JR-2024-LON-000190
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The decision
IN THE UPPER TRIBUNAL JR-2024-LON-000190
IMMIGRATION AND ASYLUM CHAMBER
BETWEEN:
THE KING
(on the application of A)
Applicant
-v-
LIVERPOOL CITY COUNCIL
Respondent
ORDER
Before Upper Tribunal Judge Lane sitting at the Bradford Hearing Centre
HAVING considered all documents lodged and having heard from Mr V Jagadesham of counsel for the applicant and from Mr M Paget of counsel for the respondent at a fact-finding hearing on 27-28 November 2024
IT IS ORDERED AND DECLARED THAT:
(1) The application for judicial review is dismissed for the reasons in the attached judgment.
(2) The applicant was born on 13 May 2004
(4) The respondent’s costs of the total claim including the disclosure application are summarily assessed at £16,442.40.
(5) The applicant shall pay the respondents costs but having the benefit of costs protection under section 26 of Legal Aid, Sentencing and Punishment of Offenders Act 2012) the amount that he is to pay is to be determined on an application by the respondent under regulation 16 of the Civil Legal Aid (Costs) regulations 2013.
(7) There be detailed assessment of the applicant’s publicly funded costs.
(8) Permission to appeal to the Court of Appeal is refused on the basis that there is no arguable error of law in the decision.
Upper Tribunal Judge Lane
18 March 2025
Case No: JR-2024-LON-000190
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Phoenix House,
Bradford
12 January 2025
Before:
UPPER TRIBUNAL JUDGE LANE
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Between:
THE KING
on the application of
BA
Applicant
- and –
LIVERPOOL CITY COUNCIL
Respondent
- - - - - - - - - - - - - - - - - - - -
Vijay Jagadesham
(instructed by Bhatia Best Solicitors), for the Applicant
Michael Paget
(instructed by Liverpool City Council Legal Department) for the Respondent
Hearing date: 27-28 November 2024
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JUDGMENT
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the applicant, likely to lead members of the public to identify the applicant without that individual's express consent. Failure to comply with this order could amount to a contempt of court. This order is made because the applicant is an asylum seeker.
1. The applicant is an Iranian national who asserts that his date of birth is 13 May 2005. Following a ‘brief enquiry’ (the ‘Brief Enquiry’) which was conducted shortly after the applicant's arrival in the UK, the respondent council decided not to accept the applicant's claimed date of birth and attributed to him a date of birth of 13 May 1999. The only issue to be determined by the Tribunal is the applicant's probable date of birth.
Legal Framework
2. 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.
3. 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].
4. In R (CJ) v Cardiff City Council [2011] EWCA Civ 1590; [2012] PTSR 1235, Pitchford LJ (with whom Laws LJ and Lloyd Jones J 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 probabilities without resorting to the concept of discharge of a burden of proof, and a ‘sympathetic assessment of the evidence’ is appropriate.
5. In the course of these proceedings, the parties have agreed a statement of facts:
1. The Applicant is a male from Iran and claims to have been 17 when he arrived in the United Kingdom, with a claimed date of birth of 13 May 2005.
2. Upon arrival in the UK, the Applicant was apprehended by the Home Office and assessed as an adult.
3. The Applicant has claimed asylum with the Home Office which remains outstanding.
4. On 25 November 2022, a Letter Before Action was sent to the Respondent challenging their failure to provide the Applicant with interim support and accommodation as a claimed child, pending a lawful age assessment.
5. The Respondent replied by email on 28 November 2022 confirming that the Applicant would be met the following day and that a Brief Enquiry would be carried out.
6. The Applicant was met by the Respondent’s social workers, Christina Stirrup and Cassie Fitzgerald, on 29 November 2022 for a Brief Enquiry As to Age.
7. The Applicant was assessed as being over the age of 18 and therefore no full Age Assessment was carried out.
8. A letter was sent to the Respondent on 02 December 2022 requesting disclosure of the assessment.
9. This was disclosed by the Respondent on 09 December 2022.
10. A letter was provided to the Respondent on 07 February 2023, produced by the British Red Cross offering further support in relation to the Applicant’s age.
11. On 16 February 2023, the Respondent confirmed by email that they would not be conducting a new assessment as they were of the view that the supporting statement did not contain anything that could undermine the outcome of the existing assessment.
12. On 02 March 2023, a Letter Before Action was sent to the Respondent challenging their refusal to undertake a further assessment of the Applicant’s age.
13. The Respondent responded by email on 07 March 2023 maintaining their position that they will not be conducting a new assessment.
14. Permission for Judicial Review was granted by His Honour Judge Bird sitting as a Judge of the High Court on 12 January 2024 and the matter transferred to the Upper Tribunal (Immigration and Asylum Chamber).
15. The Upper Tribunal gave preliminary directions on 20 February 2024, including a Case Management Review Hearing (“CMR”) on 30 May 2024.
16. The Applicant is currently provided with support and accommodation by the Home Office pursuant to Section 95 of the Immigration and Asylum Act 1999.
On 24 September 2024, I made an order on an application made by the applicant’s solicitors regarding disclosure of the applicant’s WhatsApp account. The solicitors had applied to the Tribunal when the applicant had refused to disclose all entries on the account. I made an order as follows:
The Claimant shall, with his solicitor, by 4pm on 22 October 2024 carry out a proportionate search of his WhatsApp account for material relevant to the determination of his age or date of birth.
The Claimant’s solicitor shall by 4pm on 29 October 2024 serve any updated list of disclosable documents on all other parties and file the same with the Upper Tribunal electronically to age-assessments-inbox@justice.gov.uk along with an updated statement certifying that all material disclosure has been provided and in particular that the search set out above at [3] has been duly carried out.
The Respondent’s Brief Enquiry (29 November 2022)
6. The Brief Enquiry of 29 November 2022 recorded inter alia as follows:
B presented as approx. 5 feet 8 inches tall with a well-developed bone structure and of medium build. B has a fully formed jaw line, prominent Adam's apple, large ears and facial features of an adult and appears significantly older than his claimed age. B has the physical characteristics of an older male such as a deep voice. His demeanour was of someone who is not assertive and there was a time during the assessment that he cried and we again offered him an opportunity to take a break but he declined this. He consistently had a poor posture when sitting talking to us and we took your health condition into consideration, however, he looked as if he was trying to make himself look smaller than he actually is. He told us that he has a condition called Alopecia and this was why he was embarrassed to take off his cap and we put him at ease to continue to brief enquiry, with his cap remaining on his head for the duration of the assessment.’
