JR-2024-LON-001201
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The decision
JR-2024-LON-001201
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
ARO
[By his Litigation Friend, Afnan Khalid]
Applicant
and
London Borough of Islington
Respondent
FINAL ORDER
BEFORE Upper Tribunal Judge Norton-Taylor and Upper Tribunal Judge Loughran
HAVING considered all documents lodged and having heard Mr O Persey of counsel, instructed by Osbornes Law, for the Applicant and Mr H Harrop-Griffiths of counsel, instructed by the Legal Services Department of the Respondent at a hearing on 28-31 January 2025
IT IS DECLARED THAT:
(1) The Applicant’s date of birth is 20 September 2007
IT IS ORDERED THAT:
(1) The application for judicial review is allowed for the reasons in the attached judgment.
(2) The Respondent shall hereafter treat the Applicant in accordance with his claimed age and provide him with support and services on that basis in accordance with the Children Act 1989.
(3) The Respondent’s decision dated 8 December 2023 that the Applicant was assessed to be significantly over 16 years old is quashed.
(4) The Applicant and his brother, MH, are granted anonymity in the following terms:
"Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant and his half-brother who was a witness in these proceedings are granted anonymity.
The applicant will be referred to in these proceedings as ARO.
The applicant’s half-brother will be referred to in these proceedings as MH.
No-one shall publish or reveal any information, including the name or address of the applicant, MH and their family members, likely to lead members of the public to identify the applicant and/or MH. Failure to comply with this direction could amount to a contempt of court.”
(5) The order for interim relief made on 24 April 2024 is discharged.
Costs
(6) The Respondent shall pay the Applicant’s costs of the claim for judicial review, on a standard basis, to be assessed if not agreed.
(7) The Respondent shall pay 60% of the Applicant’s costs, on account, within 21 days of receiving the Applicant’s bill of costs.
(8) There shall be a detailed assessment of the Applicant’s publicly funded costs.
Reasons
(9) We are not persuaded by the Applicant’s submissions to make an order on an indemnity basis. Having considered all the circumstances, the relevant case law and the parties’ submissions we find that the Respondent’s conduct was not unreasonable to a high degree. The particular circumstances of the case do not take it outside the norm and do not justify an order for indemnity costs.
Permission to appeal
(10) The Respondent having made no application for permission to appeal, permission to appeal is refused.
Signed: G. Loughran
Upper Tribunal Judge Loughran
Dated: 15 May 2025
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): 16/05/2025
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-2024-LON-001201
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
15 May 2025
Before:
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
UPPER TRIBUNAL JUDGE LOUGHRAN
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Between:
THE KING
on the application of
ARO
[By his litigation friend Afnan Khalid]
Applicant
- and -
LONDON BOROUGH OF ISLINGTON
Respondent
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Mr O Persey (Counsel)
(instructed by Osbornes Law), for the applicant
Mr H Harrop-Griffiths (Counsel)
(instructed by London Borough of Islington legal services department) for the respondent
Hearing dates: 28-31 January 2025
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant and his half-brother who was a witness in these proceedings are granted anonymity.
The applicant will be referred to in these proceedings as ARO.
The applicant’s half-brother will be referred to in these proceedings as MH.
No-one shall publish or reveal any information, including the name or address of the applicant, MH and their family members, likely to lead members of the public to identify the applicant and/or MH. Failure to comply with this direction could amount to a contempt of court.
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J U D G M E N T
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Judge Loughran:
Introduction
1. This judgment follows from a fact-finding hearing conducted over four days for the purpose of determining the applicant’s age and date of birth. The applicant asserts that he was born on 20 September 2007. Following a visit with the applicant on 7 December 2023, the respondent found him to be in his mid-20s.
2. It is common ground that the applicant is a Sudanese national, who arrived in the United Kingdom on 4 December 2023 and claimed asylum. It is the applicant’s case that he was 16 years old on his arrival. However, the Home Office decided to treat the applicant as an adult, notwithstanding his claim to be a child, because two officers separately determined that the applicant’s physical appearance/demeanour very strongly suggested that he was “significantly over 18 years of age and no other credible evidence exists to the contrary.” The Home Office concluded that the more probable date of birth was 20 September 1999.
3. The applicant was transferred to NASS accommodation and on 7 December 2023 he was visited by Gaby Couchman and Atiqullah Sayed of the London Borough of Islington for what they say was a “Welfare Assessment.” As outlined above, they concluded that he was in his mid-20s and therefore he would not be accepted for any further assessment of support under Children’s Services.
4. On 8 March 2024, the applicant brought this claim for judicial review challenging the respondent’s decision. Permission to apply for judicial review was granted by Neil Cameron KC, sitting as a Deputy High Court Judge, on 24 April 2024. The applicant’s application for interim relief was also granted and the respondent was ordered to treat the applicant as a child and provide him with accommodation and support under sections 17 and 20 of the Children Act 1989 until the claim was determined or until further order.
5. In line with usual practice, the case was transferred to the Upper Tribunal and was actively case managed. By an application notice dated 16 October 2024, the respondent sought to set aside the order granting interim relief. In an order sealed on 13 November 2024, Upper Tribunal Judge Smith refused the application.
Anonymity
6. On 24 April 2024, Neil Cameron KC sitting as a Deputy High Court Judge made an anonymity order in the following terms:
“Pursuant to CPR r.39.2, the identity of the Claimant shall not be directly or indirectly disclosed and these proceedings shall be known as ‘R(ARO) (by their litigation friend, Erinç Argun Kayim) v London Borough of Islington.”
7. The applicant claims to be a child and has made a protection claim. We are therefore satisfied that the applicant should continue to be granted anonymity. We have also considered whether the applicant’s half-brother who gave evidence before us should also be granted anonymity as we note that he has been granted leave to remain on the basis of being a refugee. Neither party objected to him being granted anonymity. We therefore make a direction for anonymity in the terms outlined in the anonymity direction above.
8. To comply with this direction we will refer to the applicant’s family members by their relationship to the applicant rather than by their name. The applicant claims to have four older half-brothers including MH. We shall refer to the other half-brothers as B2, B3 and B4. The applicant claims to have two younger full brothers who we will refer to as B5 and B6.
Preliminary Issues
9. On 17 January 2025, the applicant made an application to rely on an addendum report by an independent social worker, Sarah Edwards and a letter from Capital City College. On 23 January 2025, the respondent made an application to cross-examine Ms Edwards. In an order dated 24 January 2025, the applicant’s application was granted and it was recorded that the respondent’s application would be determined as a preliminary matter at the fact-finding hearing.
10. Mr Harrop-Griffiths explained at the hearing that the respondent now wished to cross-examine Ms Edwards because the addendum report “is so awful, it needs cross-examination to see what she’s going on about.” He submitted that the “two most egregious” issues in her report were that (1) she had a misdirected herself in law and (2) made a mistake of fact. Mr Harrop-Griffiths confirmed that it was the respondent’s position that those points combined with the criticisms made in the original report in the respondent’s skeleton argument demonstrated that Ms Edwards was biased towards the applicant. Mr Harrop-Griffiths confirmed that he only wanted to cross-examine Ms Edwards in respect of the addendum report and not her original report.
11. Having been informed that Ms Edwards would be able to give evidence remotely on Thursday 30 January 2025, we granted the respondent’s application.
Conduct of the Litigation
12. At this juncture we wish to highlight various issues with the respondent’s conduct of this litigation.
Late application to cross examine Ms Edwards
13. As outlined above, the respondent made an application to cross-examine Ms Edwards on 23 January 2025, only four days before the fact-finding hearing was listed to start. We accept that the respondent was only provided with the addendum report on 17 January 2025. However, it is the respondent’s position that the request for cross-examination of Ms Edwards is made pursuant to the order made by Upper Tribunal Smith on 13 November 2024 and in particular her comments at [24]:
“I do not accept Mr Persey’s submission that the Applicant’s case is now stronger than it was when the Deputy Judge made the order for support. He relies on the independent social worker report but that of course may need to be revisited by that social worker in light of the new evidence. It may be that the Respondent will now wish to cross-examine that social worker in light of the new evidence.”
14. The respondent was provided with Ms Edward’s original age assessment report on 25 July 2024 and was made aware that the applicant intended to instruct Ms Edwards to provide an addendum report at the hearing on 13 November 2024 to address the new evidence the respondent relied on. As the request to cross-examine was made pursuant to Upper Tribunal Judge Smith’s decision, we consider that the application should have been made soon after that decision and certainly before 23 January 2025.
15. It is very convenient that Ms Edwards was available for cross-examination and could be incorporated into time allocated for the hearing, given how late the application was.
Disclosure of Social Care records
16. The applicant applied for permission to admit and rely on the applicant’s social care records on 27 January 2025. The applicant’s representatives requested those through correspondence to the respondent on 7 December 2024. We are of the view that the request should not have been necessary and the social care records should have been proactively disclosed within these proceedings.
Cross-examination on evidence that had not been disclosed
17. During cross-examination, Mr Harrop-Griffiths asked MH questions about evidence obtained from Facebook that had not been disclosed to the applicant, his legal representatives or the panel prior to the questions being asked. This naturally caused some confusion.
18. In response to our questions, Mr Harrop-Griffiths explained that he had only received the new evidence on Monday 27 January at 9.59pm and that it had been emailed to him by Ms Couchman. When we asked if he was aware that the new evidence had not been filed and served he said that he was not planning to put it into evidence and did not think the evidence was controversial. We asked Mr Harrop-Griffiths if he thought he could put matters to a witness in respect of evidence that had not been served or filed and he accepted that when it was “put like that” he understood that he should have put it in evidence. Mr Harrop-Griffiths did not seek admission of the new evidence and confirmed that he would not ask any further questions in respect of that evidence.
Piecemeal and Delayed Disclosure
19. As outlined above, this matter was actively case managed by the Upper Tribunal after its transfer. There were two case management hearings and an interim relief hearing, in addition to written directions. Notwithstanding that case management, the respondent only disclosed key documents they wished to rely on during the course of hearing.
20. After the lunch break on the second day Mr Harrop-Griffiths informed us that Mr Sayed (who was scheduled to give evidence) was not present because over the lunch break Mr Sayed had showed him handwritten notes of his and Ms Couchman’s visit with the applicant on 7 December 2023 and he had gone to get copies of those notes. Mr Persey informed us that on 5 February 2024 the applicant’s representatives had expressly asked for disclosure of any notes completed by the social workers in relation to the visit and on 12 February 2024 they had requested confirmation of any typed or handwritten notes taken during the visit.
21. Mr Harrop-Griffiths informed us that the handwritten notes had not been disclosed when the applicant requested them because Ms Couchman was away between January and February 2024 and Mr Sayed had not been informed that they were required.
22. On the morning of the third day the respondent disclosed three emails between Ms Couchman and Mr Sayed. The first email is from Mr Sayed to Ms Couchman asking if she agreed with the brief notes of their visit to see the applicant. It is dated 8 December 2023. The second email is Ms Couchman’s response and is also dated 8 December 2023. The third email is from Mr Sayed, dated 22 December 2023, explaining that he visited the applicant the day before and had given him a letter, which was attached to the email. That email was dated 22 December 2023. We were also provided with a copy of the letter that Mr Sayed gave to the applicant, which is headed ‘Brief inquiry of age’ and is dated 8 December 2023, although that letter had already been included in the bundle.
23. Mr Persey indicated that he was content for the emails to be admitted, but applied to cross-examine Mr Sayed on their contents. We were able to grant the application because Mr Sayed was present in court and we were able to accommodate further cross-examination within the time allocated for the hearing.
24. It was Ms Couchman’s oral evidence that her and Mr Sayed’s visit had been a welfare assessment and explained that they have a generic form that is used for welfare. We asked to be provided with a copy of the generic welfare assessment form, which was subsequently provided.
25. We were able to proceed with the hearing despite the repeated delayed disclosure of key information. However, this could have caused serious delays and is clearly unsatisfactory.
Possible contempt of court/data breach
26. We observed that the printout of one of the emails appeared to be from ‘Ryman Fleet Street’. This concerned us, given that an anonymity order was in place and the email included the applicant’s personal data.
27. We raised our concerns at the end of the evidence on day three. Mr Harrop-Griffiths informed us that the email said ‘Ryman Fleet Street’ because it was the nearest place to court that Mr Sayed could have the emails printed to provide hard copies to us and the applicant. The emails were forwarded to Rymans who printed the emails out. After the emails were printed Mr Sayed ensured that they were “twice deleted”. Mr Harrop-Griffiths addressed us on the terms on the anonymity order in place. He submitted that there was no breach because the applicant’s identity had not been disclosed in connection with these proceedings. We informed the parties that we would give them time to consider the issue and take instructions and would address the issue on day four.
28. At the outset of day four, we informed the parties that we were not going to find that there was a breach of the anonymity order, but would make a new anonymity order so that it was clear in respect of what it covered. Neither party objected to MH being included in the anonymity order and we informed the party of the terms of the order as outlined above.
29. We informed the parties that we had decided to take no further action in respect of the potential data breach. We stated that the respondent would need to consider whether there had been a breach and noted that a manager from the team was in court, indicating to us that they were taking the matter seriously. We also stated that it was a matter for the applicant to consider his position in respect of a possible data breach.
Lack of Legal Oversight
30. It appears that a lack of legal oversight may have caused, or at least contributed to, issues with the respondent’s conduct of this litigation.
31. Ms Couchman is the instructing lay client and the respondent’s legal department is the instructing professional client. We note that Ms Couchman was in court throughout the proceedings. As far as we aware no one was present from the legal department at any stage during the hearing.
32. As highlighted above, Mr Harrop-Griffiths informed us that he had received Facebook disclosure from Ms Couchman by email on Monday 27 January. In response to our questions, he explained that Ms Couchman had emailed him directly and not through his professional clients, the respondent’s legal department. He explained that he did not believe that his professional clients were informed, nor had they been copied in.
33. In cross-examination, Ms Couchman confirmed that it was the legal department’s responsibility that the respondent’s duty of candour is complied with and to ensure that all the necessary information is disclosed. She explained the process as that the legal department contacts the relevant people/team and tell them what information they are required to disclose.
34. We note that usually in public law proceedings where there is a professional and a lay client, the professional client acts as a conduit between counsel and the lay client. This did not seem to happen in this case. We do not directly criticise the roles adopted by the respondent and note that this may well be on account of a lack of resources and an overworked legal department. However, it does appear to us that if the professional client had been more actively involved the issues outlined above may have been avoided.
35. We make these observations in the hope that they will assist the respondent in its conduct of litigation in the future.
The applicant’s case in summary
36. The applicant claims he was born in a village called Karnoi in the Darfur region of Sudan, but he does not have any memories of living in Karnoi, because he and his family moved to a neighbourhood called El Wihda in Al Fashir when he was still young. The applicant lived with his mother, father, two younger brothers (B5 and B6) and sister. The applicant thinks B5, the oldest of his two younger brothers, is approximately 13-14 years old and B6, the younger of his two younger brothers is approximately 10-11 years old. He thinks his sister is approximately 7-8 years old.
37. The applicant’s mother was his father’s second wife. The applicant’s father had four sons from his first marriage who visited the applicant’s family regularly. The applicant does not know their ages, but knew that they were older than him and describes them as all being married now. As outlined above, we will refer to these brothers as MH, B2, B3 and B4.
38. The applicant claims that he fled Sudan in or around August 2023 due to the ongoing war in that country. He was scared he would be kidnapped by the Rapid Support Forces because three of his friends from the neighbourhood had been. He states that his parents arranged for him to travel to Libya. From Libya he travelled to Tunisia. From Tunisia he travelled to Lampedusa by boat where he was stopped by the Italian authorities, who recorded that the applicant was aged 19. From Italy the applicant travelled to France before travelling on to the UK by hiding in a vehicle. As outlined above, the applicant arrived in the UK on 4 December 2023.
