions about the way in which the assessors evaluated the credibility of the applicant’s account. The assessors made much of the fact that the applicant had submitted a Statement of Evidence Form to the Home Office in August 2022 in which he stated that he had been fingerprinted in Belgium, only to correct that by the submission of an amended SEF on 23 September 2022. The letter from the applicant’s asylum solicitors which accompanied the amended SEF stated that there had been an ‘inadvertent error’ in the first SEF. The assessors were not satisfied with that explanation, however, and p50 of the assessment contains a good deal of speculation about the applicant and others in his position knowing that the Home Office no longer has access, post-Brexit, to the EURODAC fingerprint database, as a result of which he was at liberty to change his account. Whilst checks with the Belgian authorities had returned no corresponding results, the assessors were aware that ‘the use of other names have become common since 2021’, as a result of which there was no adequate way of checking whether he had in fact been in Belgium in 2021.

105. What the assessors missed in undertaking that assessment was the simple point made by Ms Butler at [74](e) of her skeleton argument. The first SEF was submitted with a statement which the applicant had signed on 23 August 2022. At [14]-[17] of that statement, the applicant gave an account of events after January 2021. The applicant said that he had left Ethiopia on 14 January 2021 and travelled to Khartoum, where he had lived for ‘almost a year and 4 months’. It is inherently unlikely that the applicant would intend to state in the SEF form that he had been fingerprinted in Belgium in 2021 whilst simultaneously maintaining, in the statement which was supplied with that form, that he had spent the whole of 2021 in Khartoum. The contradiction between the SEF itself and the SEF statement which accompanied it strongly supported the suggestion that there had merely been an ‘inadvertent error’ in the former document. That was certainly relevant to the assessment of this point and it was necessary to take it into account before concluding, as the assessors did, that the applicant was attempting to ‘cover his tracks and mislead professionals about his past lived experiences’.

106. Fourthly, the assessors attached impermissible significance to the applicant’s inability to identify the nationality of the passport on which he had travelled from Khartoum to France. He stated at first he thought that the passport on which he had travelled was ‘brownish’. When he came to the second ‘minded to’ session on 13 March 2023, the applicant was asked further questions about this document. He said that he was unable to remember the colour of it on this occasion. He told the assessors that he had not been in possession of the passport at any stage: ‘I did not have the passport with me’ and it was with the agent, he said. Notwithstanding those answers, the assessors proceeded to show the applicant copies of the covers of passports from Sudan, South Sudan, Ethiopia, Eritrea, Djibouti, Uganda, Somalia and Kenya, asking the applicant to identify the nationality of the passport on which he was travelling. This exercise apparently fed into the conclusion that

The assessors are hypothesizing that to cover up the fact that he could have been living in Europe longer than he told the assessors, [the applicant] came up with a relatable story, in an effort to cover up his track. The question is if the agent had compromised the check-out staff at the airport in Sudan, the agent is likely to have found it difficult to do the same at the arrival airport in France.

107. Mr Swirsky said nothing in defence of this process of reasoning in his written or oral submissions, and he asked no questions of the appellant about the passport. He was correct not to pursue the point. It was illogical for the assessors to expect the applicant to be able to identify the nationality of the passport which had been held by the agent throughout.

108. Fifthly, I accept Ms Butler’s submission – which was also unmet by Mr Swirsky for understandable reasons – that the assessors erred in criticising the applicant for failing to contact the Eritrean authorities in order to obtain a copy of his birth certificate. To make that suggestion was to expect the applicant to make contact with those from whom he fears persecution and was, as Ms Butler submitted, irrational.

109. For all of these reasons, I consider that the route by which the assessors concluded that the applicant’s age range was between 23 and 27 years old was flawed and I attach little weight to the age assessment in my own analysis.

The Applicant’s Account
110. I turn to my own view of the applicant’s account. In undertaking that assessment, I have decided to treat the applicant as a vulnerable witness on account of his age and the mental health problems which are described in the report of Dr Falkowski, as summarised above. He was treated as such during the hearing, with counsel agreeing that he should be given regular breaks during his evidence. That designation carries through into my assessment of the applicant’s credibility and I adopt the approach set out at [15] of the Joint Presidential Guidance Note No 2 of 2010, as endorsed in AM (Afghanistan) v SSHD [2017] EWCA Civ 1123; [2018] 4 WLR 78.

111. I accept Ms Butler’s submissions that the applicant’s account was detailed and consistent in many respects, and that the clinicians’ concerns regarding trauma, depression and anxiety add some credence to the narrative. Nevertheless there were a number of significant difficulties with the applicant’s evidence.

112. The first, which was rightly described by Ms Butler as the most substantial point, relates to the applicant’s inability to state his date of birth correctly in the Ge’ez calendar, as used in Ethiopia. It was agreed by counsel that the Ethiopian Ge’ez calendar has thirteen months and that it is around 7 years behind the Gregorian calendar.