B, you were asked how old you are and you told the assessors you are 17 years old and that your DOB is 13th May 2005. We asked you if you knew your DOB in the Persian calendar and you told us that it was 13.05.1384. You were asked how you know that this is your age and DOB and you told us that your uncle told you when you were 5 years of age after your parents died. You told us that you then went to live with your uncle. When asked, you could not tell us the year your parents passed away and the year when you went to live with your uncle. You told us that to mark your parents passing you used to visit your parent's grave. You told us that you do not celebrate birthdays in your country.
B, you told us that you are an only child, having no siblings.
The assessors asked you if you had any ID documentation to prove your age and you told us that you do not.
B, you told us that you have never been to school. You told us that you had worked with your uncle as a smuggler for 2 years and when asked how old you were at the time you told us that you did not know.
The assessors made it clear that they were minded to at this time to not accept his claimed age for the following reasons:-
1) B, you have been evasive when asked questions. You said you cannot remember your age at certain points in the assessment, when we asked you specific questions about this. There are inconsistencies in your DOB in Persian and English calendar. B your posture was often poor when sitting talking to us. We think this could have been an attempt to make yourself look smaller although we also considered that it may have been because you were embarrassed about your health condition and we went to great lengths to put you at ease.
2) B, you have already been age assessed as noted in your Home Office interview and you were assessed as an adult. The issue that we have is that the information you have provided today is not substantial enough for us to believe you are a child.
3) B, we took into account your condition of Alopecia when assessing you, however, your physical appearance and demeanour is that of an adult and we agreed with the Home Office assessed age.
Conclusion
Both assessors agreed that B's physical appearance, facial features and demeanour were not that of a 17 year old but that of an adult and we agreed with the view of your age of the immigration officer during his Asylum interview by Home Office.
The Applicants’ Case
7. The applicant relies on his written evidence, in particular his first witness statement at [17] et seq [bundle, 76]. He states, ‘I would visit my grandfather's grave from time to time, particularly during Eid celebrations, and my uncle would often remind me that my grandfather passed away on the day I was born during these visits.’
8. The Brief Enquiry refers to the applicant having been ‘evasive’ answering questions and to ‘inconsistencies’ in his date of birth ‘in Persian and English calendar’ but again no explanation is provided. In any event, the applicant argues that dates of birth are of much less relevance in his culture than elsewhere and the respondent has attached excessive weight to the issue.
The evidence of Ms Helene Santamera, Project Co-ordinator – Refugee Support, at the British Red Cross.
9. The applicant also relies on the witness evidence in the form of a letter dated 2 February 2022 of Helene Santamera, Project Co-ordinator – Refugee Support, at the British Red Cross (BRC). Ms Santamera states that, prior to her current role, she ‘was a lawyer for 13 years, specialising in Human Rights and Refugee law. As a Solicitor I specialised in working with unaccompanied and/or separated children (UASC)'s, I have worked with asylum seekers and refugees, including in Syrian resettlement, with unaccompanied asylum-seeking children and young people who are age disputed.’
10. Regarding the applicant, Ms Santamera states that, ‘since 6th December 2022, I have met B once or twice weekly, either at the Age Dispute drop in at ALM or at the regular drop in at St Brides Church’ and that ‘observing B's behaviours and mannerisms over this time have also helped me form the opinion that he is younger than 18 in age.’ She considered that, ‘from my observations of B, he is much more comfortable and relaxed with the children that have had their age accepted than he is with the adults at the St Brides drop in.’ At a Christmas party during a Friday drop-in, the applicant had ‘gratefully received … teenage boy appropriate presents’ and had asked if he could have a teddy bear which he held and cuddled. She concludes, ‘For all of the reasons stated above, I have no reason to doubt the age that B has given. And for clarity, if I genuinely did have any reason to doubt B, I would not write a support letter for him, it is very important to be able to be of assistance to young people who may have been miss- aged (sic). I take that duty seriously. I would not dilute the veracity of my word where I had genuine reason for doubt.’
11. By an email to the applicant’s solicitors dated 11 September 2024, Ms Santamera explained that she was not willing to provide a formal witness statement or appear in court in support of the applicant. The concern of the BRC with ‘providing evidence at court is that when the service becomes part of legal proceedings, we run the risk of losing the confidence of either party within the proceedings. This is because such proceedings by their very nature are contentious, involving a legal controversy between two parties’ Ms Santamera states that, ‘the BRC’s policy to date has been to refuse requests for witness statements or court appearances in legal proceedings such as those in the present case. It is usual for BRC staff to provide support letters offering a factual account of our interaction with a service user. I have provided as a factual account of interactions with Botan in my letter dated 2 February 2022. B has remained consistent in his behaviours in subsequent interactions since then. I hope these observations will assist proceedings.’
The Respondent’s Case
12. The Brief Enquiry relies substantially on the authors’ assessment of the applicant’s physical appearance. However, the respondent acknowledges that age cannot be determined on appearance alone although it stresses that, in appropriate cases, physical appearance may assume ‘perhaps even pre-eminent weight’ [respondent’s skeleton argument at (29)]. The respondent has considered the letter from Ms Santamera but concluded that it did not invalidate its own assessment. It considered the letter to be evidence of fact only, not expert opinion. The respondent’s case prior to the hearing was that the Tribunal would need to consider the applicant’s credibility as determined from his oral evidence and an assessment of the applicant's physical appearance.
The Hearing : 27-28 November 2024
13. The applicant gave evidence with the assistance of a Kurdish Sorani interpreter. I told the applicant that he should inform me, through the interpreter, should he wish to take a break from giving evidence for any reason and that he should let me know if he did not understand any of the questions put to him. He adopted his witness statements as his evidence in chief. He was cross examined by Mr Paget. He said that he was born in 2005 and that this ‘is my true age.’ He acknowledged that his alopecia may make him look older than he is. The applicant was asked about his Facebook profile [C383] which shows his date of birth as 13 May 1999 and his gender as female. The applicant said that he was helped to set up the Facebook account by other Kurdish Sorani speakers at the hotel where he had stayed when he arrived in the United Kingdom. They had told him that he needed to have the same date of birth on the account as was shown on the Home Office identity document which had been issued to him. Mr Paget put it to the applicant that there was no obvious reason why he needed to put the date of birth attributed to him by the Home Office on a form (Facebook registration) which had no official purpose. The applicant replied that he had no education.
14. The applicant was asked why he had deleted chats on his WhatsApp account before his solicitor could see them. The applicant denied having done so. He had changed his mobile telephone and the old chats had disappeared. The applicant had also been unhappy showing his WhatsApp account to the solicitor because the content was more ‘personal’ than Facebook.