39. The applicant asserts that he knows his date of birth and age because he was told several times by his mother. He remembers being told when he was approximately 5-6 years old before starting school and that teachers also recited their age and date of birth in class.
The legal framework
40. The skeleton arguments provided by Mr Persey and Mr Harrop-Griffiths contain helpful references to the relevant authorities on age assessments undertaken by local authorities and the approach to be followed by fact-finding tribunals. There is little, if any, real dispute between the parties as to the relevant legal framework. Accordingly, we provide what we consider to be an appropriate summary of the main propositions to which we direct ourselves in this case:
(a) There is no burden of proof on an individual to prove their age. We are not bound to choose one or other of the parties’ positions;
(b) A Merton-compliant age assessment requires procedural fairness, which in turn relates to the provision of a suitable interpreter (where necessary), the absence of any predisposition as to age, the presence of an appropriate adult, adequate reasons for conclusions reached, an acknowledgement of the limited utility of relying on physical appearance and demeanour, and having a “minded-to” procedure in which the individual is given an opportunity to respond to concerns prior to a final conclusion being reached;
(c) All relevant evidence must be considered in the round;
(d) At a fact-finding hearing, it is the substance of the evidence which is of primary importance. Matters going to process are unlikely to be of decisive importance;
(e) Issues of vulnerability must be taken into account insofar as relevant;
(f) The fact that an individual has been untruthful about one aspect of their claim does not mean that the same necessarily applies to the rest of their evidence;
(g) The standard of proof is that of the balance of probabilities.
41. In respect of the need for caution when evaluating physical appearance, we note the recent observations of Fordham J at [4] of his permission judgment in R (oao Karimi) v Sheffield City Council [2024] EWHC 93 (Admin), that there “is a wealth of case law, as well as important guidance, which warns about the importance of not misunderstanding or overemphasising physical characteristics.”
42. Any reliance on an application of the “benefit of the doubt” should be treated with caution. It is not a requirement of fairness that a person be afforded any such benefit: see HAM v London Borough of Brent [2022] EWHC 1924 (Admin), at [39]. Further, and having regard to the immigration and asylum context (which is in certain respects analogous), there is no substantive principle of law that a person should be given the “benefit of the doubt”: see KS (benefit of the doubt) [2014] UKUT 552 (IAC). Rather, the evidence of a person must be assessed in the round and in the context of any vulnerabilities and other relevant matters which might have an impact on that evidence.
43. For the avoidance of any doubt, we confirm that we have had regard to all of the authorities referred to in the skeleton arguments.
The evidence
44. The parties provided an agreed trial bundle, indexed and paginated A1-F782, with an agreed statement of facts and issues and a witness template document, and an agreed supplementary trial bundle with an amended witness template document, indexed and paginated A1-D495.
45. As outlined above, further disclosure was provided from the respondent during the course of the hearing. This included, Ms Sayed’s handwritten notes of the visit with the applicant on 7 December 2023, emails between Mr Sayed and Ms Couchman and an example of a UASC initial welfare assessment form. The example UASC initial welfare assessment form was provided on our request.
46. We outline what we consider to be the key pieces of evidence relied on by the parties. It should not be inferred that if the evidence is not outlined below it has not been considered. We have carefully considered all the evidence before us.
Home Office Assessing Officer’s Report – applicant’s stated age disputed by the Home Office
47. The only assessment of the applicant’s age not to be accompanied by a witness statement or oral evidence by its author(s) is the Home Office assessment that took place on 4 December 2023. We understand that this assessment was undertaken prior to the applicant’s screening interview because the screening interview records the applicant’s date of birth as 20 September 1999, which was the date of birth allocated to the applicant following the assessment.
48. The assessment records that two officers, separately determined that the applicant’s physical appearance/demeanour strongly suggests that he was “significantly over 18 years of age and no other evidence exists to the contrary”. The explanation for the decision was that the applicant (referred to as “Migrant”) has a “receding hairline”, “pronounced Adam’s Apple”, a “substantial amount of thicker facial hair” and the applicant stated that it had not been more than a few days since he last shaved. The officers concluded that the applicant spoke with a “deeper, post-pubescent voice” which supported the officers’ view that he was an adult, his demeanour was “more consistent with that of an adult” and his “facial structure is fully developed with a defined jawline in common with the face of an adult male.” The applicant’s response to the decision on his age is recorded as “I do not understand I am not lying about my age.” Further reasons were provided as to why the officers decided to maintain their decision to dispute the applicant’s age following the applicant’s response under the headings “Physical Presentation” and “Demeanour”.
49. During the hearing we noted concerns about the observations in this section. In particular, we were concerned about the comment that the applicant’s “nose is developed and proportionate to his face which is common in adults”, he “has strong hands” and “the curvature in his body indicates developmental changes associated with adulthood.” During his submissions Mr Harrop-Griffiths informed us that “Islington does not agree with the characteristics listed in the Home Office assessment”, but asked us to note that the officers had found that the applicant looked much older than he claimed to be.
Screening Interview
50. The respondent sought to rely on statements the applicant made within the Screening Interview in support of their case that he is in his mid-20s. In particular, the respondent highlighted that at question 3.4 the applicant was asked to outline his journey to the UK. In response to the interviewer’s prompt that his description should include “how organised or assisted with arranging the legs”, the applicant had responded “I paid the smugglers to get to Libya. I organised getting to Tunisia by myself. I paid 2000 dinar from Tunisia to get to Italy. I organised Italy to France myself and France to UK.” At question 3.10, the applicant was asked if he had any close family in the UK and the applicant replied “Yes, a brother [MH], roughly 33 years old, I think he has residency here. I saw him nearly 8 years ago. I think he lives in Leeds.”
The respondent’s assessment after the visit on 7 December 2023
51. The applicant was transferred to NASS accommodation. In his case it was the Clink, a hostel in Islington. On 6 December 2023, the applicant completed an “Age Assessment Self-Referral Form.” In the form the applicant stated, “I want to stay in a hotel with other people in same age of mine.” A photograph of the applicant was attached to the form.
52. On 7 December 2023, the applicant was visited by Mr Sayed, a specialist social worker and Ms Couchman, a project manager overseeing the practice around unaccompanied asylum-seeking children in the respondent authority. They do not purport to have conducted a Merton compliant age assessment. It is their position, confirmed by both Mr Sayed and Ms Couchman in their oral evidence, that they conducted a “Welfare Assessment.”
53. The parties agree that Mr Sayed and Ms Couchman spent approximately 1 hour with the applicant and they used an Arabic interpreter through the telephone.
54. The outcome of the assessment was communicated to the applicant in the letter headed “Brief inquiry of age”. The letter is dated 8 December 2023 and was hand delivered to the applicant by Mr Sayed on 21 December 2023. The letter states:
“Based on two professionals observation of your presentation, emotional and physical maturity and the inconsistencies and gaps in the information you have shared, you were assessed to be significantly older than 16. The assessors estimated you may be between the age of 24 and 25.
As your estimated age is significantly higher than 16, you will therefore not be put for a welfare assessment and will not be offered any support by children service.”
55. The typed notes of the visit were provided to the applicant’s representatives and were included in the trial bundle. The notes record that it was observed that the applicant had “a deep voice as an adult…’ a very mature face and beard with thick strands of hair was seen on parts of his face…’ significant and deep lines on forehead that remain even when he is not making facial movements…’ very mature hands with thick hair on his arms…’very hairy legs.” The notes describe the applicant as engaging “in conversation in a very mature way, not as a child who would seek a professionals support” and that he possessed “a high level of confidence and came across as mature in his thinking and responses.” It was also recorded that the applicant was “reluctant to share information on his parents and siblings” and detailed that he gave his father’s age as 60 years old, his mother’s age as 37-38 years old and his step mother’s age as unknown.
56. The notes record that the applicant provided the names of his step brothers (we understand this to refer to his half-brothers), but their ages were not given, although the applicant is recorded as saying that B2 was grown when he was born, B3 has two children and B4 and MH both have one child. The applicant gave B5’s age as 13-14 years old, B6’s age as 11 years old and his sister’s age as 9 years old. The notes also record that the applicant gave the details of another sister called Baqit who was 6-7 years old. However, it is the applicant’s account that he has no such sister. The notes conclude that:
“In view of [the applicant’s] presentation, physical appearance, maturity and gap in the information, it is doubted that he is the age he claims. Based on observations and the conversation with [the applicant] about his background, it was concluded that [the applicant] is significantly older than the age he claimed.”
57. Two photographs taken by Ms Couchman and Mr Sayed during their visit were also provided in the bundle.
58. The respondent also provided the case notes in respect of the applicant from 6 December 2023 to 11 December 2023. The case notes indicate that on 11 December 2023, there were emails between social work teams requesting further information. In response, the social worker making the enquiry was informed of the visit to the applicant and the decision to refuse to age assess him further.
59. As outlined above, during the course of the hearing we were also provided with Mr Sayed’s handwritten notes of his visits of 7 December 2023 and 12 December 2023, and emails between Mr Sayed and Ms Couchman confirming the typed notes of the visit. It is apparent that in the email Mr Sayed sent to Ms Couchman with his first draft of the notes of the visit he repeatedly refers to the applicant as ‘Omar’. In his oral evidence Mr Sayed explained that he believed it was “a typo” and that Omar was someone he had been dealing with that day or the day before. In Ms Couchman’s response to the original email, she does not pick up on the ‘typo’, but suggests adding that the applicant said that the Italian authorities recorded his age as 19 and she would also say “significant and deep lines on forehead that remain even when he is not making facial movements.”
MH’s age assessment and Facebook evidence
60. Ms Couchman provided a witness statement dated 9 October 2024 in support of the respondent’s application to discharge the order for interim relief. Ms Couchman outlines new evidence regarding the applicant’s probable age, which included MH’s age assessment and evidence she had identified from Facebook. Ms Couchman explains that she considers it is “overwhelming evidence that the applicant is likely to be an adult and as old as 31.”
MH’s age assessment
61. The respondent provided a copy of MH’s age assessment, which had been carried out on 28 September 2016. In that age assessment it is recorded that MH said that he had two older brothers, one of whom had died and one of who was aged 20 years old at the date of the age assessment. The applicant has also referred to this half-brother, who we are referring to as B3. It is recorded that MH said that he had a younger sister who is a lot younger than him. The name MH gives her is the same name as the applicant gives his younger sister. It is also recorded that he mentioned three half siblings: the applicant, who is recorded as being two years younger than MH; a younger sister; and a younger brother whose age he does not know. The younger brother’s name he gives is the same name the applicant gives his oldest younger brother, who we are referring to as B5.
62. Ms Couchman concludes that MH’s age assessment supports the respondent’s assessment that the applicant is 23 years old, because MH is 25 years old and he describes the applicant as two years younger.
Facebook evidence
63. Ms Couchman identifies Facebook pages belonging to the applicant’s brothers as outlined below. It is not in dispute that these Facebook pages belong to the applicant’s family members that Ms Couchman identifies them as belonging to.
64. B3 is friends with MH on Facebook and they are pictured together in a photograph from MH’s wedding. B3’s Facebook page includes a post that describes him losing his passport with a picture of his passport that gives his date of birth as 1 January 1982, which would make him 42 years old now. B3 posted a picture of MH on 24 September 2021 with a caption that refers to his ‘young brothers’ and sister. The young brothers identified by B3 are B5, B6 and two others called Omar and Bakhit. There is no reference to the applicant.
65. On MH’s Facebook page, MH has posted a picture of someone Ms Couchman describes as an “adult male” alongside text that refers to him as MH’s “beloved brother.” Ms Couchman believes this to be B4 and observes that he is “very mature, at least in his mid-twenties.”
66. B4 is friends with B3 on Facebook and posted a picture of MH on his arrival in the UK. B4’s Facebook page includes a post of a photo which Ms Couchman understands to be B3, MH, B4 and B2. Ms Couchman notes that at the time the photograph was posted (20 September 2015) MH claims to have been 16 years old, but considers that does not accord with the photo because to her he looks in his late teens or early twenties.
67. Ms Couchman has identified two Facebook accounts belonging to B5. Ms Couchman asserts that the applicant’s account that B5 is 13-14 years old is “not plausible”. She considers that “his facial features resemble someone in their twenties or at least in their late teens.” The applicant posted a photo of himself on his account, which was then re-posted by B5 on the second account Ms Couchman identified.
68. It is Ms Couchman’s evidence that it can be concluded from the Facebook evidence that B3 is “undoubtedly aged 42”. MH said that B3 was 1-2 year classes above, so it is probable that MH is in his mid-30s. MH said that the applicant was 2 years younger than him in his age assessment, so there is “overwhelming evidence that [the applicant] is likely to be an adult, as old as 31.”
Age Assessment conducted by Sarah Edwards and Sheena Davi
69. The applicant relies on an age assessment dated June 2024, undertaken by Ms Sheena Davi and Ms Sarah Edwards, who are both qualified social workers. The assessors interviewed the applicant on 11 June 2024 from 9.30am to 2.30pm and again on 12 June 2024 from 9.30am to 3.00pm. Zoe Alderman from Action for Children acted as the applicant’s appropriate adult and was present for both interviews and the same Sudanese Arabic interpreter from Language Interpreters Limited acted as the interpreter on both days. The assessors outline their assessment under the following headings:
• Clarification of information;
• Physical appearance and demeanour
• Family Composition and Social History
• Education, Training and Employment
• Journey
• Independence and Self-Care Skills
• Health
• Information from Other Sources
70. The assessors produced an evidence table outlining the evidence they considered and the weight they gave it. After analysing that evidence, the assessors summarise their conclusion as follows:
“Based on the information available, we believe that the overwhelming evidence supports [the applicant’s] claimed age. We recognise that other professional judgments have deemed him to be over eighteen years of age, however, most of this evidence is unreliable due to its content or lack of transparency concerning the processes undertaken when gathering this information, therefore we are unable to give their judgements significant weighting.
There was no significant evidence collecting during our assessment interview that indicated [the applicant] was older than his claimed age and we were able to address some of the concerns raised in the previous assessments, which [the applicant] confidently and competently elaborated on to resolve.”
71. The applicant relies on a further addendum report provided by Ms Edwards in which she reviews the further evidence provided by the respondent, namely: the statement of Joshua Jackson, the applicant’s allocated social worker dated 25 September 2024; the statement of Ms Couchman dated 9 October 2024 (outlined in detail above); MH’s age assessment (including the handwritten notes); two Child/Young Person’s Assessment in respect of MH completed in February 2015 and September 2016; the social media evidence outlined in Ms Couchman’s witness statement and the applicant’s third statement dated 11 November 2024 responding to the additional evidence provided by the respondent; MH’s second statement dated 11 November 2024 responding to the issues arising from his age assessment; and a witness statement from Kim McFarlane, a senior support worker at NelCare, the applicant’s accommodation.
72. Ms Edwards did not conduct a further interview with the applicant. She reviewed the new evidence, updated the evidence table to include the new evidence and addressed the weight she gave it. After analysing the information, Ms Edwards summarised her conclusion as follows:
“When analysing the new evidence submitted by the local authority, I find that I cannot afford it substantial weight that would dispute [the applicant’s] age and therefore alter the conclusion in my original report. In contrast, whilst not adding information previously unknown,, the additional statement provided by NelCare has highlighted an additional organisation that support [the applicant’s] claimed age.
Therefore based on the original and all the new information provided, I continue to hold the professional conclusion that [the applicant] is more likely to be his claimed age of seventeen years.”
The witness evidence
73. The following witnesses provided witness statements and gave evidence before us:
• The applicant, who gave evidence in person, through a Sudanese Arabic interpreter.
• Erinç Argun Kayim, a Children’s Advisor in the Age Dispute Project at the Refugee Council, who gave evidence in person.