113. The applicant dealt with his date of birth and his birth certificate at [6]-[8] and [122] of his first witness statement. He stated there that he knew his date of birth, including the calendar year, because Eritrea and the UK both use the Gregorian calendar. He stated that he found it easier to give years in the Ethiopian calendar. He had seen his birth certificate and he had noted that it had a picture of a camel with leaves at the top. As to its contents, the applicant said that he had seen his name and his parents’ names and that ‘it said my date of birth was 19 November 2005.’ He thought it had been shown to him when they were in Ethiopia.

114. The applicant’s oral evidence before me was slightly different, in that he placed more emphasis on what he was told by his aunt, and rather less on the birth certificate. He stated that he had learned his age from his aunt when he was growing up. He explained that his birthday was not itself considered significant; what was significant to him, and his aunt, was that his mother had died on the same day. He said that although he had seen his birth certificate, he had not understood it. He explained that he had not understood it because it was written in Tigrinya and in the Gregorian calendar. The applicant’s oral evidence was therefore that he had learned his date of birth from his aunt, not from a document, and he had learned it because it was the date of his mother’s passing.

115. Mr Swirsky asked the applicant whether his aunt had told him his birthday in the Ethiopian calendar, to which he replied that she had. Mr Swirsky then asked the applicant to give his date of birth in the Ge’ez calendar. The applicant’s evidence to that point had been essentially fluid, with answers following questions quickly and easily. In response to this question, however, there was something of a pause before the applicant answered that his birthday in the Ge’ez calendar was 13 Tikimt.

116. Mr Swirsky asked a handful more questions after that date had been given by the applicant. We then had a fifteen minute break in evidence, in accordance with the agreement I have recorded above. On return, Mr Swirsky’s next question was “You told us that your birthday was 13 Tikimt, in which year?” The applicant replied that he should have said 25 Hedar, and that the year was 1998. Mr Swirsky asked the applicant whether he was changing his evidence from 13 Tikimt to 25 Hedar. The applicant said that he was. Mr Swirsky asked why he was changing it so quickly. The applicant said that it was a mistake; it was 25 Hedar and that Mr Swirsky was trying to cause him to make mistakes.

117. Ms Butler re-examined the applicant on this point. She recalled the applicant’s evidence that his aunt had told him his date of birth in the Ethiopian calendar. Ms Butler asked which date the applicant had been given by his aunt. He responded that it was 25 Hedar. Ms Butler asked the applicant whether his aunt had told him what his birth certificate said, given that it was written in Tigrinya. The applicant said that he did not remember much about it; his aunt had just said that it was his birth certificate. Ms Butler then asked the applicant when he had first learned his date of birth in the Gregorian calendar. He said that it was Henock who had told him and that he didn’t consider it to be a ‘big deal’.

118. The account given by the applicant in his oral evidence was therefore that he had only learned of his date of birth in the Gregorian calendar from Henock, when he was in Ethiopia, but that he had previously learned it from his aunt in the Ge’ez calendar. It was, as I have already mentioned, a date of great significance to them both because of the passing of the applicant’s mother. The applicant stated that he had not considered that his date of birth in the Gregorian calendar was a big deal. He was raised in Ethiopia, using the Ge’ez calendar, from a young age to 2021. On this version of events, therefore, I would have expected the correct date of birth in the Ge’ez calendar to have been seared into the applicant’s memory. It evidently was not. Neither 13 Tikimt nor 25 Hedar translate to 19 November, as counsel agreed before me.

119. The applicant said that his attempts at recalling the correct date in the Ge’ez calendar were wrong because he had made a mistake, because he had not slept well and was ‘stressed out’. He said that it had been a while since he had discussed the Ethiopian calendar, which could be confusing. That was the submission made by Ms Butler too. In my judgment, however, the problem is a fundamental one, and is not explained by those matters, or by the applicant’s mental health difficulties. His case is that he used the Ge’ez calendar until 2021 and that he had always known his date of birth in that calendar. I accept that the Ge’ez calendar can be confusing, and that the applicant might well have slept poorly before the hearing. It is likely that he was stressed by the hearing and I bear the medical evidence firmly in mind. But the applicant was not being asked to navigate events in the Ge’ez calendar; he was simply being asked to give a significant date in the calendar he had grown up with. His inability to do so is significant, in my judgment, even if he has not used that calendar for some time.

120. Ms Butler submitted that the applicant had ‘pro-actively’ changed the date after the brief adjournment and that if he had been busy translating the date from one calendar to the other during the break, he would likely have returned with the correct date. I do not consider either of those points to be capable of addressing the difficulty. The applicant evidently recognised that he was in difficulty when the hearing adjourned. He evidently gave the matter some thought over the break. There might be any number of reasons why he returned with another erroneous answer, the most probable of which is that he could not think clearly because he had been caught out by Mr Swirsky. In my judgment, he was indeed caught out when the question was put to him in cross examination, and his attempt to dig himself out of difficulty only resulted in the deepening of the hole.