15. At [C384], there are details of changes made the applicant’s Facebook account in March 2024. The applicant said that friends had helped him make the changes. Asked why he had not changed his date of birth, the applicant said he did not how to do so and that ‘I feared it would cause me issues.’
16. At [C388-9], there are Facebook documents with headings ‘Name Change’, ‘Birthday Change’, ‘Remove Phone Number’. However, whilst the dates of the changes are shown (November/December 2023), the changes themselves are not shown. The applicant said that he had been staying at ‘a different hotel’ from the one at which he had initially set up his Facebook account. ‘Different people’ had helped him make the changes. He could not remember what the changes had been or what had prompted him to make them. The ‘different’ friends at the hotel had, like those at the first hotel, told the applicant that he could not change his date of birth.
17. The applicant was asked about his Home Office Asylum Claim Questionnaire (supplementary bundle at [A2] et seq). At [A3] the applicant says, ‘I was born on 13 May 1999.’ The applicant had paid someone to complete the Questionnaire for him. This person had ‘been in a hurry’ and had other clients waiting. He had recorded accurately everything the applicant had said with the exception of his date of birth. The person had taken the date of birth from the applicant’s Home Office identity card.
18. The applicant was asked about his Home Office screening and asylum interviews. In his asylum questionnaire, he said that the Iranian authorities had taken his identity card and birth certificate. In his asylum interview, the applicant said that he had not seen his birth certificate ‘as I was living with my uncle’ [Q25]. At [Q26], he was asked to explain this discrepancy. He denied ever having said that the authorities had taken his documents. In cross examination, the applicant said that he had not understood the questions. He had not contacted his uncle in Iran to help explain the discrepancy as this might ‘cause him difficulties.’
19. At Q28, the applicant was asked about his work in Iran for 2 years as a kolbar (smuggler). He had replied, ‘As a kid i was helping my uncle with his job, became a kolbar at 16 was a kolbar for two years…(sic)’ In cross examination, the applicant said that the interpreter had wrongly interpreted this part of the interview. He had said that he had worked for ‘about two years.’
20. At this point of the cross examination, I asked counsel for both parties to confirm that I correctly understood the possible chronologies arising from the applicant’s evidence. The applicant said that he worked as a kolbar for about 2 years immediately before he came to the United Kingdom (he entered on 29 October 2022). This would mean that he started work in 2020. According to his asylum interview, he had started work as a kolbar at the age of 16 years. If the applicant was born in 1999, then he would have been 21 years old when he started work as a kolbar. If he had been born in 2005, he would have been 15 years old when he started. If he had been born in 2004, he would have been 16 years old and 18 years old when he entered the United Kingdom. Both counsel agreed that those calculations are accurate.
21. There was no re-examination.
The Respondent’s Submissions
22. Mr Paget submitted that the sole issue before the Tribunal had become the applicant’s age. He submitted that the grounds of application [A36-37] relied heavily on the evidence of Ms Santamera of the BRC; it was clear that, at the time the grounds were filed, the applicant’s solicitors were unaware that Ms Santamera would not be prepared to give oral evidence. Her written evidence should attract limited weight as it had not been tested by cross examination and her letter of support had not been endorsed by a statement of truth. The applicant’s own evidence had been unreliable. He had given differing explanations of how he came to have no identity documents, including a birth certificate. His account of using his 1999 date of birth in contexts (viz, Facebook) where there had no reason not to use his true date of birth was not credible. His responses to questions had consisted of repetition of the same bland assertion of his age and his lack of education which had effectively rendered his evidence forensically neutral. Mr Paget submitted that the Brief Enquiry constituted a better indicator of the applicants’ true age than any of the applicant’s evidence.
The Applicant’s submissions
23. Mr Jagadesham submitted that the Tribunal should consider the applicant’s evidence in the context of his age, lack of education and vulnerability as a result of past trauma. The applicant had given a credible account for the loss of his WhatsApp messages. It was also understandable that the applicant would follow the advice of others who had more experience of living in the United Kingdom. The asylum questionnaire had been completed by an untrained ‘non-lawyer’ who had simply copied the applicant’s date of birth from his Home Office identity document. The applicant had been consistent in saying that he had been born on the day his grandfather had died and that his uncle (with whom the applicant had lived from the age of 5 after his own parents had died) had often commented on this, telling the applicant that the date had been 23 Ordibehesht 1384 in the Iranian calendar (13 May 2005 in the Gregorian calendar). Mr Jagadesham submitted that the Brief Enquiry was unreliable. It referred to inconsistencies in the applicants’ account of his date of birth but did not specify what these were. Most significantly, it relied too heavily on the applicant’s physical appearance in determining his age.
Analysis
24. I am not primarily concerned with the legality of the Brief Enquiry age assessment of the respondent save to the extent that I need to consider what weight to give it in my analysis. Any failings in the assessment go to that weight.
25. The Brief Enquiry is, by definition, a summary and robust form of assessment. The assessment sets out the questions which the social workers had put to the applicant, including questions about his journey to the United Kingdom, his health (in particular, his alopecia condition), his lack of education and identity documents. Under the heading ‘Minded too (sic) Session’ the assessors state that they consider the applicant to have been evasive, that there are errors ‘in your DOB in Persian and English calendar. B, your posture was often poor when sitting talking to us. We think this could have been an attempt to make yourself look smaller although we also considered that it may have been because you were embarrassed about your health condition and we went to great lengths to put you at ease.’
26. First, I find that the assessors have given no reasons whatever for concluding that the applicant’s answers to questions had been evasive. The assessors make no attempt to evidence that conclusion and there is nothing in the answers which would render the conclusion axiomatic. Secondly, no attempt is made to explain why the assessors found errors ‘in your DOB in Persian and English calendar.’ The dates are recorded and are consistent with the dates given in the applicant’s witness statement but no ‘errors’ are identified. Thirdly, whilst the assessors found that the applicant may have tried to make himself look smaller, they effectively cancel out this finding by observing that the applicant may have been embarrassed because of his alopecia. Fourthly, I agree with Mr Jagadesham that the Brief Enquiry relies too heavily on the applicant’s physical appearance. In R (B) v Merton London Borough Council [2003] EWHC Admin 1689 Stanley Burnton J concluded that in cases where the applicant was either obviously a child or obviously an adult a decision could be made solely on physical appearance. In cases where it was not obvious, a decision could not be made solely on physical appearance. I agree with Mr Paget that physical appearance can have considerable weight in an assessment of age when other evidence is unreliable and that there is a difference between physical characteristics and physical appearance (see R(AM) v Solihull Metropolitan Borough Council [2012] UKUT 00118 (IAC) albeit obiter). However, when one strips out unsupported allegations of evasion and errors between different calendars, the Brief Enquiry does rely solely on (i) an assessment of the applicant’s physical appearance and (ii) unreasoned deference to the age assessment carried out by the Home Office. Consequently, I find that the probative value of the Brief Enquiry is limited.