• MH, who gave evidence remotely through a Sudanese Arabic interpreter.
• Kim McFarlane, a Senior Support worker at NelCare, who works at the applicant’s accommodation placement and who gave evidence remotely.
• Mr Sayed, who gave evidence in person.
• Joshua Jackson, the applicant’s allocated social worker, who gave evidence in person.
• Ms Couchman, who gave evidence in person.
• Ms Edwards, who gave evidence remotely.
74. The witnesses all adopted their witness statements and were cross-examined. Some were re-examined and answered questions from us. We do not cite the witness evidence at length. We have read all the witness statements in depth and reviewed our detailed notes of the oral evidence. There is also an audio recording. We will deal with relevant aspects of the witness evidence when setting out our assessment of the evidence in due course.
The parties’ submissions
75. The parties made submissions in written pleadings and orally at the hearing. We consider the parties’ respective submissions when setting out our assessment of the evidence, below and emphasise that we have taken all of the points made into consideration.
Assessment of evidence and findings
76. In assessing the evidence, we have had regard to the guiding principles summarised earlier in this judgment and to those set out in the skeleton arguments and closing submissions, both oral and written.
77. Any holistic assessment must have some form of structure to it. The order in which we deal with the aspects of the evidence we regard as being relevant to our task is not indicative of their individual significance, nor should it be thought that we have viewed each matter in artificial isolation. Our assessment is cumulative.
The Assessments of Age
78. As outlined above there have been three assessments of the applicant’s age (although only one purports to be a Merton compliant age assessment).
Home Office Assessing Officer’s Report
79. As outlined above, we have concerns about the observations made in this assessment and the respondent confirmed that they did not agree with the characteristics listed therein.
80. We have not been provided with any handwritten notes taken by either officer during the assessment or any photographs of the applicant on the date of the assessment. It is recorded that the applicant was “informed in Arabic that his age has been disputed.” It is not recorded what (if any) questions were asked through the interpreter and the applicant’s responses to those questions. We note that the officers considered that the applicant looked much older than he claimed to be. We have reminded ourselves of the importance of not overemphasising physical characteristics and consider the officers’ opinion of the applicant’s appearance does not assist us, particularly without an accompanying photograph of the applicant’s appearance at the time. We therefore give this assessment limited weight.
The respondent’s assessment after the visit on 7 December 2023
81. As outlined above, it is the respondent’s position that they conducted a “Welfare Assessment.”
82. It was Ms Couchman’s oral evidence that they were aware the applicant was struggling in the hostel, had adults in his room, that the system providing adult accommodation is “extremely poor” and that the Clink hostel where the applicant was being accommodated was “particularly awful accommodation.”
83. We were provided with the respondent’s “Age Assessment Guidance”. Under the heading Welfare Check it states the following:
“This welfare check should be conducted with 24-48 hours of the referral being received. The check can be completed by 1 trained social worker and without an appropriate adult present, but it should have strong managerial oversight and the managers observations should also be included. In all circumstances an interpreter is required for this meeting and their details should be recorded on the form.
This welfare check and form is the same used for all new UASC referrals to our service and covers basic personal, health and safeguarding information. This welfare form should be uploaded on file and also shared with placements if we determine they are a child or a further assessment is needed.
Following this welfare check, a discussion with a manager is required to determine the following actions:
• Determine they are clearly a child or marginal so as to apply the benefit of the doubt and therefore no further enquiry of age is required….’
• Or, determine that an enquiry as to age assessment is required and undertake places to start this process.
• Or, determine that the claimed child looks significantly older, 25 years + or 7 years or more than their claimed age and as such a refusal to assess determination will be made. A letter outlining this decision will be provided alongside supporting agencies’ details to challenge this decision if the claimed child wishes. This must be authorised by senior management.”
84. In her oral evidence Ms Couchman confirmed she and Mr Sayed considered the applicant to be 23 years or older. She explained that the above policy was not in place at the time of the visit to the applicant and that a few months earlier they had changed “25 years +” to “23 years +”. She had not had the opportunity to change the policy document, but it had been varied by oral agreement and in emails. In cross-examination, Ms Couchman was referred to para 43 of AOJ, R (On the Application Of) v London Borough of Islington [2024] EWHC 427 (Admin), which states:
“In their witness statements, Ms Kennedy and Mr Meiklem explain that the Council applies a threshold of "25 years or older" when deciding whether to conduct an age assessment, i.e. the Council will not conduct an age assessment if at a welfare check the relevant social worker and manager consider that the individual has the appearance of someone aged 25 or older. In this respect, Ms Kennedy and Mr Meiklem's witness evidence is consistent with the Islington Guidance. They say that the reference to "mid-twenties" in the letter of 27 October 2022 is a reference to this 25 years or older threshold.”
85. Ms Couchman explained that this was not an inaccurate description of the respondent’s policy, but that the policy also includes the additional proviso of “or 7 years or more than their claimed age” as outlined above. In any event, Ms Couchman maintained that the applicant would have met the policy because they considered he was 7 years older than his claimed age of 16 years old.
86. We note that a telephone interpreter was provided for the visit, but that the interpreter’s details had not been recorded as directed on the welfare assessment form. In fact, the respondent accepts that no welfare assessment form was completed in respect of the applicant. This seems particularly surprising as it was Ms Couchman’s oral evidence that she designed the policy and she and Mr Sayed devised the welfare assessment form. Ms Couchman explained that although she would like social workers to use the form, they did not always do so. In response to questions as to why they did not use the form during their visit to the applicant, she explained that it was created for social workers who are less experienced than Mr Sayed and that she has “no doubt he asked the questions.”
87. We were provided with a template copy of the form. There are three parts of the form. Part 1: “Basic Information” includes questions about: name; age; documentary evidence of age; nationality; ethnicity; language; country of residence and birth; religion; and family and education. Part 2: “Immediate Health Check” includes questions about: health; emotions; sleep; thoughts of suicide/self-harm; history of attending hospital for treatment; medication; smoking/alcohol and drug consumption; allergies and dietary requirements. Part 3: “Journey to the UK and Assessing Risks” includes questions on: motivation to come to the UK; whether they want to claim asylum; whether anything bad happened in the home country/journey to the UK; whether they were detained; what countries they travelled to on the way to the UK; whether they have any injuries; who arranged for them to come to the UK; whether they have a mobile phone; whether anyone from home or agent can contact them; how they contact their family (if they are in contact); whether they feel safe in the UK and are they worried about anyone finding them; and whether there is anything worrying them. The person being assessed is also given an opportunity to add anything and ask any questions. At the end of the form, the social worker is prompted to record their observations and comment on age, presentation, vulnerabilities, and any other burning issues, etc.
88. Having reviewed Mr Sayed’s handwritten notes, the typed notes of the visit, and the letter provided to the applicant after the visit, we are satisfied that Mr Sayed and Ms Couchman did not undertake a welfare assessment. We note that the letter provided to the applicant after the visit is headed “Brief Inquiry of Age” and states that because his estimated age is significantly higher than 16 he will “not be put for a welfare assessment.” (sic) It was Mr Sayed’s oral evidence that the letter was headed “Brief Inquiry of Age” because he used an old template. However, the letter clearly states that a welfare assessment will not be conducted.
89. There is no record of the applicant being asked the questions in the welfare assessment form and what his responses were. It is clear that some questions were asked regarding the applicant’s background and family history. However, there is no record, either in the handwritten or typed notes of the visit, that the applicant was asked any questions regarding his health. We consider the “health check” to be a key aspect of the welfare assessment and we are satisfied that it was not undertaken at all. We do not accept that it can be inferred from Mr Sayed’s experience that all the questions in the welfare assessment form were asked, or that it was unnecessary for them to be asked.
90. Under the heading ‘Brief enquiry as to age’ the respondent’s “Age Assessment Guidance” states:
“Where a welfare check was made and it was determined an assessment of age is needed a Brief enquiry of age as to age assessment will be required.
This assessment should take no longer than 4 hours to complete and be Merton compliant by way of ensuring 2 trained and qualified social workers are present alongside an Appropriate Adult and interpreter. The assessment cannot proceed if any of these parties are not present.
This Brief enquiry (as to age) form must be used and there must be a completion of a minded to process if a full age assessment is required or if the claimed child is determined to be an adult.”
91. As outlined above, it is the respondent’s position that the visit was a welfare assessment and not a brief enquiry as to age. For the reasons outlined above, we are not satisfied that the visit constituted a welfare assessment. It is also clear from the policy guidance that it did not constitute a brief enquiry as to age. We are satisfied that the assessment of the applicant undertaken by Ms Couchman and Mr Sayed is not provided for in the respondent’s policy guidance.
92. After disclosure of the emails, it became clear that the typed notes from the visit with the applicant were based on an email from Mr Sayed to Ms Couchman. The original email repeatedly refers to the applicant as ‘Omar’. It was Mr Sayed’s evidence that this was “a typo” and that “Omar was someone [he] was dealing with that day or the day before.” We note that in her response to the email Ms Couchman did not pick up on the typo. The applicant submits that the typo demonstrates that Mr Sayed had got the applicant confused with another child or young person called Omar, or that he had copied and pasted from another file. We are not persuaded that this is the case. However, we consider that it (and Ms Couchman’s failure to spot the typo) indicates a lack of care in recording their visit with the applicant. Given the importance of that visit - it formed the basis of the respondent’s determination that the applicant was an adult - the lack of care is certainly unfortunate.
93. We also consider that Mr Sayed’s handwritten notes of the visit are inadequate. Mr Sayed did not record the questions that the applicant was asked or the answers that the applicant gave. Mr Sayed explained in his oral evidence that his handwritten notes are to remind him when he goes back to the office. We consider that this is why his handwritten notes should have been more detailed.
94. Notwithstanding our conclusion that a welfare assessment was not undertaken and the visit does not appear to be in line with the respondent’s policy guidance, we note that Ms Couchman and Mr Sayed are experienced professionals with significant experience of working with unaccompanied asylum seeking children and in Mr Sayed’s case conducting age assessments, and that it was their opinion that the applicant’s physical appearance and demeanour indicated to them that he was 23 years or older.
95. In his typed note of the visit Mr Sayed records that the applicant was “reluctant to share information about his parents and siblings and his life in Darfur”, “engaged in conversation in a very mature way, not as a child who would seek a professionals support” and that he “possesses a high level of confidence and came across as mature in thinking and responses.” This is not recorded in his handwritten notes and there is no explanation in the typed notes of how the applicant came across as “reluctant to share information”, confident or mature. There is no consideration of whether or how the use of a telephone interpreter could have impacted on how the applicant came across. Accordingly, we give these observations of the applicant’s demeanour limited weight.
96. We have reminded ourselves of the importance of not overemphasising physical characteristics, but in any event having reviewed the two photographs that Ms Couchman and Mr Sayed took during their visit to the applicant we are satisfied they do not support their conclusions. We do not agree that the applicant “has a very mature face.” Mr Sayed records in his typed notes that a “beard with thick strands of hair was seen of parts of the applicant’s face.” We note that this is not recorded in Mr Sayed’s handwritten notes and that it is simply incorrect. It is clear from the photographs that the applicant did not have a beard or indeed any visible facial hair at all. We also note that the photograph of the applicant attached to the “Age Assessment Self-Referral Form” does not show the applicant as having any visible facial hair. We are not persuaded that thick hair on a persons arms and legs is a useful indicator of age. We accept that the applicant has lines on his forehead. However, we do not consider that they are either “significant” or “particularly deep.” Accordingly, we do not find that we are assisted by Mr Sayed’s and Ms Couchman’s observations of the applicant’s physical appearance.
Age Assessment conducted by Sarah Edwards and Sheena Davi
97. There is no dispute as to the qualifications of Ms Edwards and Ms Davi. Their CVs are annexed to the report and having considered them we are satisfied that they have the requisite qualifications and experience to undertake an age assessment. We are also satisfied that an appropriate adult and interpreter were provided for the interviews.
98. In their skeleton argument, the respondent submits that the assessor’s conclusion cannot be relied on and should be given no weight at all because the assessors:
a. give no weight at all to the applicant’s physical appearance and “wholly discounted” the totality of the observations made by the respondent and Home Office about the applicant’s appearance;
b. refuse to take account of any photograph of the applicant showing him to be an adult because they are ‘heavily filtered’;
c. seek to explain his confident demeanour by stating he was confident about the answers he gave whereas he expressed himself as an adult;
d. fail to pick up on the discrepancies in the applicant’s account;
e. fail to ask questions designed to test his credibility;
f. find the applicant’s narrative of his life before he left Sudan and his journey to the UK is consistent with the account he gave other professionals without identifying who the other professionals are and in fact the applicant gave a different account during his screening interview;
g. refer to a ‘time-lapse’ in the applicant’s education history that was unaccounted for and he seemed unable to explain, but his school closing during COVID ‘dramatically reduced the unaccounted gap in the timeline without providing the context for these comments;
h. refer to three lots of feedback which is taken to mean Joshua Jackson, Erinç Argun Kayim and Katherine Crew, but does not take into account Mr Jackson’s statement dated 25 September 2024 and the respondent submits that Erinç Argun Kayim is “an advocate for those involved in age disputes rather than a truly objective observer.”
99. The respondent focussed their oral submissions on the assertion that the age assessment is not Merton compliant because Ms Edwards did not assess the applicant’s credibility, and did not probe the applicant or challenge him and instead conducted what the respondent describes as a “cosy chat.”
100. We address the respondent’s criticisms in turn. We do not accept that the assessors have given no weight at all to the applicant’s physical appearance, wholly discounted the observations made by the Home Office and the respondent, or did not take into account the photographs of the applicant showing the applicant to be an adult. On the contrary, we are satisfied the assessors considered and addressed these matters in detail.
101. The assessors consider the applicant’s physical appearance under the heading ‘Physical Appearance and Demeanour.’ Having reminded themselves that “physical appearance is not a reliable method of assessing age” they gave their observations “limited weighting”, they noted the comments made about the applicant’s physical appearance made by both the respondent and the Home Office. The assessors considered photographs of the applicant from his social media pages, concluding that they “bore little resemblance to him in person” and “appear to be heavily filtered”. The assessors decided to give the applicant’s physical appearance no weight because their observations supported his claimed age, but the photographs appeared to show that of an older male and therefore “show how unreliable [the applicant’s] physical presentation is when assessing his age. It is clear from the evidence table that the assessors did not “wholly discount” the observations of the respondent and the Home Office. Whilst the assessors make criticisms of both assessments, they give them “limited” weight, not no weight at all.
102. We accept that the assessors did not identify the three discrepancies identified by the respondent.
103. We note that to be Merton compliant assessors are required to make an assessment of credibility and to ask questions designed to test credibility. However, we are not satisfied that those questions must be asked in a challenging manner as the respondent appeared to imply. We note the ADCS, Age Assessment Guidance (with which the assessors record that in preparation for the interview they re-familiarised themselves) states the following under the heading ‘Questioning the child or young person’:
“Building trust and developing rapport at the beginning of the interview process is vital, and it will support the child or young person to speak freely and provide a more detailed narrative to inform the assessment. Simple, open-ended questions should generally be used, and you should ensure that questions are not confusing, repetitive or oppressive. You must take a child-friendly and sensitive approach to questioning, including checking that questions have been understood and offering breaks. The child or young person should be asked their age and date of birth, and given the opportunity to explain how they know their age and date of birth. The purpose of the questions is to develop a picture of the child or young person’s life and experiences, not to catch the child or young person in a “lie”.”
104. We are satisfied that the assessors did ask the applicant questions designed to test his credibility. For example, the assessors recorded that they asked the applicant how he knew his age and when he told them his mother had told him they “further queried whether this was a ‘one-off’ conversation with his mother or a subject that was discussed frequently in his family.” The assessors also record that there are photographs where the applicant does look older than his claimed age “which we pointed out to him.”