121. The second significant difficulty with the applicant’s account is one which was alighted upon by the assessors: the applicant’s level of education, and his ability to speak excellent English, shortly after he arrived in the UK. There is a good deal of evidence in the papers about the applicant’s standard of English when he first arrived. The most obvious example is provided by the screening interview, which took place the day after he had claimed asylum at Hammersmith police station. There is some disagreement in the papers over whether or not the applicant wished to have an interpreter. On the first page of the Initial Contact and Asylum Registration Questionnaire, the named Immigration Officer recorded that the applicant had refused an interpreter. At [73] of his first statement for these proceedings, the applicant stated that the officer had tried and failed to arrange an interpreter, after which she suggested that they continue in English.

122. I note that no complaints or observations about the language of the screening interview have been made by the applicant’s asylum solicitors. Be that as it may, it is clear that the applicant managed extremely well in English. He gave an account of his journey which was recorded as follows (the lack of punctuation is in the original):

“I left Eritrea on June 6th 2010 I went to Djibouti by boat I stayed there for 1 year until August 2011. I went to Addis Abba, Ethiopia travelling by car with my aunt we arrived in Ethiopia 2 days later. I stayed in Ethiopia for 9 years, on January 14th 2021 I travelled alone to Sudan I travelled in the back of a lorry to Khartoum. I stayed in Khartoum for almost a year and 4 months. I then travelled to France by place on April 15th 2022. I do not know what airports I used either end, an agent arranged it for me he said I should act like his son, the agent then took me to ‘the jungle’ by train I do not know the name of the station, where we met another agent who helped me get into the back of a lorry to come to the UK. I do not know any of the details of the passport I used to travel on. I did not speak to Immigration in France, the agent did the speaking for me. I do not know where I got off the lorry in the UK. The guy I travelled with called his family who picked as up and dropped me at this police station (Hammersmith Police Station). No interaction with any authorities.”

123. The applicant was also able to convey details about his background, his education, and the reasons he was claiming asylum. In answer to question 2.1, he also stated that he had high cholesterol. He said that he had not been taking any medication for the condition since it was diagnosed by a doctor in Ethiopia some three years previously.

124. Having noted what was said by the assessors about his familiarity with the English language, the applicant gave an account of the way in which he had learned the language at [18]-[23] of his first statement. He said that he had benefited from Henock’s assistance; that he had learned English at the YWCA summer courses he had attended for five years; and that he had watched football and the film Mr Bean before he left Ethiopia.

125. Asked about his English by Mr Swirsky, the applicant said that it had been ‘so/so’ when he arrived in the UK. He stated that the summer schools had been for half a day, five days a week, and for two months every year. He confirmed that this was the only education he had had before he came to the UK. He said that he had learned English, Maths and Science and that the language of tuition was Amharic. At the end of his evidence, I asked the applicant a single question about the way in which he had learned English. He said that he had used print outs of vocabulary on plain paper, which he had stuck on the wall. He said that his aunt had helped him with this. Henock, he said, had helped him ‘a great deal’, and it had been his effort which had enabled the applicant to learn so quickly. He had been frustrated about his inability to watch football and films in English, so he had been keen to learn.

126. Mr Swirsky submitted that the applicant’s level of English when he arrived in the UK was clearly very good. He submitted that the level of instruction which the applicant was said to have received was not such that he would have been able to convey such detailed information to the Immigration Officer on 28 April 2022. Mr Swirsky submitted that the applicant must have had much more tuition in the English language, and that he was seeking to conceal the truth. For her part, Ms Butler submitted that it was plausible that a bright young man such as the applicant could have familiarised himself with the English language in the manner claimed over the course of several years.

127. I prefer Mr Swirsky’s submissions in this respect. The applicant’s level of English was clearly very good when he arrived in the UK and it is inherently unlikely that he would have been able to reach such a level if he had only received the sporadic and informal level of tuition described orally and in writing. I note that the first mention of vocabulary cards was in response to my question, at the end of his evidence on the first day of the hearing and I formed the view that he was attempting to shore up his evidence with this late addition. It strains credulity to suggest that a bright teenager with the claimed level of English instruction would have been able to explain to the Immigration Officer that he had been diagnosed with high cholesterol some years before their interview but that he had not received any treatment for it.

128. I reach a similar conclusion in relation to the applicant’s ability to progress his education in the UK so quickly. In this connection, it is to be recalled that the applicant claims never to have received any formal, regular schooling until he came to the UK. The summer schools which he attended in Ethiopia took place over two months and comprised half a day’s tuition for five days a week. There is also said to have been some assistance from Henock. The applicant was asked by Mr Swirsky about what he had learned in science, and he explained that he had mostly learned about biology. There was also tuition in English and Maths, and he had received some additional help from Henock, who was an undergraduate.