27. Mr Paget submitted that the weight attaching to the letter of Ms Santamera was limited. I agree. First, her evidence is not supported by a statement of truth and it was not tested by cross examination. Secondly, I agree with Mr Paget that Ms Santamera is a witness of fact; notwithstanding her long experience of working with young asylum seekers, her opinion evidence is not that of an expert expressing the duties to the Tribunal required by the rules. Moreover, the fact that her evidence may have been given weight in other age assessments is immaterial; I have not seen all the evidence in those assessments so cannot properly judge the value of her evidence in other judicial analyses.
28. I did not find the applicant himself to be an impressive witness. I have taken full account of his vulnerability and that he is (irrespective of my assessment of his age) a young, uneducated man living alone in a foreign country where he cannot speak the language and to which he has made a stressful and arduous journey. I afforded him breaks in the course of giving his evidence. I was satisfied that he understood the questions put to him. I was not satisfied that he gave truthful evidence to the Tribunal.
29. I agree with Mr Paget that the probative weight attaching to his evidence was reduced by the repetitive, learned responses he gave to many of the questions put in cross examination. Whilst repeated responses such as ‘I know when I was born but I am not educated’ and ‘I don’t know exactly how old I am as I’m not educated’ may have adequately answered some of the questions but in answer others the response was evasive. The same is the case, in my opinion, with the applicant’s account of having been born on the same day his grandfather had died. I have found (see below) that the applicant has in the past been in possession of documents which contain details of his true date of birth. In the light of all the evidence, I find that the story about the grandfather is a convenient fiction which the applicant (who otherwise claims to have no knowledge of his true date of birth) has memorised to enable to explain why he can recall his false date of birth. It has every characteristic of a learned response.
30. I find, however, on the balance of probabilities, that what the applicant says about the use of the Home Office identity document is true. I accept that a date of birth of 1999 may have been inserted into the Home Office questionnaire by the person whom the applicant paid to complete it. I accept that the applicant handed this individual his Home Office identity documents and, being illiterate, the applicant may have unwittingly allowed the date from the Home Office identity document to be inserted into the form.
31. In the light of the applicant’s lack of education, including his illiteracy, I also accept that he may have (i) failed generally to appreciate the significance of documents (eg. his Home Office identity document) and that he (ii) may have handed the identity document to third parties who copied his stated date of birth on to his Facebook account without asking them to insert his true date of birth. I find it likely that (even though he did not agree the date of birth on the identity document) the applicant considered that he needed to use a document issued to him by the government of the foreign country in which he found himself living.
32. However, I do not accept that the applicant has given truthful evidence about the disappearance of his Iranian identity documents. I find that the two different accounts (the Iranian authorities took his documents, including his birth certificate/he had never seen his birth certificate) are so different the inconsistency cannot be explained by interpreter error or inaccurate recording of his answer by a Home Office official. I find that, had he been telling the truth, the applicant would not have given such different answers. I find that the applicant has been in possession of the Iranian identity documents and has lied about their whereabouts. I find he has done so because he does not want the United Kingdom authorities or the Tribunal to examine the documents. I find the documents probably contain evidence of the applicant’s age which is inconsistent with the account he has given. I find as a fact that the applicant is aware of his true date of birth, that the date is not what he now claims it be and that he has sought to deceive the United Kingdom authorities as to his true age.
33. I find, therefore, that (i) the evidential value of the Brief Enquiry is poor for the reasons I have given; (ii) the applicant is not a witness of truth and he is aware of his true date of birth but has chosen to conceal it.
34. I have cited above the authorities regarding the role of physical appearance in age assessments. In the present case, physical appearance takes on greater significance because some much of the other evidence (on both sides) is unreliable. I saw no evidence of the applicant attempting to sit in court in a way to make ‘make himself smaller’ (see the Brief Enquiry). He wore his hat in court on account of his alopecia. In my opinion, the applicant presented as a young adult male. He did not, in my opinion, appear to be as old as 25 years (date of birth: 1999) but he looks older than 19 years (date of birth: 2005).
35. In his asylum interview with the Home Office, the applicant said this:
As a kid i was helping my uncle with his job, became a kolbar at 16 was a kolbar for two years, i met a friend at work his name was Kaiwan Karimi, one day we were talking about the dangers of our job and how the iranian government is treating us.(sic) [my emphasis]
36. The applicant entered the United Kingdom in October 2022. Had he worked as a kolbar for two years from the age of 16 and then travelled to the United Kingdom, he would by his own account have been 18 years old when he entered the country. The applicant was evasive when cross examined about this part of his evidence. When the dates and his age were put to him, he claimed not to understand and then said, ‘I don’t know if that calculates to 18 [years old]’. Mr Paget put it to the applicant that, if his claimed date of birth of 2005 is correct, then he would have been only 15 when he worked as a kolbar. Far from failing to understand, the applicant then said that he had been misinterpreted; he had said at the Home Office that he had been ‘about 16’ when he started work as a kolbar. He could not explain why only this part of the interview had been misinterpreted.
37. I find that in his Home Office asylum interview the applicant has given a true account of his activities immediately before he came to the United Kingdom, a true account which he has subsequently tried to deny.
38. I find, therefore, that the applicant was an adult when he entered the United Kingdom. This helps to explain the timing of the application for judicial review. I find that the letter of Ms Santamera prompted the application for judicial review because it offered the applicant the possibility of claiming that he had been a child when he entered the United Kingdom. Prior to the intervention of the BRC, I find that the applicant knew that he was an adult when he arrived and, although not as old as he was deemed to be by the Home Office, he was not concerned that identity documents issued to him showed that he was an adult.
39. Drawing the various threads together, I find that, given the poor probative value of the evidence of both applicant and respondent, my understanding of the age of the applicant derived from his physical appearance is significant and I find that at the hearing presented as a young male aged about 20 years. I find that the appellant’s Home Office asylum contains truthful evidence of the applicant’s activities in Iran before he came to the United Kingdom. By his own account, having worked for two years as a kolbar from the age of 16 years, the applicant was 18 years old when he travelled to the United Kingdom. I find that the applicant was born on 13 May 2004.