105. We accept that the assessors have not provided the context for their reference to a ‘time lapse’ in the applicant’s education history that was unaccounted for, but his school closing during COVID ‘dramatically reduced the unaccounted gap in the timeline.” However, the assessors have provided a “Timeline of other life events” in Appendix 4. It is apparent from reviewing the timeline that the ‘time lapse’ is because the applicant’s account is that he started Year 6 in September 2018 and Year 7 in September 2020.
106. We also accept that the assessors do not identify the other professionals that they are referring to when they conclude that “the narrative the applicant provided was consistent with that given to all other professionals.” However, when reading the report as a whole we understand that the assessors are referring to the fact that the applicant has consistently reported that his date of birth is 20 September 2007 as they record in the report at paragraph 5.1.2.
107. The assessors sought Mr Jackson’s views themselves. Mr Jackson’s witness statement, dated 25 September 2024, would not have been available to the assessors in June 2024. In any event, Ms Edwards considers his witness statement in her addendum report. The evidence table notes that Erinç Argun Kayim’s “role exposes her to a range of individuals in the same position as [the applicant], who are disputing their claimed age”, so the assessors were clearly aware of her role.
108. As outlined above, the respondent claimed that Ms Edwards had approached her addendum report with bias and it was put to her that it “is a desperate attempt to maintain her assessment.” This is a very serious allegation to make about an independent social worker. Ms Edwards responded that it would not be in her best interests to do that. We are satisfied that Ms Edwards did not approach her addendum report with bias. Ms Edwards considered the new evidence and recognised that some of the evidence did “present evidence to dispute [the applicant’s] claimed age,” but she considered that overall “the evidence continues to suggest that [the applicant] is more likely to be under 18 years of age, and therefore he claimed age of 17 years should be accepted.”
109. The respondent also put to Ms Edwards that she had misstated the law by referring to a “benefit of the doubt” principle. In response, Ms Edwards clarified that it was her opinion that Mr Jackson (whose evidence she is discussing) should have afforded the applicant the benefit of the doubt. We are satisfied that Ms Edwards was not claiming that the applicant should be afforded the benefit of the doubt on the basis of a legal principle.
110. We accept that there are some limitations to the assessor’s age assessment and Ms Edwards addendum report. However, we are satisfied that the age assessment itself is Merton compliant and that Ms Edwards considered all the new evidence in the addendum report, giving clear reasons why she maintained her view as to the applicant’s age. We therefore give it significant weight.
The applicant’s account and family history
The applicant’s account
111. The applicant has been consistent that his date of birth is 20 September 2007. It is recorded as his claimed date of birth in the Home Office assessment of his age undertaken on 4 December 2023, where it is also recorded that his mother told him his age and date of birth. It is also recorded as his claimed date of birth in the age assessment self-referral form. In their notes of the visit, Mr Sayed and Ms Couchman do not record the applicant’s claimed date of birth, but do record that he “is very precise about his age” and “said his mother told him his year of birth of 2007.” In oral evidence, the applicant explained that his mother had first told his year of birth and age when he started school, but after that she had told him his specific date of birth. When he was asked why she had told him that he explained, “When we sat together, talking with each other, she would mention that ‘you were born this month’.” The applicant also explained that when they started school the teachers would call out the pupils’ names and dates of birth. We consider that both these descriptions are plausible ways in which a child would learn their date of birth.
112. We note that the applicant has given his father’s age as 60 years old and his mother’s age as 37 or 38 years old when he was visited by Mr Sayed and Ms Couchman, but that he explained to Ms Edwards that these were estimates and not based on specific knowledge. In any event, we do not consider that the applicant’s father being in his 50s or 60s excludes the applicant from being the age he claims.
113. We have considered the applicant’s evidence that he said he organised his travel himself in both his screening interview and to Mr Sayed and Ms Couchman, but that in his witness statement he says that his parents helped arrange for him to be taken to Libya and after that he travelled with other youths who contacted his parents to arrange for payment from his journey from Tunisia to Lampedusa. We accept that this is discrepant. However, we remind ourselves that a person may lie about certain matters, but be truthful about others and we do not consider it indicates that the applicant is not his claimed age.
114. We note that Mr Sayed and Ms Couchman recorded an additional sister in their notes of their meeting with the applicant. However, as recorded above we have concerns about the notes of that visit. In any event, we do not consider it material to our assessment of the applicant’s age.
115. We note that the applicant does not claim to know the ages of his siblings, but has provided estimates of the ages of his full siblings. In respect of his older half-brothers, it is the applicant’s case that he does not know the ages of B2, B3 and B4 and he has given different ages for MH. In his screening interview the applicant says that MH is roughly 33 years old, but now says that he is 25 years old. Mr Sayed and Ms Couchman record in their notes of their visit that the ages of the applicant’s half-brothers are not given. The notes do not address why they are not given.
116. The applicant never lived with his half-brothers and considered them all to be older than him. We are satisfied that there is no reason why the applicant would know their exact ages. We will address Ms Couchman’s evidence regarding the Facebook evidence later in our decision.
MH’s evidence and age assessment
117. We have considered MH’s written and oral evidence in detail as well as his age assessment, the handwritten notes of the age assessment and the points raised by Ms Couchman regarding MH’s age assessment.
118. We do not place any weight on MH’s written and oral evidence as to the applicant’s age. We are prepared to accept that MH is aware that the applicant is significantly younger than him. However, we do not accept his claim to know the applicant’s age. We did not consider MH to be a reliable witness and we note that Mr Persey did not ask us to place any weight on his evidence in his oral submissions.
119. Having reviewed MH’s age assessment and accompanying handwritten notes we note that MH is described in the handwritten notes as being “upset”, “tearful” and “shaking” at times.
120. The handwritten notes of the age assessment record that MH said the following in respect of the applicant: “I don’t appropriately 2 years younger…”. The following word could be “then” or “than”. The age assessment itself records that MH has described the applicant as two years younger than MH which would make the applicant 23 years old. Ms Edwards’ opinion is that MH is recorded as saying “I don’t appropriately 2 years younger than” and it is not clear who MH is referring to the applicant being younger than. We consider that it is unclear what MH is saying, particularly as the sentence is prefaced with “I don’t…” We are not persuaded that MH is describing the applicant as being two years younger than himself.
Facebook evidence
121. We have reviewed the Facebook evidence, exhibited with Ms Couchman’s witness statement and her evidence as to what she considers that it demonstrates.
122. We do not find that the Facebook evidence assists us in determining the applicant’s age.
123. We do not accept that it demonstrates that B3 is “undoubtedly aged 42”, but we accept that it is cogent evidence that he is aged 42.
124. The applicant has never said that he knows B3’s age. The respondent’s notes of their visit with the applicant record that the applicant did not give B3’s age, but told them that B3 had two children. Ms Edwards records that the applicant described all his half-brothers as being married and have children and in his first witness statement he explains that he does not know the exact ages of his half-brothers, but that they are all older than him and are married. In his third witness statement, responding to the Facebook evidence, the applicant emphasises that he has always maintained he does not know the ages of his half-brothers. Accordingly, B3 being 42 years old is not inconsistent with the evidence the applicant has provided. We consider that it is plausible that the applicant could be his claimed age and have an older half-brother who is 42 years old.
125. We note that it is MH’s evidence that B3 is older than him, but that he does not know how much older, although we note MH described him as 20 years old in his age assessment.
126. We are not persuaded that we should infer that MH is in his mid-30s because he described B3 as being one to two classes above him in his age assessment. We note Ms Couchman’s observations in respect of a photograph of MH on B4’s Facebook page posted on 20 September 2015, when MH claimed to be 16 years old and that she considers that he looks in his late teens or earlier twenties. We are not persuaded that we can draw any conclusion as to MH’s age from the photograph. We consider that it could be of a 16 year old or someone in the early twenties. It is not possible to tell.
127. MH was found to be his claimed age with a date of birth of 5 October 1998 after an age assessment. There has been no challenge to that age assessment and the respondent did not seek to persuade us that it was unlawful or not Merton compliant. On the contrary, the respondent seeks to rely on statements MH made during the course of that age assessment. Having reviewed the age assessment we are satisfied that it is Merton compliant and we are not persuaded to go behind the findings that MH is his claimed age.
128. We are not assisted by Ms Couchman’s evidence that she considered the photographs of B4, on MH’s page to show someone “at least in his mid-twenties” or her evidence that she considers the photographs of B5 on his own Facebook page to resemble someone “in their twenties or at least in their late teens.” First, we do not agree with her observations that the photographs show people in their “mid-twenties” or in B5’s case “at least in their late teens.” Second, we note that a person’s physical appearance should be treated with caution when assessing their age and we consider that it is even more the case when one is assessing their physical appearance through photographs posted on social media.
Witness evidence of professionals
129. We have addressed the witness evidence of Ms Couchman and Mr Sayed in the context of their assessment of the applicant’s age, MH’s age assessment and social media. We do not consider that there is any need to address it further.
130. We note that Erinç Argun Kayim genuinely believes the applicant to be his stated age. She explained that most of her contact with the applicant has been over the telephone and she has only met the applicant on two occasions prior to the hearing. We do not consider that her evidence assists us in determining the applicant's age.
131. Mr Jackson’s evidence as to the applicant’s age appeared to change over time. In a telephone call with Ms Edwards on 10 June 2024, Mr Jackson told her that he thought the applicant was over 16 years old, but not necessarily over 18 years of age. In his witness statement dated 25 September 2024, Mr Jackson explained that he did not feel able to adequately comment or give his professional opinion on the applicant’s age because he had only attended one age assessment training. He did explain that he found it hard to believe that the applicant was his claimed age and believed him to be older, but could not say how old due to his lack of experience. Mr Jackson also commented that he had seen the applicant with a clear facial stubble, it was obvious the applicant shaves and that he had been shaving for a while. Mr Jackson did not explain how he was able to assess that the applicant had been shaving for a while.
132. In his oral evidence, Mr Jackson confirmed that he had seen the applicant approximately 8-10 times for approximately 40 minutes to 1 hour on each occasion. Mr Jackson also explained that since he wrote his witness statement he had received more training on age assessments so felt more confident to assess the applicant’s age. Mr Jackson did not give his opinion as to what he considered the applicant’s actual age to be, but he confirmed that it was his opinion that the applicant was an adult and it was possible he could be 36 years old. Mr Jackson considered that it was possible that the applicant could be 36 years old because “you never really know the true age of an unaccompanied asylum seeking child” and “you just have to keep an open mind to the possibility that they’re much older than they say they are.” We do not consider that we are assisted by Mr Jackson’s evidence. Until his oral evidence, he had been very clear that he did not feel confident assigning an age to the applicant and, candidly, he at least implicitly doubted whether the applicant was the age claimed by the respondent. With respect, we do not regard Mr Jackson’s oral evidence as adding anything of substance to what he had previously said, and his evidence as a whole does not carry material weight
133. Ms McFarlane has over three years’ experience of working with young asylum seekers. She notes that when the applicant arrived in their placement her team interacted with the applicant “without considering he might be over 18.“ She also describes the applicant as receiving a high level of support and presenting “with many characteristics typical of a 17 years old, including friendships with others of a similar age and shared interests.”
134. In her oral evidence Ms McFarlane explained that there are eight young people in the placement and that she works shifts at the placement, which encompasses day and night. In her witness statement she explains that when she refers to the applicant’s friendships with those of a similar age, she is referring to his friends from college who visit him at the placement. She said she knows that they are 17 years old because they are required to provide ID when they first visit. Ms McFarlane stated that the only person who was older than 17 who had visited the applicant was MH. When it was put to Ms McFarlane that the respondent thought the applicant was an adult and possibly in his 20s, she responded “I just can’t see it. Honestly, I can’t see it. I don’t see the difference between him and other 17 years olds personally.” Ms McFarlane explained that there were safeguarding procedures in place regarding the appropriateness of young people being in the placement and that looking at the age range within the placement is more important than ever because they have started accepting females into the placement and they could not have a 16 year old girl in the placement with someone over the age of 18 years old. It was clear from her evidence that Ms McFarlane and her team did not consider there were any safeguarding concerns about the applicant being in the placement. We found her evidence to be reliable and deserving of real weight. She was entirely straightforward in her evidence, clearly committed to her role and responsibilities (including all relevant safeguarding procedures), and has been in a position to give evidence of relatively prolonged interaction with the applicant in the placement context.
135. We note that Katherine Crew, who works at the Union Chapel, also provided a witness statement. The Union Chapel has been contracted by Islington Council to provide well-being support for asylum seekers in local hotel accommodation. Ms Crew explained that she is not qualified to determine someone’s age, but that the applicant’s appearance and demeanour gave his claim sufficient credibility for her to refer him to the Refugee Council. We note that the applicant and respondent agree that no weight should be placed on Ms Crew’s witness evidence. We have considered Ms Crew’s witness statement, but we agree with Ms Edwards conclusion that her evidence is “neutral” and we consider that it does not assist us in determining the applicant’s age.
Physical Appearance and Demeanour
136. Physical appearance and demeanour are relevant considerations, but ones which should be treated with caution. This is particularly so in light of potential cultural differences and the wide-ranging subjective views (often at a subconscious level) which might inform conclusions on a person’s age.
137. We have considered all the evidence regarding the applicant’s physical appearance and demeanour and indeed our own observations of the applicant’s physical appearance in photographs and in court.
138. In terms of our assessment, the applicant’s physical appearance is of little value to our overall task, but we do not consider that the applicant’s physical appearance provides material support for the respondent’s conclusion that he is 8 years older than his claimed age.
139. Overall, we do not regard the applicant’s demeanour as representing a significant factor either for or against his claimed age and date of birth. On our assessment of the evidence, it seems to be the case that his attitude/demeanour/presentation differed according to the context in which it was perceived.
Conclusions
140. In light of the cumulative assessment we have undertaken and the findings set out above, we conclude that it is more likely than not that the applicant was 16 years old when he arrived in United Kingdom on 4 December 2023 and that he is now 17 years old.
141. We attribute the date of birth of 20 September 2007.
142. Without repeating what has gone before and emphasising the intensely fact-sensitive nature of this particular case, the essential reasons for our conclusion are as follows.
143. First, we have found that the applicant has been consistent as to his age and his date of birth at all times, stating that he was 16 on arrival in this country and maintaining that age to date.
144. Secondly, we accept the applicant’s explanation as to how he knew his age and date of birth; i.e. his mother and teachers told him.
145. Thirdly, we acknowledge that the applicant has not been entirely consistent in all aspects of his own evidence and has sought to rely on the unreliable evidence of MH. However, we consider that it is more likely than not that inconsistencies and discrepancies in the applicant’s evidence arose from issues with interpreters and pressure to provide definitive answers to questions the applicant did not know the answers to, such as his parents age. In any event, we remind ourselves that a person may lie about certain matters, but be truthful about others: the assessment of credibility is not necessarily an “all or nothing” exercise. In addition, there is almost always going to be doubt, but that is why the balance of probabilities plays an important part in age assessment cases. We have previously explained why MH’s unreliable evidence does not materially undermine the applicant’s case as a whole.
146. Fifthly, we have identified a number of material shortcomings in the respondent’s assessment of the applicant’s age and the new evidence relied on by the respondent in support of their claim that the applicant is an adult. We also note the respondent initially assessed the applicant to be 24 years old, but in light of MH’s age assessment and Facebook evidence considers that he could be as old as 31 years old.
147. Sixthly, the applicant relies on a Merton compliant age assessment which we have afforded significant weight, which supports his claimed age.
148. It follows from the above that the applicant was a child when he arrived in the United Kingdom and at the date of this decision.
Disposal
149. The parties are invited to draw up an Order which reflects the terms of this judgment. The Order should address any ancillary matters, including any application for permission to appeal and costs.