129. Notwithstanding that assertedly basic education, the applicant was able to undertake a full time BTEC Level 2 Science Course at the College of North West London from September 2022. (BTEC levels one and two are equivalent to GCSEs.) This was a full-time course which took place four days per week. Priya Gururajan was his course tutor and expressed the opinion in November 2022 that

“He is progressing well in the course, he engages very well in the lessons and seems to have a lot of prior knowledge about the subject. His numeracy and literacy skills are good.”

130. At around the same time, another teacher called Aine McCorry expressed the view that the applicant was a ‘dedicated student’ who had made ‘exceptional progress in a short space of time’. She felt that he was on track to achieve a distinction at the end of the year. The applicant confirmed in his oral evidence that he had achieved a merit in the course, with a distinction in one of the subjects.

131. Ms Butler relied on the fact that the applicant is bright and dedicated. That is indeed common ground, and was apparent from what I saw of him on the first day of the hearing. Ms Butler also noted that the applicant had taken a course at University College London entitled ‘Bridging the Future’. The applicant stated that this was a two week English and Science course which preceded his enrolment at North West London College. He also gave evidence that he did not want to be embarrassed during his studies at college and that he had done as much pre-reading as he could.

132. I have taken all of that into account, and I have not lost sight of the fact that the applicant is a diligent young man who wishes to become an obstetrician. I also bear in mind the summer schools and the assistance he is said to have received from Henock. Even making full allowance for all of these matters, however, I am unable to accept that the applicant would be able to progress from a background without any formal education to a GCSE level science course within a matter of months.

133. In sum, I am driven to the conclusion that the applicant has been decidedly less than frank about the level of education he received before he came to the UK.

134. Thirdly, I consider Mr Swirsky to make a meritorious point about the way in which the applicant is said to have been able to travel from Sudan to Europe. Mr Swirsky described it as ‘business class’ illegal travel, and there was some justification for that turn of phrase. As Mr Swirsky observed, the applicant did not make the perilous overland journey or the deadly Mediterranean crossing which is so frequently encountered in cases of this nature. His journey from Africa comprised a flight from Sudan, direct to France, accompanied at al times by an agent who went by the name Mohammed and instructed the applicant to behave like his son.

135. Mr Swirsky asked the applicant how this journey was paid for. The applicant said that his aunt had had to sell all of her gold. Mr Swirsky asked where the gold had come from. The applicant said that he did not know.

136. The plausibility of the applicant’s account that his aunt was able to fund the trip in this way is to be assessed by reference to what the applicant said about their circumstances. They had left Djibouti in August 2011, having been forced to beg to support themselves. The applicant and his aunt then spent about a decade living illegally in Ethiopia, working for Henock’s father, before they were forced to flee after the employer’s home was raided by the authorities. They were in Sudan, again illegally, for around sixteen months before the applicant’s aunt made the decision that the applicant should leave the country. The applicant said of this period at [39] of his statement that they ‘didn’t have any special things but we survived.’

137. It is not possible to know the exact cost of the journey from Sudan to France but it is safe to say, from my long experience of other such cases, that it would have cost many thousands of pounds. It is clear that the applicant did not have his own passport, and a false one had to be arranged. In order to get into France, where the checks would have been rigorous, there would have had to be a visa of some description. It seems likely – given the agent’s instruction to the applicant – that the applicant was passed off as the agent’s son. The cost of these arrangements, and the risk to the agent in entering a European country with at least one false passport and a child who was not his own, would have justified a very high price for the transaction. The question, therefore, is whether the applicant’s aunt, who had to resort to begging to survive in 2011, would have been able to save enough money from a decade of illegal working as a housemaid to buy such a quantity of gold. The answer, in my judgment, is to be found in the applicant’s own statement; the applicant’s aunt could not conceivably have saved enough money to fund this journey, given that they were only able to survive. Ms Butler submitted that the account was plausible in this respect. I strongly disagree.

138. In sum, I consider that the applicant has given a less than frank account of the way in which he or his aunt were able to fund his journey from Africa to Europe.

139. The fourth respect in which I consider the applicant’s credibility to be damaged follows on from the third. Mr Swirsky submitted that the applicant’s account of his journey through Africa to Europe was both implausibly precise and implausibly imprecise. The submission stems from the applicant’s answer in his screening interview, as recorded at [122] above. Mr Swirsky noted that the applicant had given very precise dates of travel, in the Gregorian calendar, for events which took place when he was a young boy. He was apparently four years old when he travelled from Eritrea to Djibouti but he was able to give the exact date: 6 June 2010. He was only a year older when they left Djibouti for Ethiopia but he was able to state that they had left in August 2011. He was able, apparently, to recall that the journey had taken 2 days by car.