40. That is my judgment.
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IMMIGRATION AND ASYLUM CHAMBER
BETWEEN:
THE KING
(on the application of A)
Applicant
-v-
LIVERPOOL CITY COUNCIL
Respondent
ORDER
Before Upper Tribunal Judge Lane sitting at the Bradford Hearing Centre
HAVING considered all documents lodged and having heard from Mr V Jagadesham of counsel for the applicant and from Mr M Paget of counsel for the respondent at a fact-finding hearing on 27-28 November 2024
IT IS ORDERED AND DECLARED THAT:
(1) The application for judicial review is dismissed for the reasons in the attached judgment.
(2) The applicant was born on 13 May 2004
(4) The respondent’s costs of the total claim including the disclosure application are summarily assessed at £16,442.40.
(5) The applicant shall pay the respondents costs but having the benefit of costs protection under section 26 of Legal Aid, Sentencing and Punishment of Offenders Act 2012) the amount that he is to pay is to be determined on an application by the respondent under regulation 16 of the Civil Legal Aid (Costs) regulations 2013.
(7) There be detailed assessment of the applicant’s publicly funded costs.
(8) Permission to appeal to the Court of Appeal is refused on the basis that there is no arguable error of law in the decision.
Upper Tribunal Judge Lane
18 March 2025
Case No: JR-2024-LON-000190
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Phoenix House,
Bradford
12 January 2025
Before:
UPPER TRIBUNAL JUDGE LANE
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
BA
Applicant
- and –
LIVERPOOL CITY COUNCIL
Respondent
- - - - - - - - - - - - - - - - - - - -
Vijay Jagadesham
(instructed by Bhatia Best Solicitors), for the Applicant
Michael Paget
(instructed by Liverpool City Council Legal Department) for the Respondent
Hearing date: 27-28 November 2024
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JUDGMENT
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the applicant, likely to lead members of the public to identify the applicant without that individual's express consent. Failure to comply with this order could amount to a contempt of court. This order is made because the applicant is an asylum seeker.
1. The applicant is an Iranian national who asserts that his date of birth is 13 May 2005. Following a ‘brief enquiry’ (the ‘Brief Enquiry’) which was conducted shortly after the applicant's arrival in the UK, the respondent council decided not to accept the applicant's claimed date of birth and attributed to him a date of birth of 13 May 1999. The only issue to be determined by the Tribunal is the applicant's probable date of birth.
Legal Framework
2. 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.
3. 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].
4. In R (CJ) v Cardiff City Council [2011] EWCA Civ 1590; [2012] PTSR 1235, Pitchford LJ (with whom Laws LJ and Lloyd Jones J 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 probabilities without resorting to the concept of discharge of a burden of proof, and a ‘sympathetic assessment of the evidence’ is appropriate.
5. In the course of these proceedings, the parties have agreed a statement of facts:
1. The Applicant is a male from Iran and claims to have been 17 when he arrived in the United Kingdom, with a claimed date of birth of 13 May 2005.
2. Upon arrival in the UK, the Applicant was apprehended by the Home Office and assessed as an adult.
3. The Applicant has claimed asylum with the Home Office which remains outstanding.
4. On 25 November 2022, a Letter Before Action was sent to the Respondent challenging their failure to provide the Applicant with interim support and accommodation as a claimed child, pending a lawful age assessment.
5. The Respondent replied by email on 28 November 2022 confirming that the Applicant would be met the following day and that a Brief Enquiry would be carried out.
6. The Applicant was met by the Respondent’s social workers, Christina Stirrup and Cassie Fitzgerald, on 29 November 2022 for a Brief Enquiry As to Age.
7. The Applicant was assessed as being over the age of 18 and therefore no full Age Assessment was carried out.
8. A letter was sent to the Respondent on 02 December 2022 requesting disclosure of the assessment.
9. This was disclosed by the Respondent on 09 December 2022.
10. A letter was provided to the Respondent on 07 February 2023, produced by the British Red Cross offering further support in relation to the Applicant’s age.
11. On 16 February 2023, the Respondent confirmed by email that they would not be conducting a new assessment as they were of the view that the supporting statement did not contain anything that could undermine the outcome of the existing assessment.
12. On 02 March 2023, a Letter Before Action was sent to the Respondent challenging their refusal to undertake a further assessment of the Applicant’s age.
13. The Respondent responded by email on 07 March 2023 maintaining their position that they will not be conducting a new assessment.
14. Permission for Judicial Review was granted by His Honour Judge Bird sitting as a Judge of the High Court on 12 January 2024 and the matter transferred to the Upper Tribunal (Immigration and Asylum Chamber).
15. The Upper Tribunal gave preliminary directions on 20 February 2024, including a Case Management Review Hearing (“CMR”) on 30 May 2024.
16. The Applicant is currently provided with support and accommodation by the Home Office pursuant to Section 95 of the Immigration and Asylum Act 1999.
On 24 September 2024, I made an order on an application made by the applicant’s solicitors regarding disclosure of the applicant’s WhatsApp account. The solicitors had applied to the Tribunal when the applicant had refused to disclose all entries on the account. I made an order as follows:
The Claimant shall, with his solicitor, by 4pm on 22 October 2024 carry out a proportionate search of his WhatsApp account for material relevant to the determination of his age or date of birth.
The Claimant’s solicitor shall by 4pm on 29 October 2024 serve any updated list of disclosable documents on all other parties and file the same with the Upper Tribunal electronically to age-assessments-inbox@justice.gov.uk along with an updated statement certifying that all material disclosure has been provided and in particular that the search set out above at [3] has been duly carried out.
The Respondent’s Brief Enquiry (29 November 2022)
6. The Brief Enquiry of 29 November 2022 recorded inter alia as follows:
B presented as approx. 5 feet 8 inches tall with a well-developed bone structure and of medium build. B has a fully formed jaw line, prominent Adam's apple, large ears and facial features of an adult and appears significantly older than his claimed age. B has the physical characteristics of an older male such as a deep voice. His demeanour was of someone who is not assertive and there was a time during the assessment that he cried and we again offered him an opportunity to take a break but he declined this. He consistently had a poor posture when sitting talking to us and we took your health condition into consideration, however, he looked as if he was trying to make himself look smaller than he actually is. He told us that he has a condition called Alopecia and this was why he was embarrassed to take off his cap and we put him at ease to continue to brief enquiry, with his cap remaining on his head for the duration of the assessment.’