~~~~0~~~~
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
ARO
[By his Litigation Friend, Afnan Khalid]
Applicant
and
London Borough of Islington
Respondent
FINAL ORDER
BEFORE Upper Tribunal Judge Norton-Taylor and Upper Tribunal Judge Loughran
HAVING considered all documents lodged and having heard Mr O Persey of counsel, instructed by Osbornes Law, for the Applicant and Mr H Harrop-Griffiths of counsel, instructed by the Legal Services Department of the Respondent at a hearing on 28-31 January 2025
IT IS DECLARED THAT:
(1) The Applicant’s date of birth is 20 September 2007
IT IS ORDERED THAT:
(1) The application for judicial review is allowed for the reasons in the attached judgment.
(2) The Respondent shall hereafter treat the Applicant in accordance with his claimed age and provide him with support and services on that basis in accordance with the Children Act 1989.
(3) The Respondent’s decision dated 8 December 2023 that the Applicant was assessed to be significantly over 16 years old is quashed.
(4) The Applicant and his brother, MH, are granted anonymity in the following terms:
"Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant and his half-brother who was a witness in these proceedings are granted anonymity.
The applicant will be referred to in these proceedings as ARO.
The applicant’s half-brother will be referred to in these proceedings as MH.
No-one shall publish or reveal any information, including the name or address of the applicant, MH and their family members, likely to lead members of the public to identify the applicant and/or MH. Failure to comply with this direction could amount to a contempt of court.”
(5) The order for interim relief made on 24 April 2024 is discharged.
Costs
(6) The Respondent shall pay the Applicant’s costs of the claim for judicial review, on a standard basis, to be assessed if not agreed.
(7) The Respondent shall pay 60% of the Applicant’s costs, on account, within 21 days of receiving the Applicant’s bill of costs.
(8) There shall be a detailed assessment of the Applicant’s publicly funded costs.
Reasons
(9) We are not persuaded by the Applicant’s submissions to make an order on an indemnity basis. Having considered all the circumstances, the relevant case law and the parties’ submissions we find that the Respondent’s conduct was not unreasonable to a high degree. The particular circumstances of the case do not take it outside the norm and do not justify an order for indemnity costs.
Permission to appeal
(10) The Respondent having made no application for permission to appeal, permission to appeal is refused.
Signed: G. Loughran
Upper Tribunal Judge Loughran
Dated: 15 May 2025
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): 16/05/2025
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-2024-LON-001201
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
15 May 2025
Before:
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
UPPER TRIBUNAL JUDGE LOUGHRAN
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
ARO
[By his litigation friend Afnan Khalid]
Applicant
- and -
LONDON BOROUGH OF ISLINGTON
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr O Persey (Counsel)
(instructed by Osbornes Law), for the applicant
Mr H Harrop-Griffiths (Counsel)
(instructed by London Borough of Islington legal services department) for the respondent
Hearing dates: 28-31 January 2025
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant and his half-brother who was a witness in these proceedings are granted anonymity.
The applicant will be referred to in these proceedings as ARO.
The applicant’s half-brother will be referred to in these proceedings as MH.
No-one shall publish or reveal any information, including the name or address of the applicant, MH and their family members, likely to lead members of the public to identify the applicant and/or MH. Failure to comply with this direction could amount to a contempt of court.
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Loughran:
Introduction
1. This judgment follows from a fact-finding hearing conducted over four days for the purpose of determining the applicant’s age and date of birth. The applicant asserts that he was born on 20 September 2007. Following a visit with the applicant on 7 December 2023, the respondent found him to be in his mid-20s.
2. It is common ground that the applicant is a Sudanese national, who arrived in the United Kingdom on 4 December 2023 and claimed asylum. It is the applicant’s case that he was 16 years old on his arrival. However, the Home Office decided to treat the applicant as an adult, notwithstanding his claim to be a child, because two officers separately determined that the applicant’s physical appearance/demeanour very strongly suggested that he was “significantly over 18 years of age and no other credible evidence exists to the contrary.” The Home Office concluded that the more probable date of birth was 20 September 1999.
3. The applicant was transferred to NASS accommodation and on 7 December 2023 he was visited by Gaby Couchman and Atiqullah Sayed of the London Borough of Islington for what they say was a “Welfare Assessment.” As outlined above, they concluded that he was in his mid-20s and therefore he would not be accepted for any further assessment of support under Children’s Services.
4. On 8 March 2024, the applicant brought this claim for judicial review challenging the respondent’s decision. Permission to apply for judicial review was granted by Neil Cameron KC, sitting as a Deputy High Court Judge, on 24 April 2024. The applicant’s application for interim relief was also granted and the respondent was ordered to treat the applicant as a child and provide him with accommodation and support under sections 17 and 20 of the Children Act 1989 until the claim was determined or until further order.
5. In line with usual practice, the case was transferred to the Upper Tribunal and was actively case managed. By an application notice dated 16 October 2024, the respondent sought to set aside the order granting interim relief. In an order sealed on 13 November 2024, Upper Tribunal Judge Smith refused the application.
Anonymity
6. On 24 April 2024, Neil Cameron KC sitting as a Deputy High Court Judge made an anonymity order in the following terms:
“Pursuant to CPR r.39.2, the identity of the Claimant shall not be directly or indirectly disclosed and these proceedings shall be known as ‘R(ARO) (by their litigation friend, Erinç Argun Kayim) v London Borough of Islington.”
7. The applicant claims to be a child and has made a protection claim. We are therefore satisfied that the applicant should continue to be granted anonymity. We have also considered whether the applicant’s half-brother who gave evidence before us should also be granted anonymity as we note that he has been granted leave to remain on the basis of being a refugee. Neither party objected to him being granted anonymity. We therefore make a direction for anonymity in the terms outlined in the anonymity direction above.
8. To comply with this direction we will refer to the applicant’s family members by their relationship to the applicant rather than by their name. The applicant claims to have four older half-brothers including MH. We shall refer to the other half-brothers as B2, B3 and B4. The applicant claims to have two younger full brothers who we will refer to as B5 and B6.
Preliminary Issues
9. On 17 January 2025, the applicant made an application to rely on an addendum report by an independent social worker, Sarah Edwards and a letter from Capital City College. On 23 January 2025, the respondent made an application to cross-examine Ms Edwards. In an order dated 24 January 2025, the applicant’s application was granted and it was recorded that the respondent’s application would be determined as a preliminary matter at the fact-finding hearing.
10. Mr Harrop-Griffiths explained at the hearing that the respondent now wished to cross-examine Ms Edwards because the addendum report “is so awful, it needs cross-examination to see what she’s going on about.” He submitted that the “two most egregious” issues in her report were that (1) she had a misdirected herself in law and (2) made a mistake of fact. Mr Harrop-Griffiths confirmed that it was the respondent’s position that those points combined with the criticisms made in the original report in the respondent’s skeleton argument demonstrated that Ms Edwards was biased towards the applicant. Mr Harrop-Griffiths confirmed that he only wanted to cross-examine Ms Edwards in respect of the addendum report and not her original report.
11. Having been informed that Ms Edwards would be able to give evidence remotely on Thursday 30 January 2025, we granted the respondent’s application.
Conduct of the Litigation
12. At this juncture we wish to highlight various issues with the respondent’s conduct of this litigation.
Late application to cross examine Ms Edwards
13. As outlined above, the respondent made an application to cross-examine Ms Edwards on 23 January 2025, only four days before the fact-finding hearing was listed to start. We accept that the respondent was only provided with the addendum report on 17 January 2025. However, it is the respondent’s position that the request for cross-examination of Ms Edwards is made pursuant to the order made by Upper Tribunal Smith on 13 November 2024 and in particular her comments at [24]:
“I do not accept Mr Persey’s submission that the Applicant’s case is now stronger than it was when the Deputy Judge made the order for support. He relies on the independent social worker report but that of course may need to be revisited by that social worker in light of the new evidence. It may be that the Respondent will now wish to cross-examine that social worker in light of the new evidence.”
14. The respondent was provided with Ms Edward’s original age assessment report on 25 July 2024 and was made aware that the applicant intended to instruct Ms Edwards to provide an addendum report at the hearing on 13 November 2024 to address the new evidence the respondent relied on. As the request to cross-examine was made pursuant to Upper Tribunal Judge Smith’s decision, we consider that the application should have been made soon after that decision and certainly before 23 January 2025.
15. It is very convenient that Ms Edwards was available for cross-examination and could be incorporated into time allocated for the hearing, given how late the application was.
Disclosure of Social Care records
16. The applicant applied for permission to admit and rely on the applicant’s social care records on 27 January 2025. The applicant’s representatives requested those through correspondence to the respondent on 7 December 2024. We are of the view that the request should not have been necessary and the social care records should have been proactively disclosed within these proceedings.
Cross-examination on evidence that had not been disclosed
17. During cross-examination, Mr Harrop-Griffiths asked MH questions about evidence obtained from Facebook that had not been disclosed to the applicant, his legal representatives or the panel prior to the questions being asked. This naturally caused some confusion.
18. In response to our questions, Mr Harrop-Griffiths explained that he had only received the new evidence on Monday 27 January at 9.59pm and that it had been emailed to him by Ms Couchman. When we asked if he was aware that the new evidence had not been filed and served he said that he was not planning to put it into evidence and did not think the evidence was controversial. We asked Mr Harrop-Griffiths if he thought he could put matters to a witness in respect of evidence that had not been served or filed and he accepted that when it was “put like that” he understood that he should have put it in evidence. Mr Harrop-Griffiths did not seek admission of the new evidence and confirmed that he would not ask any further questions in respect of that evidence.
Piecemeal and Delayed Disclosure
19. As outlined above, this matter was actively case managed by the Upper Tribunal after its transfer. There were two case management hearings and an interim relief hearing, in addition to written directions. Notwithstanding that case management, the respondent only disclosed key documents they wished to rely on during the course of hearing.
20. After the lunch break on the second day Mr Harrop-Griffiths informed us that Mr Sayed (who was scheduled to give evidence) was not present because over the lunch break Mr Sayed had showed him handwritten notes of his and Ms Couchman’s visit with the applicant on 7 December 2023 and he had gone to get copies of those notes. Mr Persey informed us that on 5 February 2024 the applicant’s representatives had expressly asked for disclosure of any notes completed by the social workers in relation to the visit and on 12 February 2024 they had requested confirmation of any typed or handwritten notes taken during the visit.
21. Mr Harrop-Griffiths informed us that the handwritten notes had not been disclosed when the applicant requested them because Ms Couchman was away between January and February 2024 and Mr Sayed had not been informed that they were required.
22. On the morning of the third day the respondent disclosed three emails between Ms Couchman and Mr Sayed. The first email is from Mr Sayed to Ms Couchman asking if she agreed with the brief notes of their visit to see the applicant. It is dated 8 December 2023. The second email is Ms Couchman’s response and is also dated 8 December 2023. The third email is from Mr Sayed, dated 22 December 2023, explaining that he visited the applicant the day before and had given him a letter, which was attached to the email. That email was dated 22 December 2023. We were also provided with a copy of the letter that Mr Sayed gave to the applicant, which is headed ‘Brief inquiry of age’ and is dated 8 December 2023, although that letter had already been included in the bundle.
23. Mr Persey indicated that he was content for the emails to be admitted, but applied to cross-examine Mr Sayed on their contents. We were able to grant the application because Mr Sayed was present in court and we were able to accommodate further cross-examination within the time allocated for the hearing.
24. It was Ms Couchman’s oral evidence that her and Mr Sayed’s visit had been a welfare assessment and explained that they have a generic form that is used for welfare. We asked to be provided with a copy of the generic welfare assessment form, which was subsequently provided.
25. We were able to proceed with the hearing despite the repeated delayed disclosure of key information. However, this could have caused serious delays and is clearly unsatisfactory.
Possible contempt of court/data breach
26. We observed that the printout of one of the emails appeared to be from ‘Ryman Fleet Street’. This concerned us, given that an anonymity order was in place and the email included the applicant’s personal data.
27. We raised our concerns at the end of the evidence on day three. Mr Harrop-Griffiths informed us that the email said ‘Ryman Fleet Street’ because it was the nearest place to court that Mr Sayed could have the emails printed to provide hard copies to us and the applicant. The emails were forwarded to Rymans who printed the emails out. After the emails were printed Mr Sayed ensured that they were “twice deleted”. Mr Harrop-Griffiths addressed us on the terms on the anonymity order in place. He submitted that there was no breach because the applicant’s identity had not been disclosed in connection with these proceedings. We informed the parties that we would give them time to consider the issue and take instructions and would address the issue on day four.
28. At the outset of day four, we informed the parties that we were not going to find that there was a breach of the anonymity order, but would make a new anonymity order so that it was clear in respect of what it covered. Neither party objected to MH being included in the anonymity order and we informed the party of the terms of the order as outlined above.
29. We informed the parties that we had decided to take no further action in respect of the potential data breach. We stated that the respondent would need to consider whether there had been a breach and noted that a manager from the team was in court, indicating to us that they were taking the matter seriously. We also stated that it was a matter for the applicant to consider his position in respect of a possible data breach.
Lack of Legal Oversight
30. It appears that a lack of legal oversight may have caused, or at least contributed to, issues with the respondent’s conduct of this litigation.
31. Ms Couchman is the instructing lay client and the respondent’s legal department is the instructing professional client. We note that Ms Couchman was in court throughout the proceedings. As far as we aware no one was present from the legal department at any stage during the hearing.
32. As highlighted above, Mr Harrop-Griffiths informed us that he had received Facebook disclosure from Ms Couchman by email on Monday 27 January. In response to our questions, he explained that Ms Couchman had emailed him directly and not through his professional clients, the respondent’s legal department. He explained that he did not believe that his professional clients were informed, nor had they been copied in.
33. In cross-examination, Ms Couchman confirmed that it was the legal department’s responsibility that the respondent’s duty of candour is complied with and to ensure that all the necessary information is disclosed. She explained the process as that the legal department contacts the relevant people/team and tell them what information they are required to disclose.
34. We note that usually in public law proceedings where there is a professional and a lay client, the professional client acts as a conduit between counsel and the lay client. This did not seem to happen in this case. We do not directly criticise the roles adopted by the respondent and note that this may well be on account of a lack of resources and an overworked legal department. However, it does appear to us that if the professional client had been more actively involved the issues outlined above may have been avoided.
35. We make these observations in the hope that they will assist the respondent in its conduct of litigation in the future.
The applicant’s case in summary
36. The applicant claims he was born in a village called Karnoi in the Darfur region of Sudan, but he does not have any memories of living in Karnoi, because he and his family moved to a neighbourhood called El Wihda in Al Fashir when he was still young. The applicant lived with his mother, father, two younger brothers (B5 and B6) and sister. The applicant thinks B5, the oldest of his two younger brothers, is approximately 13-14 years old and B6, the younger of his two younger brothers is approximately 10-11 years old. He thinks his sister is approximately 7-8 years old.
37. The applicant’s mother was his father’s second wife. The applicant’s father had four sons from his first marriage who visited the applicant’s family regularly. The applicant does not know their ages, but knew that they were older than him and describes them as all being married now. As outlined above, we will refer to these brothers as MH, B2, B3 and B4.
38. The applicant claims that he fled Sudan in or around August 2023 due to the ongoing war in that country. He was scared he would be kidnapped by the Rapid Support Forces because three of his friends from the neighbourhood had been. He states that his parents arranged for him to travel to Libya. From Libya he travelled to Tunisia. From Tunisia he travelled to Lampedusa by boat where he was stopped by the Italian authorities, who recorded that the applicant was aged 19. From Italy the applicant travelled to France before travelling on to the UK by hiding in a vehicle. As outlined above, the applicant arrived in the UK on 4 December 2023.