140. As Mr Swirsky observed, this was extremely precise recall of dates for a man who was only four or five years old at the relevant time. The applicant stated, in response to a question about the date on which they left Eritrea, that his aunt had remembered the date every year by lighting a candle. That had not been said before. But there is, in any event, a more fundamental problem with this account. The applicant confirmed in his oral evidence that he used the Ge’ez calendar when he lived in Ethiopia. The Gregorian calendar had been mentioned to him by Henock but he had really paid little attention to it. He said that he had first learned the Gregorian calendar when he was in Sudan. Mr Swirsky asked him, therefore, how it was that he was able to recall these dates in the Gregorian calendar in the screening interview. The applicant initially had no answer to that question. In response to a follow-up question from Mr Swirsky, the applicant stated that he had calculated the answer from the Ge’ez calendar into the Gregorian calendar, stating that one simply adds eight years. Mr Swirsky then asked the applicant whether the days and months are the same, to which he replied ‘more or less’ but, as we have already seen, that is not so. There is, in my judgment, no plausible reason that the applicant would be able to give such precise dates in the Gregorian calendar for his departures from Eritrea and Djibouti.

141. The precise account which the applicant is able to give in respect of his travel as a small child is to be contrasted with the imprecise account he is willing to volunteer about his travel to Europe as a bright, English speaking teenager. He stated in his screening interview that he did not know which airports he travelled through. He maintained that account before me. I regret to say that I found that wholly unconvincing. The applicant will have been with the agent at the airport in Sudan for some time before the flight. The flight would have been announced and boarded. There would have been announcements on board the flight, which would have lasted several hours. There would have been signs on arrival in France. The applicant said that he and the agent took a train from the airport to somewhere near the jungle. Despite all of that, the applicant was unable to give the Immigration Officer at Hammersmith Police Station the name of the French airport to which he had flown.

142. Ms Butler submitted that the applicant was under the control of the agent, keeping his head down and doing what he was told. I also take account of the fact that the trauma which is described in the medical evidence is likely to originate in part from the applicant’s separation from his aunt. Even taking full account of those matters, however, it strains credulity too far to accept that the applicant was unable even to name the French city he flew into. He is evidently intelligent. He evidently spoke good English at that time. When set against the precise details of events in 2010/2011, the applicant’s reluctance to disclose this basic piece of information suggests recourse to a prepared story, rather than full disclosure of the actual route used.

143. In sum, I consider the applicant to have attempted to mislead the respondent and the Tribunal in relation to his route to the United Kingdom. For that reason, and for the other reasons I have set out above, I consider there to be very significant problems with the credibility of the applicant’s account.

Evidence Supportive of the Applicant’s Account
144. I turn to the evidence of the various witnesses who were supportive of the applicant’s age. In doing so, I recall once more what was said about the potential value of such evidence at [21] of R (AM) v Solihull MBC.

145. Mr Campos is the Managing Director of the Breadwinners Foundation, which works with young refugees and asylum seekers. The charity sells bread on market stalls. He saw the applicant between October 2022 and February 2023. He initially had contact once a week, then monthly contact after that. Mr Campos expressed the view that the applicant fitted in with other participants who were 16 and 17. He noted that he was shy and that he enjoyed playing silly games. He said that he had ‘no doubt’ that the applicant was eighteen years old in his statement of 29 February 2024.

146. Mr Campos could not recall when he was asked by Mr Swirsky whether he had known that the applicant was ‘age-challenged’ when he was working with him. He also accepted that the applicant’s shyness was no real indication of age. He noted that the applicant had increased in confidence as time progressed.

147. Mr Campos was a truthful and well-meaning witness. As will be apparent, the real value of his evidence was in his observation that the applicant got on well with 16-17 year olds. Beyond that, I am unable to attach any real significance to his opinion as to the applicant’s age; the applicant’s shyness and his enjoyment of ‘silly games’ provides little insight into whether he is over or under eighteen.

148. Mr Boer works, as I have noted earlier in this judgment, for the Hillsong Church, which is a Pentecostal, charismatic church based in Australia. Like Mr Campos, he has worked with asylum seekers and Unaccompanied Asylum-Seeking Children for some years. Before me, he described his role as working ‘more than full time’ with refugees. Mr Boer saw the applicant for around a year, between June 2022 and June 2023. He saw the applicant regularly at the church’s Monday night project and it was Mr Boer who referred the applicant to a solicitor who sent a Letter Before Action to the respondent. He also attached significance to the applicant being shy and reserved, although he accepted in cross-examination that this was not necessarily the mark of a teenager. In common with Mr Campos, he opined in his statement of 25 August 2023 that there was no reason to doubt that the applicant was under the age of eighteen.

149. As with Mr Campos, I attach some weight to Mr Boer’s observation that the applicant ‘acted his age’ when he was with other ‘young guys and unaccompanied minors’. This evidence provides some basis for thinking that the applicant was not between 23 and 27 at the time of the age assessment, as the respondent concluded.