B, you were asked how old you are and you told the assessors you are 17 years old and that your DOB is 13th May 2005. We asked you if you knew your DOB in the Persian calendar and you told us that it was 13.05.1384. You were asked how you know that this is your age and DOB and you told us that your uncle told you when you were 5 years of age after your parents died. You told us that you then went to live with your uncle. When asked, you could not tell us the year your parents passed away and the year when you went to live with your uncle. You told us that to mark your parents passing you used to visit your parent's grave. You told us that you do not celebrate birthdays in your country.
B, you told us that you are an only child, having no siblings.
The assessors asked you if you had any ID documentation to prove your age and you told us that you do not.
B, you told us that you have never been to school. You told us that you had worked with your uncle as a smuggler for 2 years and when asked how old you were at the time you told us that you did not know.
The assessors made it clear that they were minded to at this time to not accept his claimed age for the following reasons:-
1) B, you have been evasive when asked questions. You said you cannot remember your age at certain points in the assessment, when we asked you specific questions about this. There are inconsistencies in your DOB in Persian and English calendar. B your posture was often poor when sitting talking to us. We think this could have been an attempt to make yourself look smaller although we also considered that it may have been because you were embarrassed about your health condition and we went to great lengths to put you at ease.
2) B, you have already been age assessed as noted in your Home Office interview and you were assessed as an adult. The issue that we have is that the information you have provided today is not substantial enough for us to believe you are a child.
3) B, we took into account your condition of Alopecia when assessing you, however, your physical appearance and demeanour is that of an adult and we agreed with the Home Office assessed age.
Conclusion
Both assessors agreed that B's physical appearance, facial features and demeanour were not that of a 17 year old but that of an adult and we agreed with the view of your age of the immigration officer during his Asylum interview by Home Office.
The Applicants’ Case
7. The applicant relies on his written evidence, in particular his first witness statement at [17] et seq [bundle, 76]. He states, ‘I would visit my grandfather's grave from time to time, particularly during Eid celebrations, and my uncle would often remind me that my grandfather passed away on the day I was born during these visits.’
8. The Brief Enquiry refers to the applicant having been ‘evasive’ answering questions and to ‘inconsistencies’ in his date of birth ‘in Persian and English calendar’ but again no explanation is provided. In any event, the applicant argues that dates of birth are of much less relevance in his culture than elsewhere and the respondent has attached excessive weight to the issue.
The evidence of Ms Helene Santamera, Project Co-ordinator – Refugee Support, at the British Red Cross.
9. The applicant also relies on the witness evidence in the form of a letter dated 2 February 2022 of Helene Santamera, Project Co-ordinator – Refugee Support, at the British Red Cross (BRC). Ms Santamera states that, prior to her current role, she ‘was a lawyer for 13 years, specialising in Human Rights and Refugee law. As a Solicitor I specialised in working with unaccompanied and/or separated children (UASC)'s, I have worked with asylum seekers and refugees, including in Syrian resettlement, with unaccompanied asylum-seeking children and young people who are age disputed.’
10. Regarding the applicant, Ms Santamera states that, ‘since 6th December 2022, I have met B once or twice weekly, either at the Age Dispute drop in at ALM or at the regular drop in at St Brides Church’ and that ‘observing B's behaviours and mannerisms over this time have also helped me form the opinion that he is younger than 18 in age.’ She considered that, ‘from my observations of B, he is much more comfortable and relaxed with the children that have had their age accepted than he is with the adults at the St Brides drop in.’ At a Christmas party during a Friday drop-in, the applicant had ‘gratefully received … teenage boy appropriate presents’ and had asked if he could have a teddy bear which he held and cuddled. She concludes, ‘For all of the reasons stated above, I have no reason to doubt the age that B has given. And for clarity, if I genuinely did have any reason to doubt B, I would not write a support letter for him, it is very important to be able to be of assistance to young people who may have been miss- aged (sic). I take that duty seriously. I would not dilute the veracity of my word where I had genuine reason for doubt.’
11. By an email to the applicant’s solicitors dated 11 September 2024, Ms Santamera explained that she was not willing to provide a formal witness statement or appear in court in support of the applicant. The concern of the BRC with ‘providing evidence at court is that when the service becomes part of legal proceedings, we run the risk of losing the confidence of either party within the proceedings. This is because such proceedings by their very nature are contentious, involving a legal controversy between two parties’ Ms Santamera states that, ‘the BRC’s policy to date has been to refuse requests for witness statements or court appearances in legal proceedings such as those in the present case. It is usual for BRC staff to provide support letters offering a factual account of our interaction with a service user. I have provided as a factual account of interactions with Botan in my letter dated 2 February 2022. B has remained consistent in his behaviours in subsequent interactions since then. I hope these observations will assist proceedings.’
The Respondent’s Case
12. The Brief Enquiry relies substantially on the authors’ assessment of the applicant’s physical appearance. However, the respondent acknowledges that age cannot be determined on appearance alone although it stresses that, in appropriate cases, physical appearance may assume ‘perhaps even pre-eminent weight’ [respondent’s skeleton argument at (29)]. The respondent has considered the letter from Ms Santamera but concluded that it did not invalidate its own assessment. It considered the letter to be evidence of fact only, not expert opinion. The respondent’s case prior to the hearing was that the Tribunal would need to consider the applicant’s credibility as determined from his oral evidence and an assessment of the applicant's physical appearance.
The Hearing : 27-28 November 2024
13. The applicant gave evidence with the assistance of a Kurdish Sorani interpreter. I told the applicant that he should inform me, through the interpreter, should he wish to take a break from giving evidence for any reason and that he should let me know if he did not understand any of the questions put to him. He adopted his witness statements as his evidence in chief. He was cross examined by Mr Paget. He said that he was born in 2005 and that this ‘is my true age.’ He acknowledged that his alopecia may make him look older than he is. The applicant was asked about his Facebook profile [C383] which shows his date of birth as 13 May 1999 and his gender as female. The applicant said that he was helped to set up the Facebook account by other Kurdish Sorani speakers at the hotel where he had stayed when he arrived in the United Kingdom. They had told him that he needed to have the same date of birth on the account as was shown on the Home Office identity document which had been issued to him. Mr Paget put it to the applicant that there was no obvious reason why he needed to put the date of birth attributed to him by the Home Office on a form (Facebook registration) which had no official purpose. The applicant replied that he had no education.
14. The applicant was asked why he had deleted chats on his WhatsApp account before his solicitor could see them. The applicant denied having done so. He had changed his mobile telephone and the old chats had disappeared. The applicant had also been unhappy showing his WhatsApp account to the solicitor because the content was more ‘personal’ than Facebook.