39. The applicant asserts that he knows his date of birth and age because he was told several times by his mother. He remembers being told when he was approximately 5-6 years old before starting school and that teachers also recited their age and date of birth in class.
The legal framework
40. The skeleton arguments provided by Mr Persey and Mr Harrop-Griffiths contain helpful references to the relevant authorities on age assessments undertaken by local authorities and the approach to be followed by fact-finding tribunals. There is little, if any, real dispute between the parties as to the relevant legal framework. Accordingly, we provide what we consider to be an appropriate summary of the main propositions to which we direct ourselves in this case:
(a) There is no burden of proof on an individual to prove their age. We are not bound to choose one or other of the parties’ positions;
(b) A Merton-compliant age assessment requires procedural fairness, which in turn relates to the provision of a suitable interpreter (where necessary), the absence of any predisposition as to age, the presence of an appropriate adult, adequate reasons for conclusions reached, an acknowledgement of the limited utility of relying on physical appearance and demeanour, and having a “minded-to” procedure in which the individual is given an opportunity to respond to concerns prior to a final conclusion being reached;
(c) All relevant evidence must be considered in the round;
(d) At a fact-finding hearing, it is the substance of the evidence which is of primary importance. Matters going to process are unlikely to be of decisive importance;
(e) Issues of vulnerability must be taken into account insofar as relevant;
(f) The fact that an individual has been untruthful about one aspect of their claim does not mean that the same necessarily applies to the rest of their evidence;
(g) The standard of proof is that of the balance of probabilities.
41. In respect of the need for caution when evaluating physical appearance, we note the recent observations of Fordham J at [4] of his permission judgment in R (oao Karimi) v Sheffield City Council [2024] EWHC 93 (Admin), that there “is a wealth of case law, as well as important guidance, which warns about the importance of not misunderstanding or overemphasising physical characteristics.”
42. Any reliance on an application of the “benefit of the doubt” should be treated with caution. It is not a requirement of fairness that a person be afforded any such benefit: see HAM v London Borough of Brent [2022] EWHC 1924 (Admin), at [39]. Further, and having regard to the immigration and asylum context (which is in certain respects analogous), there is no substantive principle of law that a person should be given the “benefit of the doubt”: see KS (benefit of the doubt) [2014] UKUT 552 (IAC). Rather, the evidence of a person must be assessed in the round and in the context of any vulnerabilities and other relevant matters which might have an impact on that evidence.
43. For the avoidance of any doubt, we confirm that we have had regard to all of the authorities referred to in the skeleton arguments.
The evidence
44. The parties provided an agreed trial bundle, indexed and paginated A1-F782, with an agreed statement of facts and issues and a witness template document, and an agreed supplementary trial bundle with an amended witness template document, indexed and paginated A1-D495.
45. As outlined above, further disclosure was provided from the respondent during the course of the hearing. This included, Ms Sayed’s handwritten notes of the visit with the applicant on 7 December 2023, emails between Mr Sayed and Ms Couchman and an example of a UASC initial welfare assessment form. The example UASC initial welfare assessment form was provided on our request.
46. We outline what we consider to be the key pieces of evidence relied on by the parties. It should not be inferred that if the evidence is not outlined below it has not been considered. We have carefully considered all the evidence before us.
Home Office Assessing Officer’s Report – applicant’s stated age disputed by the Home Office
47. The only assessment of the applicant’s age not to be accompanied by a witness statement or oral evidence by its author(s) is the Home Office assessment that took place on 4 December 2023. We understand that this assessment was undertaken prior to the applicant’s screening interview because the screening interview records the applicant’s date of birth as 20 September 1999, which was the date of birth allocated to the applicant following the assessment.
48. The assessment records that two officers, separately determined that the applicant’s physical appearance/demeanour strongly suggests that he was “significantly over 18 years of age and no other evidence exists to the contrary”. The explanation for the decision was that the applicant (referred to as “Migrant”) has a “receding hairline”, “pronounced Adam’s Apple”, a “substantial amount of thicker facial hair” and the applicant stated that it had not been more than a few days since he last shaved. The officers concluded that the applicant spoke with a “deeper, post-pubescent voice” which supported the officers’ view that he was an adult, his demeanour was “more consistent with that of an adult” and his “facial structure is fully developed with a defined jawline in common with the face of an adult male.” The applicant’s response to the decision on his age is recorded as “I do not understand I am not lying about my age.” Further reasons were provided as to why the officers decided to maintain their decision to dispute the applicant’s age following the applicant’s response under the headings “Physical Presentation” and “Demeanour”.
49. During the hearing we noted concerns about the observations in this section. In particular, we were concerned about the comment that the applicant’s “nose is developed and proportionate to his face which is common in adults”, he “has strong hands” and “the curvature in his body indicates developmental changes associated with adulthood.” During his submissions Mr Harrop-Griffiths informed us that “Islington does not agree with the characteristics listed in the Home Office assessment”, but asked us to note that the officers had found that the applicant looked much older than he claimed to be.
Screening Interview
50. The respondent sought to rely on statements the applicant made within the Screening Interview in support of their case that he is in his mid-20s. In particular, the respondent highlighted that at question 3.4 the applicant was asked to outline his journey to the UK. In response to the interviewer’s prompt that his description should include “how organised or assisted with arranging the legs”, the applicant had responded “I paid the smugglers to get to Libya. I organised getting to Tunisia by myself. I paid 2000 dinar from Tunisia to get to Italy. I organised Italy to France myself and France to UK.” At question 3.10, the applicant was asked if he had any close family in the UK and the applicant replied “Yes, a brother [MH], roughly 33 years old, I think he has residency here. I saw him nearly 8 years ago. I think he lives in Leeds.”
The respondent’s assessment after the visit on 7 December 2023
51. The applicant was transferred to NASS accommodation. In his case it was the Clink, a hostel in Islington. On 6 December 2023, the applicant completed an “Age Assessment Self-Referral Form.” In the form the applicant stated, “I want to stay in a hotel with other people in same age of mine.” A photograph of the applicant was attached to the form.
52. On 7 December 2023, the applicant was visited by Mr Sayed, a specialist social worker and Ms Couchman, a project manager overseeing the practice around unaccompanied asylum-seeking children in the respondent authority. They do not purport to have conducted a Merton compliant age assessment. It is their position, confirmed by both Mr Sayed and Ms Couchman in their oral evidence, that they conducted a “Welfare Assessment.”
53. The parties agree that Mr Sayed and Ms Couchman spent approximately 1 hour with the applicant and they used an Arabic interpreter through the telephone.
54. The outcome of the assessment was communicated to the applicant in the letter headed “Brief inquiry of age”. The letter is dated 8 December 2023 and was hand delivered to the applicant by Mr Sayed on 21 December 2023. The letter states:
“Based on two professionals observation of your presentation, emotional and physical maturity and the inconsistencies and gaps in the information you have shared, you were assessed to be significantly older than 16. The assessors estimated you may be between the age of 24 and 25.
As your estimated age is significantly higher than 16, you will therefore not be put for a welfare assessment and will not be offered any support by children service.”
55. The typed notes of the visit were provided to the applicant’s representatives and were included in the trial bundle. The notes record that it was observed that the applicant had “a deep voice as an adult…’ a very mature face and beard with thick strands of hair was seen on parts of his face…’ significant and deep lines on forehead that remain even when he is not making facial movements…’ very mature hands with thick hair on his arms…’very hairy legs.” The notes describe the applicant as engaging “in conversation in a very mature way, not as a child who would seek a professionals support” and that he possessed “a high level of confidence and came across as mature in his thinking and responses.” It was also recorded that the applicant was “reluctant to share information on his parents and siblings” and detailed that he gave his father’s age as 60 years old, his mother’s age as 37-38 years old and his step mother’s age as unknown.
56. The notes record that the applicant provided the names of his step brothers (we understand this to refer to his half-brothers), but their ages were not given, although the applicant is recorded as saying that B2 was grown when he was born, B3 has two children and B4 and MH both have one child. The applicant gave B5’s age as 13-14 years old, B6’s age as 11 years old and his sister’s age as 9 years old. The notes also record that the applicant gave the details of another sister called Baqit who was 6-7 years old. However, it is the applicant’s account that he has no such sister. The notes conclude that:
“In view of [the applicant’s] presentation, physical appearance, maturity and gap in the information, it is doubted that he is the age he claims. Based on observations and the conversation with [the applicant] about his background, it was concluded that [the applicant] is significantly older than the age he claimed.”
57. Two photographs taken by Ms Couchman and Mr Sayed during their visit were also provided in the bundle.
58. The respondent also provided the case notes in respect of the applicant from 6 December 2023 to 11 December 2023. The case notes indicate that on 11 December 2023, there were emails between social work teams requesting further information. In response, the social worker making the enquiry was informed of the visit to the applicant and the decision to refuse to age assess him further.
59. As outlined above, during the course of the hearing we were also provided with Mr Sayed’s handwritten notes of his visits of 7 December 2023 and 12 December 2023, and emails between Mr Sayed and Ms Couchman confirming the typed notes of the visit. It is apparent that in the email Mr Sayed sent to Ms Couchman with his first draft of the notes of the visit he repeatedly refers to the applicant as ‘Omar’. In his oral evidence Mr Sayed explained that he believed it was “a typo” and that Omar was someone he had been dealing with that day or the day before. In Ms Couchman’s response to the original email, she does not pick up on the ‘typo’, but suggests adding that the applicant said that the Italian authorities recorded his age as 19 and she would also say “significant and deep lines on forehead that remain even when he is not making facial movements.”
MH’s age assessment and Facebook evidence
60. Ms Couchman provided a witness statement dated 9 October 2024 in support of the respondent’s application to discharge the order for interim relief. Ms Couchman outlines new evidence regarding the applicant’s probable age, which included MH’s age assessment and evidence she had identified from Facebook. Ms Couchman explains that she considers it is “overwhelming evidence that the applicant is likely to be an adult and as old as 31.”
MH’s age assessment
61. The respondent provided a copy of MH’s age assessment, which had been carried out on 28 September 2016. In that age assessment it is recorded that MH said that he had two older brothers, one of whom had died and one of who was aged 20 years old at the date of the age assessment. The applicant has also referred to this half-brother, who we are referring to as B3. It is recorded that MH said that he had a younger sister who is a lot younger than him. The name MH gives her is the same name as the applicant gives his younger sister. It is also recorded that he mentioned three half siblings: the applicant, who is recorded as being two years younger than MH; a younger sister; and a younger brother whose age he does not know. The younger brother’s name he gives is the same name the applicant gives his oldest younger brother, who we are referring to as B5.
62. Ms Couchman concludes that MH’s age assessment supports the respondent’s assessment that the applicant is 23 years old, because MH is 25 years old and he describes the applicant as two years younger.
Facebook evidence
63. Ms Couchman identifies Facebook pages belonging to the applicant’s brothers as outlined below. It is not in dispute that these Facebook pages belong to the applicant’s family members that Ms Couchman identifies them as belonging to.
64. B3 is friends with MH on Facebook and they are pictured together in a photograph from MH’s wedding. B3’s Facebook page includes a post that describes him losing his passport with a picture of his passport that gives his date of birth as 1 January 1982, which would make him 42 years old now. B3 posted a picture of MH on 24 September 2021 with a caption that refers to his ‘young brothers’ and sister. The young brothers identified by B3 are B5, B6 and two others called Omar and Bakhit. There is no reference to the applicant.
65. On MH’s Facebook page, MH has posted a picture of someone Ms Couchman describes as an “adult male” alongside text that refers to him as MH’s “beloved brother.” Ms Couchman believes this to be B4 and observes that he is “very mature, at least in his mid-twenties.”
66. B4 is friends with B3 on Facebook and posted a picture of MH on his arrival in the UK. B4’s Facebook page includes a post of a photo which Ms Couchman understands to be B3, MH, B4 and B2. Ms Couchman notes that at the time the photograph was posted (20 September 2015) MH claims to have been 16 years old, but considers that does not accord with the photo because to her he looks in his late teens or early twenties.
67. Ms Couchman has identified two Facebook accounts belonging to B5. Ms Couchman asserts that the applicant’s account that B5 is 13-14 years old is “not plausible”. She considers that “his facial features resemble someone in their twenties or at least in their late teens.” The applicant posted a photo of himself on his account, which was then re-posted by B5 on the second account Ms Couchman identified.
68. It is Ms Couchman’s evidence that it can be concluded from the Facebook evidence that B3 is “undoubtedly aged 42”. MH said that B3 was 1-2 year classes above, so it is probable that MH is in his mid-30s. MH said that the applicant was 2 years younger than him in his age assessment, so there is “overwhelming evidence that [the applicant] is likely to be an adult, as old as 31.”
Age Assessment conducted by Sarah Edwards and Sheena Davi
69. The applicant relies on an age assessment dated June 2024, undertaken by Ms Sheena Davi and Ms Sarah Edwards, who are both qualified social workers. The assessors interviewed the applicant on 11 June 2024 from 9.30am to 2.30pm and again on 12 June 2024 from 9.30am to 3.00pm. Zoe Alderman from Action for Children acted as the applicant’s appropriate adult and was present for both interviews and the same Sudanese Arabic interpreter from Language Interpreters Limited acted as the interpreter on both days. The assessors outline their assessment under the following headings:
• Clarification of information;
• Physical appearance and demeanour
• Family Composition and Social History
• Education, Training and Employment
• Journey
• Independence and Self-Care Skills
• Health
• Information from Other Sources
70. The assessors produced an evidence table outlining the evidence they considered and the weight they gave it. After analysing that evidence, the assessors summarise their conclusion as follows:
“Based on the information available, we believe that the overwhelming evidence supports [the applicant’s] claimed age. We recognise that other professional judgments have deemed him to be over eighteen years of age, however, most of this evidence is unreliable due to its content or lack of transparency concerning the processes undertaken when gathering this information, therefore we are unable to give their judgements significant weighting.
There was no significant evidence collecting during our assessment interview that indicated [the applicant] was older than his claimed age and we were able to address some of the concerns raised in the previous assessments, which [the applicant] confidently and competently elaborated on to resolve.”
71. The applicant relies on a further addendum report provided by Ms Edwards in which she reviews the further evidence provided by the respondent, namely: the statement of Joshua Jackson, the applicant’s allocated social worker dated 25 September 2024; the statement of Ms Couchman dated 9 October 2024 (outlined in detail above); MH’s age assessment (including the handwritten notes); two Child/Young Person’s Assessment in respect of MH completed in February 2015 and September 2016; the social media evidence outlined in Ms Couchman’s witness statement and the applicant’s third statement dated 11 November 2024 responding to the additional evidence provided by the respondent; MH’s second statement dated 11 November 2024 responding to the issues arising from his age assessment; and a witness statement from Kim McFarlane, a senior support worker at NelCare, the applicant’s accommodation.
72. Ms Edwards did not conduct a further interview with the applicant. She reviewed the new evidence, updated the evidence table to include the new evidence and addressed the weight she gave it. After analysing the information, Ms Edwards summarised her conclusion as follows:
“When analysing the new evidence submitted by the local authority, I find that I cannot afford it substantial weight that would dispute [the applicant’s] age and therefore alter the conclusion in my original report. In contrast, whilst not adding information previously unknown,, the additional statement provided by NelCare has highlighted an additional organisation that support [the applicant’s] claimed age.
Therefore based on the original and all the new information provided, I continue to hold the professional conclusion that [the applicant] is more likely to be his claimed age of seventeen years.”
The witness evidence
73. The following witnesses provided witness statements and gave evidence before us:
• The applicant, who gave evidence in person, through a Sudanese Arabic interpreter.
• Erinç Argun Kayim, a Children’s Advisor in the Age Dispute Project at the Refugee Council, who gave evidence in person.