150. Isabella Rubins met the applicant whilst she was volunteering at the Breadwinners Foundation. She works in advertising. Her sister is a doctor. She and the applicant worked together on a market stall in Chiswick and she was clearly impressed by him, as she arranged for her sister to speak with him about his wish to become a doctor. She is 25 years old. She thought that the applicant was a ‘sweet guy’ and she thought that he looked ‘quite young’ and younger than her. She thought he looked up to her. She noted in her statement of August 2023 that his English was at an ‘amazing standard’. She observed that the applicant had a close relationship with another Eritrean asylum seeker of the same age. I understand the person in question to be the applicant’s current girlfriend. Ms Rubins thought that the applicant did not have much life experience, and she explained in her oral evidence that he did not know how to strengthen his CV and that he had never seen a job application before.

151. Ms Rubins was also a well-meaning and truthful witness who honestly believes the applicant to be the age he claims. Her instinct, on which I place some weight, was that the applicant was younger than her and that he was possibly the same age as the young woman she saw him with.

152. Mr Sonupe is a support worker at Silver Birch Care, which is accommodation for 16 and 17 year olds in which the applicant previously lived. He worked as a teaching assistant with teenagers in the past. The applicant stayed in the accommodation for around four months, and he observed that he got on well with the other residents who were between 16 and 18 years old; he did not ‘act out of place when he was with them’. Mr Sonupe also noted that the applicant tended to comply with instructions, which made him think that he was his claimed age. Mr Sonupe clarified in his oral evidence that he might have made a mistake as to dates in his statement: he accepted that the applicant had lived in Silver Birch from November, not September 2023. He also accepted that there had been something of an issue over the applicant staying out beyond the curfew of 11pm.

153. As with the previous witnesses, Mr Sonupe was of some assistance to me because of his observation that the applicant related to the other young people in the accommodation.

154. Ms Butler invited me to accept the evidence of others who were unable to attend the hearing: Ms Murray, Ms Ofordile, Ms Akinola and Mr Boon. I note Mr Swirsky’s observation that a tribunal might well attach less weight to the evidence of a witness where their evidence has not been tested in the witness box, and I accept that submission. I nevertheless attach some weight to the evidence of these witnesses because of their observations about the way in which the applicant associated with other young people of his claimed age.

155. Ms Murray is the Home Manager for Abiding Care. She has experience of working with young people in other settings as well, having worked in an adolescent psychiatric ward and in secondary schools. She has considerable experience of working with UASCs. The applicant did not live at her accommodation but was a frequent visitor as a result of his friendship with one of the residents. Amongst other things, she noted the way in which he interacted with the resident and the activities they did together, which included playing in the snow in an ‘age-appropriate’ manner.

156. Ms Ofordile is the manager of Silver Birch care and saw him frequently until she went on an extended period of leave. Like her colleague, Mr Sonupe, she noted that the applicant ‘mixed in so well with the other young people’ at the accommodation. She also noted that he enjoyed spending time with them, playing computer games and watching Netflix. She noted the way in which he dressed, which included ‘sagging his pants’, which she noted was ‘trendy for people his age’.

157. Ms Akinola is a science lecturer and tutor at Northwest London College. She was the applicant’s chemistry teacher. She has significant experience of working with young people, as one would expect. She observed that the applicant’s behaviour was typical of young people of his claimed age. He was comfortable with others of the same age; he would laugh and be cheeky when he missed classes (as a result of the ongoing age assessment); and he gave her a ‘cheeky smile’ when she caught him vaping. She thought that he was eighteen years old.

158. Mr Swirsky lamented the fact that Ms Akinola had not attended to give evidence as she could have shed light on the applicant’s level of education before he came to the UK. Be that as it may, I attach some weight to her evidence as it documents his interactions with other young people of his claimed age.

159. Mr Boon is the Youth Development Co-Ordinator of Young Roots, which is a charity that works with refugees and asylum seekers between 11 and 25 years old. It was he who referred the applicant to the HBF for support and counselling. He has received training in age assessment; ‘the same training that social workers receive’, which he completed as part of his continuing professional development. He has been working with young refugees and asylum seekers for more than four years. He has relevant prior experience, however. He had no reason to conclude that there was a safeguarding issue when the applicant attended the youth club. He considered that the way in which the applicant related to him ‘is very much as a teenager, as a 17 year old’ and he observed that the applicant relied on the staff to provide ‘almost parental levels of care’.

160. Mr Boon thought that the applicant was ‘needy’ and that people in their twenties tended to show more independence. Some of the applicant’s behaviour he considered to be ‘typical adolescent behaviour’, in that he would express anger or frustration or would return home without explaining why. He noted that the applicant had struggled with the age assessment process, that he was really focused on his studies, and that he had been ‘quite lazy’ about completing any of the tasks in their volunteering scheme. In the latter respect, Mr Boon considered the applicant’s behaviour to be more consistent with being a teenager than a young adult. He thought that the applicant struggled socially, and that other young men, including one he had known for five years, had adopted an ‘older brother dynamic’ with the applicant. He had also observed childish behaviour from the applicant, including an inappropriate comment during a period of bereavement after a suicide. Mr Boon’s view in August 2023 was that the applicant was seventeen, and that he had observed ‘clear indicators that he is under 18’.