15. At [C384], there are details of changes made the applicant’s Facebook account in March 2024. The applicant said that friends had helped him make the changes. Asked why he had not changed his date of birth, the applicant said he did not how to do so and that ‘I feared it would cause me issues.’
16. At [C388-9], there are Facebook documents with headings ‘Name Change’, ‘Birthday Change’, ‘Remove Phone Number’. However, whilst the dates of the changes are shown (November/December 2023), the changes themselves are not shown. The applicant said that he had been staying at ‘a different hotel’ from the one at which he had initially set up his Facebook account. ‘Different people’ had helped him make the changes. He could not remember what the changes had been or what had prompted him to make them. The ‘different’ friends at the hotel had, like those at the first hotel, told the applicant that he could not change his date of birth.
17. The applicant was asked about his Home Office Asylum Claim Questionnaire (supplementary bundle at [A2] et seq). At [A3] the applicant says, ‘I was born on 13 May 1999.’ The applicant had paid someone to complete the Questionnaire for him. This person had ‘been in a hurry’ and had other clients waiting. He had recorded accurately everything the applicant had said with the exception of his date of birth. The person had taken the date of birth from the applicant’s Home Office identity card.
18. The applicant was asked about his Home Office screening and asylum interviews. In his asylum questionnaire, he said that the Iranian authorities had taken his identity card and birth certificate. In his asylum interview, the applicant said that he had not seen his birth certificate ‘as I was living with my uncle’ [Q25]. At [Q26], he was asked to explain this discrepancy. He denied ever having said that the authorities had taken his documents. In cross examination, the applicant said that he had not understood the questions. He had not contacted his uncle in Iran to help explain the discrepancy as this might ‘cause him difficulties.’
19. At Q28, the applicant was asked about his work in Iran for 2 years as a kolbar (smuggler). He had replied, ‘As a kid i was helping my uncle with his job, became a kolbar at 16 was a kolbar for two years…(sic)’ In cross examination, the applicant said that the interpreter had wrongly interpreted this part of the interview. He had said that he had worked for ‘about two years.’
20. At this point of the cross examination, I asked counsel for both parties to confirm that I correctly understood the possible chronologies arising from the applicant’s evidence. The applicant said that he worked as a kolbar for about 2 years immediately before he came to the United Kingdom (he entered on 29 October 2022). This would mean that he started work in 2020. According to his asylum interview, he had started work as a kolbar at the age of 16 years. If the applicant was born in 1999, then he would have been 21 years old when he started work as a kolbar. If he had been born in 2005, he would have been 15 years old when he started. If he had been born in 2004, he would have been 16 years old and 18 years old when he entered the United Kingdom. Both counsel agreed that those calculations are accurate.
21. There was no re-examination.
The Respondent’s Submissions
22. Mr Paget submitted that the sole issue before the Tribunal had become the applicant’s age. He submitted that the grounds of application [A36-37] relied heavily on the evidence of Ms Santamera of the BRC; it was clear that, at the time the grounds were filed, the applicant’s solicitors were unaware that Ms Santamera would not be prepared to give oral evidence. Her written evidence should attract limited weight as it had not been tested by cross examination and her letter of support had not been endorsed by a statement of truth. The applicant’s own evidence had been unreliable. He had given differing explanations of how he came to have no identity documents, including a birth certificate. His account of using his 1999 date of birth in contexts (viz, Facebook) where there had no reason not to use his true date of birth was not credible. His responses to questions had consisted of repetition of the same bland assertion of his age and his lack of education which had effectively rendered his evidence forensically neutral. Mr Paget submitted that the Brief Enquiry constituted a better indicator of the applicants’ true age than any of the applicant’s evidence.
The Applicant’s submissions
23. Mr Jagadesham submitted that the Tribunal should consider the applicant’s evidence in the context of his age, lack of education and vulnerability as a result of past trauma. The applicant had given a credible account for the loss of his WhatsApp messages. It was also understandable that the applicant would follow the advice of others who had more experience of living in the United Kingdom. The asylum questionnaire had been completed by an untrained ‘non-lawyer’ who had simply copied the applicant’s date of birth from his Home Office identity document. The applicant had been consistent in saying that he had been born on the day his grandfather had died and that his uncle (with whom the applicant had lived from the age of 5 after his own parents had died) had often commented on this, telling the applicant that the date had been 23 Ordibehesht 1384 in the Iranian calendar (13 May 2005 in the Gregorian calendar). Mr Jagadesham submitted that the Brief Enquiry was unreliable. It referred to inconsistencies in the applicants’ account of his date of birth but did not specify what these were. Most significantly, it relied too heavily on the applicant’s physical appearance in determining his age.
Analysis
24. I am not primarily concerned with the legality of the Brief Enquiry age assessment of the respondent save to the extent that I need to consider what weight to give it in my analysis. Any failings in the assessment go to that weight.
25. The Brief Enquiry is, by definition, a summary and robust form of assessment. The assessment sets out the questions which the social workers had put to the applicant, including questions about his journey to the United Kingdom, his health (in particular, his alopecia condition), his lack of education and identity documents. Under the heading ‘Minded too (sic) Session’ the assessors state that they consider the applicant to have been evasive, that there are errors ‘in your DOB in Persian and English calendar. B, your posture was often poor when sitting talking to us. We think this could have been an attempt to make yourself look smaller although we also considered that it may have been because you were embarrassed about your health condition and we went to great lengths to put you at ease.’
26. First, I find that the assessors have given no reasons whatever for concluding that the applicant’s answers to questions had been evasive. The assessors make no attempt to evidence that conclusion and there is nothing in the answers which would render the conclusion axiomatic. Secondly, no attempt is made to explain why the assessors found errors ‘in your DOB in Persian and English calendar.’ The dates are recorded and are consistent with the dates given in the applicant’s witness statement but no ‘errors’ are identified. Thirdly, whilst the assessors found that the applicant may have tried to make himself look smaller, they effectively cancel out this finding by observing that the applicant may have been embarrassed because of his alopecia. Fourthly, I agree with Mr Jagadesham that the Brief Enquiry relies too heavily on the applicant’s physical appearance. In R (B) v Merton London Borough Council [2003] EWHC Admin 1689 Stanley Burnton J concluded that in cases where the applicant was either obviously a child or obviously an adult a decision could be made solely on physical appearance. In cases where it was not obvious, a decision could not be made solely on physical appearance. I agree with Mr Paget that physical appearance can have considerable weight in an assessment of age when other evidence is unreliable and that there is a difference between physical characteristics and physical appearance (see R(AM) v Solihull Metropolitan Borough Council [2012] UKUT 00118 (IAC) albeit obiter). However, when one strips out unsupported allegations of evasion and errors between different calendars, the Brief Enquiry does rely solely on (i) an assessment of the applicant’s physical appearance and (ii) unreasoned deference to the age assessment carried out by the Home Office. Consequently, I find that the probative value of the Brief Enquiry is limited.