• MH, who gave evidence remotely through a Sudanese Arabic interpreter.
• Kim McFarlane, a Senior Support worker at NelCare, who works at the applicant’s accommodation placement and who gave evidence remotely.
• Mr Sayed, who gave evidence in person.
• Joshua Jackson, the applicant’s allocated social worker, who gave evidence in person.
• Ms Couchman, who gave evidence in person.
• Ms Edwards, who gave evidence remotely.
74. The witnesses all adopted their witness statements and were cross-examined. Some were re-examined and answered questions from us. We do not cite the witness evidence at length. We have read all the witness statements in depth and reviewed our detailed notes of the oral evidence. There is also an audio recording. We will deal with relevant aspects of the witness evidence when setting out our assessment of the evidence in due course.
The parties’ submissions
75. The parties made submissions in written pleadings and orally at the hearing. We consider the parties’ respective submissions when setting out our assessment of the evidence, below and emphasise that we have taken all of the points made into consideration.
Assessment of evidence and findings
76. In assessing the evidence, we have had regard to the guiding principles summarised earlier in this judgment and to those set out in the skeleton arguments and closing submissions, both oral and written.
77. Any holistic assessment must have some form of structure to it. The order in which we deal with the aspects of the evidence we regard as being relevant to our task is not indicative of their individual significance, nor should it be thought that we have viewed each matter in artificial isolation. Our assessment is cumulative.
The Assessments of Age
78. As outlined above there have been three assessments of the applicant’s age (although only one purports to be a Merton compliant age assessment).
Home Office Assessing Officer’s Report
79. As outlined above, we have concerns about the observations made in this assessment and the respondent confirmed that they did not agree with the characteristics listed therein.
80. We have not been provided with any handwritten notes taken by either officer during the assessment or any photographs of the applicant on the date of the assessment. It is recorded that the applicant was “informed in Arabic that his age has been disputed.” It is not recorded what (if any) questions were asked through the interpreter and the applicant’s responses to those questions. We note that the officers considered that the applicant looked much older than he claimed to be. We have reminded ourselves of the importance of not overemphasising physical characteristics and consider the officers’ opinion of the applicant’s appearance does not assist us, particularly without an accompanying photograph of the applicant’s appearance at the time. We therefore give this assessment limited weight.
The respondent’s assessment after the visit on 7 December 2023
81. As outlined above, it is the respondent’s position that they conducted a “Welfare Assessment.”
82. It was Ms Couchman’s oral evidence that they were aware the applicant was struggling in the hostel, had adults in his room, that the system providing adult accommodation is “extremely poor” and that the Clink hostel where the applicant was being accommodated was “particularly awful accommodation.”
83. We were provided with the respondent’s “Age Assessment Guidance”. Under the heading Welfare Check it states the following:
“This welfare check should be conducted with 24-48 hours of the referral being received. The check can be completed by 1 trained social worker and without an appropriate adult present, but it should have strong managerial oversight and the managers observations should also be included. In all circumstances an interpreter is required for this meeting and their details should be recorded on the form.
This welfare check and form is the same used for all new UASC referrals to our service and covers basic personal, health and safeguarding information. This welfare form should be uploaded on file and also shared with placements if we determine they are a child or a further assessment is needed.
Following this welfare check, a discussion with a manager is required to determine the following actions:
• Determine they are clearly a child or marginal so as to apply the benefit of the doubt and therefore no further enquiry of age is required….’
• Or, determine that an enquiry as to age assessment is required and undertake places to start this process.
• Or, determine that the claimed child looks significantly older, 25 years + or 7 years or more than their claimed age and as such a refusal to assess determination will be made. A letter outlining this decision will be provided alongside supporting agencies’ details to challenge this decision if the claimed child wishes. This must be authorised by senior management.”
84. In her oral evidence Ms Couchman confirmed she and Mr Sayed considered the applicant to be 23 years or older. She explained that the above policy was not in place at the time of the visit to the applicant and that a few months earlier they had changed “25 years +” to “23 years +”. She had not had the opportunity to change the policy document, but it had been varied by oral agreement and in emails. In cross-examination, Ms Couchman was referred to para 43 of AOJ, R (On the Application Of) v London Borough of Islington [2024] EWHC 427 (Admin), which states:
“In their witness statements, Ms Kennedy and Mr Meiklem explain that the Council applies a threshold of "25 years or older" when deciding whether to conduct an age assessment, i.e. the Council will not conduct an age assessment if at a welfare check the relevant social worker and manager consider that the individual has the appearance of someone aged 25 or older. In this respect, Ms Kennedy and Mr Meiklem's witness evidence is consistent with the Islington Guidance. They say that the reference to "mid-twenties" in the letter of 27 October 2022 is a reference to this 25 years or older threshold.”
85. Ms Couchman explained that this was not an inaccurate description of the respondent’s policy, but that the policy also includes the additional proviso of “or 7 years or more than their claimed age” as outlined above. In any event, Ms Couchman maintained that the applicant would have met the policy because they considered he was 7 years older than his claimed age of 16 years old.
86. We note that a telephone interpreter was provided for the visit, but that the interpreter’s details had not been recorded as directed on the welfare assessment form. In fact, the respondent accepts that no welfare assessment form was completed in respect of the applicant. This seems particularly surprising as it was Ms Couchman’s oral evidence that she designed the policy and she and Mr Sayed devised the welfare assessment form. Ms Couchman explained that although she would like social workers to use the form, they did not always do so. In response to questions as to why they did not use the form during their visit to the applicant, she explained that it was created for social workers who are less experienced than Mr Sayed and that she has “no doubt he asked the questions.”
87. We were provided with a template copy of the form. There are three parts of the form. Part 1: “Basic Information” includes questions about: name; age; documentary evidence of age; nationality; ethnicity; language; country of residence and birth; religion; and family and education. Part 2: “Immediate Health Check” includes questions about: health; emotions; sleep; thoughts of suicide/self-harm; history of attending hospital for treatment; medication; smoking/alcohol and drug consumption; allergies and dietary requirements. Part 3: “Journey to the UK and Assessing Risks” includes questions on: motivation to come to the UK; whether they want to claim asylum; whether anything bad happened in the home country/journey to the UK; whether they were detained; what countries they travelled to on the way to the UK; whether they have any injuries; who arranged for them to come to the UK; whether they have a mobile phone; whether anyone from home or agent can contact them; how they contact their family (if they are in contact); whether they feel safe in the UK and are they worried about anyone finding them; and whether there is anything worrying them. The person being assessed is also given an opportunity to add anything and ask any questions. At the end of the form, the social worker is prompted to record their observations and comment on age, presentation, vulnerabilities, and any other burning issues, etc.
88. Having reviewed Mr Sayed’s handwritten notes, the typed notes of the visit, and the letter provided to the applicant after the visit, we are satisfied that Mr Sayed and Ms Couchman did not undertake a welfare assessment. We note that the letter provided to the applicant after the visit is headed “Brief Inquiry of Age” and states that because his estimated age is significantly higher than 16 he will “not be put for a welfare assessment.” (sic) It was Mr Sayed’s oral evidence that the letter was headed “Brief Inquiry of Age” because he used an old template. However, the letter clearly states that a welfare assessment will not be conducted.
89. There is no record of the applicant being asked the questions in the welfare assessment form and what his responses were. It is clear that some questions were asked regarding the applicant’s background and family history. However, there is no record, either in the handwritten or typed notes of the visit, that the applicant was asked any questions regarding his health. We consider the “health check” to be a key aspect of the welfare assessment and we are satisfied that it was not undertaken at all. We do not accept that it can be inferred from Mr Sayed’s experience that all the questions in the welfare assessment form were asked, or that it was unnecessary for them to be asked.
90. Under the heading ‘Brief enquiry as to age’ the respondent’s “Age Assessment Guidance” states:
“Where a welfare check was made and it was determined an assessment of age is needed a Brief enquiry of age as to age assessment will be required.
This assessment should take no longer than 4 hours to complete and be Merton compliant by way of ensuring 2 trained and qualified social workers are present alongside an Appropriate Adult and interpreter. The assessment cannot proceed if any of these parties are not present.
This Brief enquiry (as to age) form must be used and there must be a completion of a minded to process if a full age assessment is required or if the claimed child is determined to be an adult.”
91. As outlined above, it is the respondent’s position that the visit was a welfare assessment and not a brief enquiry as to age. For the reasons outlined above, we are not satisfied that the visit constituted a welfare assessment. It is also clear from the policy guidance that it did not constitute a brief enquiry as to age. We are satisfied that the assessment of the applicant undertaken by Ms Couchman and Mr Sayed is not provided for in the respondent’s policy guidance.
92. After disclosure of the emails, it became clear that the typed notes from the visit with the applicant were based on an email from Mr Sayed to Ms Couchman. The original email repeatedly refers to the applicant as ‘Omar’. It was Mr Sayed’s evidence that this was “a typo” and that “Omar was someone [he] was dealing with that day or the day before.” We note that in her response to the email Ms Couchman did not pick up on the typo. The applicant submits that the typo demonstrates that Mr Sayed had got the applicant confused with another child or young person called Omar, or that he had copied and pasted from another file. We are not persuaded that this is the case. However, we consider that it (and Ms Couchman’s failure to spot the typo) indicates a lack of care in recording their visit with the applicant. Given the importance of that visit - it formed the basis of the respondent’s determination that the applicant was an adult - the lack of care is certainly unfortunate.
93. We also consider that Mr Sayed’s handwritten notes of the visit are inadequate. Mr Sayed did not record the questions that the applicant was asked or the answers that the applicant gave. Mr Sayed explained in his oral evidence that his handwritten notes are to remind him when he goes back to the office. We consider that this is why his handwritten notes should have been more detailed.
94. Notwithstanding our conclusion that a welfare assessment was not undertaken and the visit does not appear to be in line with the respondent’s policy guidance, we note that Ms Couchman and Mr Sayed are experienced professionals with significant experience of working with unaccompanied asylum seeking children and in Mr Sayed’s case conducting age assessments, and that it was their opinion that the applicant’s physical appearance and demeanour indicated to them that he was 23 years or older.
95. In his typed note of the visit Mr Sayed records that the applicant was “reluctant to share information about his parents and siblings and his life in Darfur”, “engaged in conversation in a very mature way, not as a child who would seek a professionals support” and that he “possesses a high level of confidence and came across as mature in thinking and responses.” This is not recorded in his handwritten notes and there is no explanation in the typed notes of how the applicant came across as “reluctant to share information”, confident or mature. There is no consideration of whether or how the use of a telephone interpreter could have impacted on how the applicant came across. Accordingly, we give these observations of the applicant’s demeanour limited weight.
96. We have reminded ourselves of the importance of not overemphasising physical characteristics, but in any event having reviewed the two photographs that Ms Couchman and Mr Sayed took during their visit to the applicant we are satisfied they do not support their conclusions. We do not agree that the applicant “has a very mature face.” Mr Sayed records in his typed notes that a “beard with thick strands of hair was seen of parts of the applicant’s face.” We note that this is not recorded in Mr Sayed’s handwritten notes and that it is simply incorrect. It is clear from the photographs that the applicant did not have a beard or indeed any visible facial hair at all. We also note that the photograph of the applicant attached to the “Age Assessment Self-Referral Form” does not show the applicant as having any visible facial hair. We are not persuaded that thick hair on a persons arms and legs is a useful indicator of age. We accept that the applicant has lines on his forehead. However, we do not consider that they are either “significant” or “particularly deep.” Accordingly, we do not find that we are assisted by Mr Sayed’s and Ms Couchman’s observations of the applicant’s physical appearance.
Age Assessment conducted by Sarah Edwards and Sheena Davi
97. There is no dispute as to the qualifications of Ms Edwards and Ms Davi. Their CVs are annexed to the report and having considered them we are satisfied that they have the requisite qualifications and experience to undertake an age assessment. We are also satisfied that an appropriate adult and interpreter were provided for the interviews.
98. In their skeleton argument, the respondent submits that the assessor’s conclusion cannot be relied on and should be given no weight at all because the assessors:
a. give no weight at all to the applicant’s physical appearance and “wholly discounted” the totality of the observations made by the respondent and Home Office about the applicant’s appearance;
b. refuse to take account of any photograph of the applicant showing him to be an adult because they are ‘heavily filtered’;
c. seek to explain his confident demeanour by stating he was confident about the answers he gave whereas he expressed himself as an adult;
d. fail to pick up on the discrepancies in the applicant’s account;
e. fail to ask questions designed to test his credibility;
f. find the applicant’s narrative of his life before he left Sudan and his journey to the UK is consistent with the account he gave other professionals without identifying who the other professionals are and in fact the applicant gave a different account during his screening interview;
g. refer to a ‘time-lapse’ in the applicant’s education history that was unaccounted for and he seemed unable to explain, but his school closing during COVID ‘dramatically reduced the unaccounted gap in the timeline without providing the context for these comments;
h. refer to three lots of feedback which is taken to mean Joshua Jackson, Erinç Argun Kayim and Katherine Crew, but does not take into account Mr Jackson’s statement dated 25 September 2024 and the respondent submits that Erinç Argun Kayim is “an advocate for those involved in age disputes rather than a truly objective observer.”
99. The respondent focussed their oral submissions on the assertion that the age assessment is not Merton compliant because Ms Edwards did not assess the applicant’s credibility, and did not probe the applicant or challenge him and instead conducted what the respondent describes as a “cosy chat.”
100. We address the respondent’s criticisms in turn. We do not accept that the assessors have given no weight at all to the applicant’s physical appearance, wholly discounted the observations made by the Home Office and the respondent, or did not take into account the photographs of the applicant showing the applicant to be an adult. On the contrary, we are satisfied the assessors considered and addressed these matters in detail.
101. The assessors consider the applicant’s physical appearance under the heading ‘Physical Appearance and Demeanour.’ Having reminded themselves that “physical appearance is not a reliable method of assessing age” they gave their observations “limited weighting”, they noted the comments made about the applicant’s physical appearance made by both the respondent and the Home Office. The assessors considered photographs of the applicant from his social media pages, concluding that they “bore little resemblance to him in person” and “appear to be heavily filtered”. The assessors decided to give the applicant’s physical appearance no weight because their observations supported his claimed age, but the photographs appeared to show that of an older male and therefore “show how unreliable [the applicant’s] physical presentation is when assessing his age. It is clear from the evidence table that the assessors did not “wholly discount” the observations of the respondent and the Home Office. Whilst the assessors make criticisms of both assessments, they give them “limited” weight, not no weight at all.
102. We accept that the assessors did not identify the three discrepancies identified by the respondent.
103. We note that to be Merton compliant assessors are required to make an assessment of credibility and to ask questions designed to test credibility. However, we are not satisfied that those questions must be asked in a challenging manner as the respondent appeared to imply. We note the ADCS, Age Assessment Guidance (with which the assessors record that in preparation for the interview they re-familiarised themselves) states the following under the heading ‘Questioning the child or young person’:
“Building trust and developing rapport at the beginning of the interview process is vital, and it will support the child or young person to speak freely and provide a more detailed narrative to inform the assessment. Simple, open-ended questions should generally be used, and you should ensure that questions are not confusing, repetitive or oppressive. You must take a child-friendly and sensitive approach to questioning, including checking that questions have been understood and offering breaks. The child or young person should be asked their age and date of birth, and given the opportunity to explain how they know their age and date of birth. The purpose of the questions is to develop a picture of the child or young person’s life and experiences, not to catch the child or young person in a “lie”.”
104. We are satisfied that the assessors did ask the applicant questions designed to test his credibility. For example, the assessors recorded that they asked the applicant how he knew his age and when he told them his mother had told him they “further queried whether this was a ‘one-off’ conversation with his mother or a subject that was discussed frequently in his family.” The assessors also record that there are photographs where the applicant does look older than his claimed age “which we pointed out to him.”