161. Ms Butler invited me to attach substantial weight to Mr Boon’ evidence because he has completed age assessment training and because he had given cogent reasons for his opinion. I give weight to Mr Boon’s opinion for those reasons, but I decline to give his statement substantial weight. He did not attend to give live evidence and his statement gives rise to questions, not least when he completed his age assessment training, what it consisted of, and whether he has ever participated in a formal process of age assessment.

162. I also note the opinions expressed by Ms Gururajan, Mr Ampofo and Ms McCorry. I have already made reference to what they said during the age assessment process itself, and I give some weight to their opinions about the applicant’s age despite the fact that they did not attend to give oral evidence.

163. I have previously made reference to the opinions expressed by Mr Holmes, the trainee who has been working with the applicant at the HBF. Mr Swirsky was dismissive of his opinion about the applicant’s age, at one stage referring to it as ‘diagnosing age’ and reminding me that there is no currently accepted medical means of ascertaining whether a person has passed eighteen. With respect to Mr Swirsky, I consider those submissions to have gone a little too far. Mr Holmes opinion, which I have set out at some length above was to the effect that the applicant’s way of thinking was more akin to that of an adolescent than an adult male. Given the process of reasoning which took him to that conclusion, I am prepared to place some weight on it, despite the fact that it could not properly be described as expert evidence and despite the fact that Mr Holmes did not attend to give evidence before me.

164. Turning to Mr Menghe’s evidence, I accept Ms Butler’s submission that I should give it limited weight. As he has not been called to give oral evidence, I prefer not to make findings about his conduct, or indeed the nature of his relationship with the applicant, beyond accepting that it was clearly strained for whatever reason. But Ms Butler rightly observes that he has made no witness statement for these proceedings, and that his evidence, such as it is, is confined to the report in the age assessment and a handful of emails. As Ms Butler also observed, even Mr Menghe’s comments do not support the view of the age assessors that the applicant is in the range 23-27; he suggested that the applicant was ‘mature for his stated age of 17 years’ and that he was between the ages of 18 and 20.

165. One of the assessors – Mr Ehimiaghe – made a statement on 18 March 2024 but it adds nothing of any real value to the assessment itself.

166. I did hear evidence from Mr Hassan, however. He is the applicant’s current social worker, and has been since November 2023. Mr Hassan has completed in house age assessment training, although he has not undertaken any age assessments. It is his opinion that the applicant ‘could be older than 18 years of age’. I heard briefly from Mr Hassan and I accept Ms Butler’s submission that I should give his evidence limited weight. He attached weight in his statement to the fact that the applicant is confident and self-assured but, as he accepted when it was put to him by Ms Butler, neither factor is really indicative of majority. He also attached significance in his statement to the applicant’s lined face and receding hair line but neither of those points holds water for reasons which I have set out at some length above.

167. Ms Butler made other cogent points about the evidence of Mr Hassan. Although the applicant evidently downplayed the level of contact between the two of them, the fact remains that Mr Hassan has only met the applicant four times in seven months, and on the last three of those occasions, the applicant was an adult on his own account. Mr Hassan had suggested that the applicant had manifested a degree of independence when he took himself to hospital when he had appendicitis but that is also consistent with an intelligent 17 year old who speaks good English and was in serious pain. Mr Hassan suggested that the applicant was able to budget well for a young man but as Ms Butler established with reference to the departmental records, that might well be attributable to the extensive support he has received on that subject.

Conclusion

168. Taking a step back, and surveying the evidence as a whole, my conclusion is as follows. The age assessment itself suffers from significant flaws, and I am not prepared to give it any real weight. The same is true of the opinions expressed by Mr Menghe and Mr Hassan. On the applicant’s side, there are opinions from a range of professionals, all of whom consider him to be younger than the age suggested by the local authority and who opine that he is the age claimed. I give those opinions weight for the reasons I have set out at some length immediately above.

169. The signal feature of this case, however, is the difficulties I have found there to be with the applicant’s evidence. Having made every possible allowance for the applicant’s age and vulnerability, I have come to the clear conclusion that he has lied about a series of matters which are relevant to my assessment of his age. He lied about his date of birth; his evidence that he knew it to be 19 November 2005 frankly crumbled under Mr Swirsky’s cross-examination. He lied about his level of education and English before he arrived in the UK. He lied about his aunt’s ability to fund his journey to the UK by selling gold jewellery; having just about managed to survive in Sudan, it is inconceivable that she would have had enough jewellery to fund the journey claimed. And the applicant lied about the route he had taken to the UK, given the precision with which he could describe the journey when he was a small child and the imprecision with which he could describe his journey from Africa into Europe. In those respects, I accept Mr Swirsky’s submission that the applicant has sought to mislead the respondent and the Tribunal in various material respects.