27. Mr Paget submitted that the weight attaching to the letter of Ms Santamera was limited. I agree. First, her evidence is not supported by a statement of truth and it was not tested by cross examination. Secondly, I agree with Mr Paget that Ms Santamera is a witness of fact; notwithstanding her long experience of working with young asylum seekers, her opinion evidence is not that of an expert expressing the duties to the Tribunal required by the rules. Moreover, the fact that her evidence may have been given weight in other age assessments is immaterial; I have not seen all the evidence in those assessments so cannot properly judge the value of her evidence in other judicial analyses.
28. I did not find the applicant himself to be an impressive witness. I have taken full account of his vulnerability and that he is (irrespective of my assessment of his age) a young, uneducated man living alone in a foreign country where he cannot speak the language and to which he has made a stressful and arduous journey. I afforded him breaks in the course of giving his evidence. I was satisfied that he understood the questions put to him. I was not satisfied that he gave truthful evidence to the Tribunal.
29. I agree with Mr Paget that the probative weight attaching to his evidence was reduced by the repetitive, learned responses he gave to many of the questions put in cross examination. Whilst repeated responses such as ‘I know when I was born but I am not educated’ and ‘I don’t know exactly how old I am as I’m not educated’ may have adequately answered some of the questions but in answer others the response was evasive. The same is the case, in my opinion, with the applicant’s account of having been born on the same day his grandfather had died. I have found (see below) that the applicant has in the past been in possession of documents which contain details of his true date of birth. In the light of all the evidence, I find that the story about the grandfather is a convenient fiction which the applicant (who otherwise claims to have no knowledge of his true date of birth) has memorised to enable to explain why he can recall his false date of birth. It has every characteristic of a learned response.
30. I find, however, on the balance of probabilities, that what the applicant says about the use of the Home Office identity document is true. I accept that a date of birth of 1999 may have been inserted into the Home Office questionnaire by the person whom the applicant paid to complete it. I accept that the applicant handed this individual his Home Office identity documents and, being illiterate, the applicant may have unwittingly allowed the date from the Home Office identity document to be inserted into the form.
31. In the light of the applicant’s lack of education, including his illiteracy, I also accept that he may have (i) failed generally to appreciate the significance of documents (eg. his Home Office identity document) and that he (ii) may have handed the identity document to third parties who copied his stated date of birth on to his Facebook account without asking them to insert his true date of birth. I find it likely that (even though he did not agree the date of birth on the identity document) the applicant considered that he needed to use a document issued to him by the government of the foreign country in which he found himself living.
32. However, I do not accept that the applicant has given truthful evidence about the disappearance of his Iranian identity documents. I find that the two different accounts (the Iranian authorities took his documents, including his birth certificate/he had never seen his birth certificate) are so different the inconsistency cannot be explained by interpreter error or inaccurate recording of his answer by a Home Office official. I find that, had he been telling the truth, the applicant would not have given such different answers. I find that the applicant has been in possession of the Iranian identity documents and has lied about their whereabouts. I find he has done so because he does not want the United Kingdom authorities or the Tribunal to examine the documents. I find the documents probably contain evidence of the applicant’s age which is inconsistent with the account he has given. I find as a fact that the applicant is aware of his true date of birth, that the date is not what he now claims it be and that he has sought to deceive the United Kingdom authorities as to his true age.
33. I find, therefore, that (i) the evidential value of the Brief Enquiry is poor for the reasons I have given; (ii) the applicant is not a witness of truth and he is aware of his true date of birth but has chosen to conceal it.
34. I have cited above the authorities regarding the role of physical appearance in age assessments. In the present case, physical appearance takes on greater significance because some much of the other evidence (on both sides) is unreliable. I saw no evidence of the applicant attempting to sit in court in a way to make ‘make himself smaller’ (see the Brief Enquiry). He wore his hat in court on account of his alopecia. In my opinion, the applicant presented as a young adult male. He did not, in my opinion, appear to be as old as 25 years (date of birth: 1999) but he looks older than 19 years (date of birth: 2005).
35. In his asylum interview with the Home Office, the applicant said this:
As a kid i was helping my uncle with his job, became a kolbar at 16 was a kolbar for two years, i met a friend at work his name was Kaiwan Karimi, one day we were talking about the dangers of our job and how the iranian government is treating us.(sic) [my emphasis]
36. The applicant entered the United Kingdom in October 2022. Had he worked as a kolbar for two years from the age of 16 and then travelled to the United Kingdom, he would by his own account have been 18 years old when he entered the country. The applicant was evasive when cross examined about this part of his evidence. When the dates and his age were put to him, he claimed not to understand and then said, ‘I don’t know if that calculates to 18 [years old]’. Mr Paget put it to the applicant that, if his claimed date of birth of 2005 is correct, then he would have been only 15 when he worked as a kolbar. Far from failing to understand, the applicant then said that he had been misinterpreted; he had said at the Home Office that he had been ‘about 16’ when he started work as a kolbar. He could not explain why only this part of the interview had been misinterpreted.
37. I find that in his Home Office asylum interview the applicant has given a true account of his activities immediately before he came to the United Kingdom, a true account which he has subsequently tried to deny.
38. I find, therefore, that the applicant was an adult when he entered the United Kingdom. This helps to explain the timing of the application for judicial review. I find that the letter of Ms Santamera prompted the application for judicial review because it offered the applicant the possibility of claiming that he had been a child when he entered the United Kingdom. Prior to the intervention of the BRC, I find that the applicant knew that he was an adult when he arrived and, although not as old as he was deemed to be by the Home Office, he was not concerned that identity documents issued to him showed that he was an adult.
39. Drawing the various threads together, I find that, given the poor probative value of the evidence of both applicant and respondent, my understanding of the age of the applicant derived from his physical appearance is significant and I find that at the hearing presented as a young male aged about 20 years. I find that the appellant’s Home Office asylum contains truthful evidence of the applicant’s activities in Iran before he came to the United Kingdom. By his own account, having worked for two years as a kolbar from the age of 16 years, the applicant was 18 years old when he travelled to the United Kingdom. I find that the applicant was born on 13 May 2004.
40. That is my judgment.
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