105. We accept that the assessors have not provided the context for their reference to a ‘time lapse’ in the applicant’s education history that was unaccounted for, but his school closing during COVID ‘dramatically reduced the unaccounted gap in the timeline.” However, the assessors have provided a “Timeline of other life events” in Appendix 4. It is apparent from reviewing the timeline that the ‘time lapse’ is because the applicant’s account is that he started Year 6 in September 2018 and Year 7 in September 2020.
106. We also accept that the assessors do not identify the other professionals that they are referring to when they conclude that “the narrative the applicant provided was consistent with that given to all other professionals.” However, when reading the report as a whole we understand that the assessors are referring to the fact that the applicant has consistently reported that his date of birth is 20 September 2007 as they record in the report at paragraph 5.1.2.
107. The assessors sought Mr Jackson’s views themselves. Mr Jackson’s witness statement, dated 25 September 2024, would not have been available to the assessors in June 2024. In any event, Ms Edwards considers his witness statement in her addendum report. The evidence table notes that Erinç Argun Kayim’s “role exposes her to a range of individuals in the same position as [the applicant], who are disputing their claimed age”, so the assessors were clearly aware of her role.
108. As outlined above, the respondent claimed that Ms Edwards had approached her addendum report with bias and it was put to her that it “is a desperate attempt to maintain her assessment.” This is a very serious allegation to make about an independent social worker. Ms Edwards responded that it would not be in her best interests to do that. We are satisfied that Ms Edwards did not approach her addendum report with bias. Ms Edwards considered the new evidence and recognised that some of the evidence did “present evidence to dispute [the applicant’s] claimed age,” but she considered that overall “the evidence continues to suggest that [the applicant] is more likely to be under 18 years of age, and therefore he claimed age of 17 years should be accepted.”
109. The respondent also put to Ms Edwards that she had misstated the law by referring to a “benefit of the doubt” principle. In response, Ms Edwards clarified that it was her opinion that Mr Jackson (whose evidence she is discussing) should have afforded the applicant the benefit of the doubt. We are satisfied that Ms Edwards was not claiming that the applicant should be afforded the benefit of the doubt on the basis of a legal principle.
110. We accept that there are some limitations to the assessor’s age assessment and Ms Edwards addendum report. However, we are satisfied that the age assessment itself is Merton compliant and that Ms Edwards considered all the new evidence in the addendum report, giving clear reasons why she maintained her view as to the applicant’s age. We therefore give it significant weight.
The applicant’s account and family history
The applicant’s account
111. The applicant has been consistent that his date of birth is 20 September 2007. It is recorded as his claimed date of birth in the Home Office assessment of his age undertaken on 4 December 2023, where it is also recorded that his mother told him his age and date of birth. It is also recorded as his claimed date of birth in the age assessment self-referral form. In their notes of the visit, Mr Sayed and Ms Couchman do not record the applicant’s claimed date of birth, but do record that he “is very precise about his age” and “said his mother told him his year of birth of 2007.” In oral evidence, the applicant explained that his mother had first told his year of birth and age when he started school, but after that she had told him his specific date of birth. When he was asked why she had told him that he explained, “When we sat together, talking with each other, she would mention that ‘you were born this month’.” The applicant also explained that when they started school the teachers would call out the pupils’ names and dates of birth. We consider that both these descriptions are plausible ways in which a child would learn their date of birth.
112. We note that the applicant has given his father’s age as 60 years old and his mother’s age as 37 or 38 years old when he was visited by Mr Sayed and Ms Couchman, but that he explained to Ms Edwards that these were estimates and not based on specific knowledge. In any event, we do not consider that the applicant’s father being in his 50s or 60s excludes the applicant from being the age he claims.
113. We have considered the applicant’s evidence that he said he organised his travel himself in both his screening interview and to Mr Sayed and Ms Couchman, but that in his witness statement he says that his parents helped arrange for him to be taken to Libya and after that he travelled with other youths who contacted his parents to arrange for payment from his journey from Tunisia to Lampedusa. We accept that this is discrepant. However, we remind ourselves that a person may lie about certain matters, but be truthful about others and we do not consider it indicates that the applicant is not his claimed age.
114. We note that Mr Sayed and Ms Couchman recorded an additional sister in their notes of their meeting with the applicant. However, as recorded above we have concerns about the notes of that visit. In any event, we do not consider it material to our assessment of the applicant’s age.
115. We note that the applicant does not claim to know the ages of his siblings, but has provided estimates of the ages of his full siblings. In respect of his older half-brothers, it is the applicant’s case that he does not know the ages of B2, B3 and B4 and he has given different ages for MH. In his screening interview the applicant says that MH is roughly 33 years old, but now says that he is 25 years old. Mr Sayed and Ms Couchman record in their notes of their visit that the ages of the applicant’s half-brothers are not given. The notes do not address why they are not given.
116. The applicant never lived with his half-brothers and considered them all to be older than him. We are satisfied that there is no reason why the applicant would know their exact ages. We will address Ms Couchman’s evidence regarding the Facebook evidence later in our decision.
MH’s evidence and age assessment
117. We have considered MH’s written and oral evidence in detail as well as his age assessment, the handwritten notes of the age assessment and the points raised by Ms Couchman regarding MH’s age assessment.
118. We do not place any weight on MH’s written and oral evidence as to the applicant’s age. We are prepared to accept that MH is aware that the applicant is significantly younger than him. However, we do not accept his claim to know the applicant’s age. We did not consider MH to be a reliable witness and we note that Mr Persey did not ask us to place any weight on his evidence in his oral submissions.
119. Having reviewed MH’s age assessment and accompanying handwritten notes we note that MH is described in the handwritten notes as being “upset”, “tearful” and “shaking” at times.
120. The handwritten notes of the age assessment record that MH said the following in respect of the applicant: “I don’t appropriately 2 years younger…”. The following word could be “then” or “than”. The age assessment itself records that MH has described the applicant as two years younger than MH which would make the applicant 23 years old. Ms Edwards’ opinion is that MH is recorded as saying “I don’t appropriately 2 years younger than” and it is not clear who MH is referring to the applicant being younger than. We consider that it is unclear what MH is saying, particularly as the sentence is prefaced with “I don’t…” We are not persuaded that MH is describing the applicant as being two years younger than himself.
Facebook evidence
121. We have reviewed the Facebook evidence, exhibited with Ms Couchman’s witness statement and her evidence as to what she considers that it demonstrates.
122. We do not find that the Facebook evidence assists us in determining the applicant’s age.
123. We do not accept that it demonstrates that B3 is “undoubtedly aged 42”, but we accept that it is cogent evidence that he is aged 42.
124. The applicant has never said that he knows B3’s age. The respondent’s notes of their visit with the applicant record that the applicant did not give B3’s age, but told them that B3 had two children. Ms Edwards records that the applicant described all his half-brothers as being married and have children and in his first witness statement he explains that he does not know the exact ages of his half-brothers, but that they are all older than him and are married. In his third witness statement, responding to the Facebook evidence, the applicant emphasises that he has always maintained he does not know the ages of his half-brothers. Accordingly, B3 being 42 years old is not inconsistent with the evidence the applicant has provided. We consider that it is plausible that the applicant could be his claimed age and have an older half-brother who is 42 years old.
125. We note that it is MH’s evidence that B3 is older than him, but that he does not know how much older, although we note MH described him as 20 years old in his age assessment.
126. We are not persuaded that we should infer that MH is in his mid-30s because he described B3 as being one to two classes above him in his age assessment. We note Ms Couchman’s observations in respect of a photograph of MH on B4’s Facebook page posted on 20 September 2015, when MH claimed to be 16 years old and that she considers that he looks in his late teens or earlier twenties. We are not persuaded that we can draw any conclusion as to MH’s age from the photograph. We consider that it could be of a 16 year old or someone in the early twenties. It is not possible to tell.
127. MH was found to be his claimed age with a date of birth of 5 October 1998 after an age assessment. There has been no challenge to that age assessment and the respondent did not seek to persuade us that it was unlawful or not Merton compliant. On the contrary, the respondent seeks to rely on statements MH made during the course of that age assessment. Having reviewed the age assessment we are satisfied that it is Merton compliant and we are not persuaded to go behind the findings that MH is his claimed age.
128. We are not assisted by Ms Couchman’s evidence that she considered the photographs of B4, on MH’s page to show someone “at least in his mid-twenties” or her evidence that she considers the photographs of B5 on his own Facebook page to resemble someone “in their twenties or at least in their late teens.” First, we do not agree with her observations that the photographs show people in their “mid-twenties” or in B5’s case “at least in their late teens.” Second, we note that a person’s physical appearance should be treated with caution when assessing their age and we consider that it is even more the case when one is assessing their physical appearance through photographs posted on social media.
Witness evidence of professionals
129. We have addressed the witness evidence of Ms Couchman and Mr Sayed in the context of their assessment of the applicant’s age, MH’s age assessment and social media. We do not consider that there is any need to address it further.
130. We note that Erinç Argun Kayim genuinely believes the applicant to be his stated age. She explained that most of her contact with the applicant has been over the telephone and she has only met the applicant on two occasions prior to the hearing. We do not consider that her evidence assists us in determining the applicant's age.
131. Mr Jackson’s evidence as to the applicant’s age appeared to change over time. In a telephone call with Ms Edwards on 10 June 2024, Mr Jackson told her that he thought the applicant was over 16 years old, but not necessarily over 18 years of age. In his witness statement dated 25 September 2024, Mr Jackson explained that he did not feel able to adequately comment or give his professional opinion on the applicant’s age because he had only attended one age assessment training. He did explain that he found it hard to believe that the applicant was his claimed age and believed him to be older, but could not say how old due to his lack of experience. Mr Jackson also commented that he had seen the applicant with a clear facial stubble, it was obvious the applicant shaves and that he had been shaving for a while. Mr Jackson did not explain how he was able to assess that the applicant had been shaving for a while.
132. In his oral evidence, Mr Jackson confirmed that he had seen the applicant approximately 8-10 times for approximately 40 minutes to 1 hour on each occasion. Mr Jackson also explained that since he wrote his witness statement he had received more training on age assessments so felt more confident to assess the applicant’s age. Mr Jackson did not give his opinion as to what he considered the applicant’s actual age to be, but he confirmed that it was his opinion that the applicant was an adult and it was possible he could be 36 years old. Mr Jackson considered that it was possible that the applicant could be 36 years old because “you never really know the true age of an unaccompanied asylum seeking child” and “you just have to keep an open mind to the possibility that they’re much older than they say they are.” We do not consider that we are assisted by Mr Jackson’s evidence. Until his oral evidence, he had been very clear that he did not feel confident assigning an age to the applicant and, candidly, he at least implicitly doubted whether the applicant was the age claimed by the respondent. With respect, we do not regard Mr Jackson’s oral evidence as adding anything of substance to what he had previously said, and his evidence as a whole does not carry material weight
133. Ms McFarlane has over three years’ experience of working with young asylum seekers. She notes that when the applicant arrived in their placement her team interacted with the applicant “without considering he might be over 18.“ She also describes the applicant as receiving a high level of support and presenting “with many characteristics typical of a 17 years old, including friendships with others of a similar age and shared interests.”
134. In her oral evidence Ms McFarlane explained that there are eight young people in the placement and that she works shifts at the placement, which encompasses day and night. In her witness statement she explains that when she refers to the applicant’s friendships with those of a similar age, she is referring to his friends from college who visit him at the placement. She said she knows that they are 17 years old because they are required to provide ID when they first visit. Ms McFarlane stated that the only person who was older than 17 who had visited the applicant was MH. When it was put to Ms McFarlane that the respondent thought the applicant was an adult and possibly in his 20s, she responded “I just can’t see it. Honestly, I can’t see it. I don’t see the difference between him and other 17 years olds personally.” Ms McFarlane explained that there were safeguarding procedures in place regarding the appropriateness of young people being in the placement and that looking at the age range within the placement is more important than ever because they have started accepting females into the placement and they could not have a 16 year old girl in the placement with someone over the age of 18 years old. It was clear from her evidence that Ms McFarlane and her team did not consider there were any safeguarding concerns about the applicant being in the placement. We found her evidence to be reliable and deserving of real weight. She was entirely straightforward in her evidence, clearly committed to her role and responsibilities (including all relevant safeguarding procedures), and has been in a position to give evidence of relatively prolonged interaction with the applicant in the placement context.
135. We note that Katherine Crew, who works at the Union Chapel, also provided a witness statement. The Union Chapel has been contracted by Islington Council to provide well-being support for asylum seekers in local hotel accommodation. Ms Crew explained that she is not qualified to determine someone’s age, but that the applicant’s appearance and demeanour gave his claim sufficient credibility for her to refer him to the Refugee Council. We note that the applicant and respondent agree that no weight should be placed on Ms Crew’s witness evidence. We have considered Ms Crew’s witness statement, but we agree with Ms Edwards conclusion that her evidence is “neutral” and we consider that it does not assist us in determining the applicant’s age.
Physical Appearance and Demeanour
136. Physical appearance and demeanour are relevant considerations, but ones which should be treated with caution. This is particularly so in light of potential cultural differences and the wide-ranging subjective views (often at a subconscious level) which might inform conclusions on a person’s age.
137. We have considered all the evidence regarding the applicant’s physical appearance and demeanour and indeed our own observations of the applicant’s physical appearance in photographs and in court.
138. In terms of our assessment, the applicant’s physical appearance is of little value to our overall task, but we do not consider that the applicant’s physical appearance provides material support for the respondent’s conclusion that he is 8 years older than his claimed age.
139. Overall, we do not regard the applicant’s demeanour as representing a significant factor either for or against his claimed age and date of birth. On our assessment of the evidence, it seems to be the case that his attitude/demeanour/presentation differed according to the context in which it was perceived.
Conclusions
140. In light of the cumulative assessment we have undertaken and the findings set out above, we conclude that it is more likely than not that the applicant was 16 years old when he arrived in United Kingdom on 4 December 2023 and that he is now 17 years old.
141. We attribute the date of birth of 20 September 2007.
142. Without repeating what has gone before and emphasising the intensely fact-sensitive nature of this particular case, the essential reasons for our conclusion are as follows.
143. First, we have found that the applicant has been consistent as to his age and his date of birth at all times, stating that he was 16 on arrival in this country and maintaining that age to date.
144. Secondly, we accept the applicant’s explanation as to how he knew his age and date of birth; i.e. his mother and teachers told him.
145. Thirdly, we acknowledge that the applicant has not been entirely consistent in all aspects of his own evidence and has sought to rely on the unreliable evidence of MH. However, we consider that it is more likely than not that inconsistencies and discrepancies in the applicant’s evidence arose from issues with interpreters and pressure to provide definitive answers to questions the applicant did not know the answers to, such as his parents age. In any event, we remind ourselves that a person may lie about certain matters, but be truthful about others: the assessment of credibility is not necessarily an “all or nothing” exercise. In addition, there is almost always going to be doubt, but that is why the balance of probabilities plays an important part in age assessment cases. We have previously explained why MH’s unreliable evidence does not materially undermine the applicant’s case as a whole.
146. Fifthly, we have identified a number of material shortcomings in the respondent’s assessment of the applicant’s age and the new evidence relied on by the respondent in support of their claim that the applicant is an adult. We also note the respondent initially assessed the applicant to be 24 years old, but in light of MH’s age assessment and Facebook evidence considers that he could be as old as 31 years old.
147. Sixthly, the applicant relies on a Merton compliant age assessment which we have afforded significant weight, which supports his claimed age.
148. It follows from the above that the applicant was a child when he arrived in the United Kingdom and at the date of this decision.
Disposal
149. The parties are invited to draw up an Order which reflects the terms of this judgment. The Order should address any ancillary matters, including any application for permission to appeal and costs.
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