170. A person who is otherwise truthful might of course lie for a variety of reasons, as to which I recall what was said by Lord Dyson at [32]-[33] of MA (Somalia) v SSHD [2010] UKSC 49; [2011] 2 All ER 65. But here, in my judgment, the lies go to the very centre of the assessment which I am required to undertake, and I consider that the applicant has lied in order to conceal aspects of his past which might suggest that he is older than claimed. The reason that he has done so is entirely straightforward, as it is plainly known amongst those who would come to the United Kingdom to seek asylum that there are certain advantages to being accepted to be an Unaccompanied Asylum Seeking Child. For this applicant, the principal benefit is quite obvious; he wishes to become a doctor, and to take full advantage of the education which this country has to offer. He is more likely to be able to do so as a UASC, or as a child leaving care to whom the respondent owes a statutory duty.

171. In my judgment, the reality of this case is that the applicant is not the age he was assessed to be by the respondent council. Not only was the assessment flawed, it is undermined by the opinions expressed by those who have observed him with other young people since his arrival in the United Kingdom, and by the opinion of Mr Holmes. As Ms Butler observed, it is even undermined to some extent by the fact that the applicant’s former social worker did not suggest that the applicant was as old as the assessors had concluded. In my judgment, it is likely that the applicant is significantly younger than the assessors thought.

172. As counsel both submitted, and as Langstaff J explained in R (MC) v Liverpool CC [2010] EWHC 2211 (Admin), I am not hidebound by either of the dates of birth suggested by the parties. It is, instead, for the tribunal to consider the most likely date of birth. For the reasons I have given above, I consider it to be clear that the applicant has sought to mislead the respondent and the tribunal about his date of birth and other matters which might have shed light on that question, including his level of education and the route by which he arrived in the United Kingdom. He did so in order to enjoy the well-known benefits to which UASCs are rightly entitled. In my judgment, the applicant adjusted his age for that reason when he arrived in the United Kingdom, but only by a smaller margin than suggested by the respondent. I consider that he had attained his majority when he arrived in the United Kingdom but that he was still a young adult, hence the traits observed by Mr Holmes and the interlocutors to whom I have already referred. They considered those traits to indicate that he was somewhat younger than eighteen. With the benefit of the far greater evidence which is before me, I disagree, and conclude that the applicant was slightly over eighteen when he was seen by these individuals.

173. Drawing on the information I have and the inferences I have drawn, my overall evaluative conclusion is that the applicant was not born on 19 November 2005. He came unstuck when he tried to give his date of birth using the calendar with which he was raised and it is more likely, in my judgment, that the date of birth he gave in answer to Mr Swirsky’s initial question is his true date of birth: 13 Tikimt, or 23 October in the Gregorian calendar. As for his year of birth, because I consider it more likely than not that he was a young adult when he arrived in the UK in April 2022, I conclude that he was born in 2003, and my ultimate conclusion is therefore that his date of birth is 23 October 2003.

174. I have recorded above that there was some disagreement between counsel about margin for error or the benefit of the doubt. I have reminded myself of the authorities cited at [31]-[34] of Ms Butler’s skeleton in that connection. I have also considered what was said by Swift J at [29] of R (HAM) v London Borough of Brent. For my part, I do not discern any difference of approach in the authorities. I am content to assume that the law remains as stated in A v LB Croydon; WK v Kent CC [2009] EWHC 939 (Admin) and R (AS) v Kent CC [2017] UKUT 446 (IAC):

“where, having considered the evidence, the decision maker concludes there is doubt as to whether an individual is over 18 or not, then in those circumstances, the decision maker should conclude that the applicant is under 18.”

175. This is not a case in which I find myself in any such doubt. For the reasons I have given above, I consider it clear that the applicant was over 18 when he arrived in the UK and that he has sought to conceal that fact from the respondent and the tribunal. As Swift J said in R (HAM) v London Borough of Brent, the question is whether the applicant is a child, and not whether he is within an age range that puts him close to being a child. On the balance of probabilities, there is a clear answer to that question, which is that the applicant has never been a child in the UK. Neither margin for error nor the benefit of the doubt are of any assistance to him in the circumstances.

176. Whether the applicant’s account of fearing return to Eritrea on account of his imputed political opinion or his faith is a matter for the Secretary of State for the Home Department and potentially for a judge of the First-tier Tribunal (IAC) thereafter. At the risk of stating the obvious, the conclusions I have expressed in this judgment relate not to that question but to the issue of the applicant’s age.

177. I invite counsel to agree the form of my order. I invite submissions in writing in relation to any other matters consequential upon this judgment which cannot be agreed.

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