Tribunal decisions

The decision

JR-2024-LON-003228

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

EXJ
(Anonymity Direction Continued)

Applicant

and

ST HELENS BOROUGH COUNCIL

Respondent

ORDER

BEFORE Upper Tribunal Judge Mahmood

HAVING considered all documents lodged and having heard Ms Susana Ferrin of counsel, instructed by Luke and Bridger Law, for the Applicant and Mr Lee Parkhill of counsel, instructed by Legal Service, St Helens Borough Council for the Respondent at a hearing on 15 to 17 July 2025

AND UPON hearing oral evidence

IT IS DECLARED THAT the Applicant’s date of birth is 5 January 2007. IT IS ORDERED THAT:
1. The Application for judicial review is allowed for the reasons provided in the ex tempore judgment on 17 July 2025.
2. The Respondent’s age assessment dated 2 July 2024 is hereby quashed.

3. Having considered the parties written submissions on costs provided after the hearing, the circumstances do not justify a departure that the unsuccessful party shall pay the costs of the successful party. Therefore, the Respondent shall pay the Applicant’s costs of the application on the standard basis. Such costs to be the subject of detailed assessment, if not agreed.

4. The Respondent shall make an interim payment on account of costs in the agreed sum of £25,000.00 by no later than 4pm on 15 September 2025.

5. There shall be a detailed assessment of the Applicant’s publicly funded costs.

6. Permission to appeal is refused because there is no arguable case that there was an error of law and there are no other reasons that require consideration by the Court of Appeal.
Signed: Abid Mahmood
Upper Tribunal Judge Mahmood

Dated: 15 August 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): 18/08/2025
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-003228

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
Breams Buildings
London, EC4A 1WR

Before:

UPPER TRIBUNAL JUDGE MAHMOOD

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Between:
THE KING
on the application of EXJ
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Ms Susana Ferrin, Counsel
(instructed by Luke & Bridger Law), for the Applicant

Mr Lee Parkhill, Counsel
(instructed by Legal Services, St Helens Borough Council) for the Respondent

Hearing date: 15-17 July 2025

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J U D G M E N T

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Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Applicant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Applicant, likely to lead members of the public to identify the Applicant without his express consent. Failure to comply with this order could amount to a contempt of court. The parties may apply on notice to vary this direction. The direction is being made because the Applicant has a protection claim which remains to be finalised.

Summary of Case.
Because the judgment is necessarily lengthy due to the substantial amount of written and oral evidence, this summary is provided as an overview.
This judicial review concerns the lawfulness of an age assessment conducted by St Helens Borough Council, which concluded that the Applicant, EXJ, was aged between 23–25, contrary to his claimed date of birth of 5 January 2007. The Applicant had arrived in the UK via small boat and had asserted he was a minor at the time.
The judgment concludes that the local authority’s age assessment was procedurally unfair and substantively flawed. Key deficiencies included the absence of a “minded to” process, lack of an appropriate adult during the feedback session, and reliance on pseudoscientific indicators such as physical appearance without medical expertise. The judgment notes the local authority’s failure to consult key individuals with prolonged contact with the Applicant, including support workers and his mother.
The judgment accepts the Applicant’s evidence, supported by multiple witnesses, that he exhibited behaviours and interests consistent with adolescence. Observational evidence from professionals and peers indicated developmental traits typical of a minor. The judgment concluded that the Applicant was credible and consistent, despite cultural and linguistic barriers.
Applying the balance of probabilities test, the judgment determines that the Applicant’s date of birth to be 5 January 2007, confirming he was under 18 at the time of the local authority’s assessment.
This judgment reinforces the importance of procedural fairness, adherence to established guidelines in age assessments, procedural rigour. It also highlights the crucial duties on the parties in respect of witness statements and expert evidence.

Judge Mahmood:
1. This is my decision, which I have delivered orally, extempore, at the hearing on day 3 of these judicial review proceedings.
Introduction
2. I am dealing with an application in which the Applicant challenges an age assessment dated 2 July 2024 (served in August 2024) whereby the Respondent concluded that the Applicant “is older than 18 years old and we would estimate that his age is between 23-25 years old with date of birth of 05- Jan-2001 being more appropriate”. Whereas the Applicant claims that his date of birth is 5 January 2007 and which would have made him under the age of 18 when he had arrived in the United Kingdom via a small boat.
3. My task is to assess the Applicant’s age. I do so by considering the extensive oral and written evidence which has been presented to me and after considering the detailed oral and written submissions made by both counsel in this case.
Procedural History
4. I have been provided with a substantial number of documents. I am not going to refer to all of the documents and I refer first to the procedural history in respect of the matter at the outset.
5. The Applicant had issued his application for permission to apply for judicial review on 23 September 2024. Thereafter various orders were made by the Administrative Court and by the Upper Tribunal.
6. On 25 September 2024, His Honour Judge Halliwell, sitting as a Judge of the High Court, made various orders, including orders for anonymity. The learned Judge had listed the matter for further consideration in respect of the Applicant’s application for interim relief. Thereafter His Honour Judge Sephton KC, sitting as a Judge of the High Court, ordered at an attended hearing that the Applicant be granted permission to conduct his proceedings without a litigation friend. Permission was granted to the Applicant to apply for judicial review on all grounds and the matter was then transferred to the Upper Tribunal for further case management and directions. The learned Judge had refused interim relief.
7. On 26 November 2024, when the matter was here at the Upper Tribunal, a senior legal manager, Mr Asim Hussain, made various case management directions to further progress the case.
8. On 20 January 2025 Upper Tribunal Judge Smith dealt with the parties’ joint application for an extension of time to deal with the directions which were previously made. Similarly, there was a further application for an extension of time which was granted by Upper Tribunal Judge Smith on 20 February 2025.
9. On 12 March 2025 there was an attended directions hearing, at which Upper Tribunal Smith made various orders, including in respect of the listing of a hearing over 3 days before me and other consequential directions in respect of bundles and witnesses. At this hearing before me, I have heard from several witnesses and I shall return to their evidence in due course.
Obtaining the Best Evidence
10. At the outset of the hearing before me, Ms Ferrin had invited me to consider the Appellant’s vulnerability and she invited me to apply special measures when considering the Appellant’s evidence. The special measures sought were not objected to by Mr Parkhill on behalf of the Respondent. Pursuant to the Joint Presidential Guidance Note No. 2: Child, vulnerable adult and sensitive appellant guidance dated, 30 October 2008, I acceded to the application that there be breaks for the Applicant every 40 minutes. Additionally, there be the avoidance of multifaceted questions, that there be the use signposting and simple language and where required there be the repetition of questions.
11. If I may say so, Mr Parkhill obviously very experienced in this regard, adhered to these matters well during his cross examination of the Appellant. I am satisfied that the Applicant was able to present his best evidence using this format. It is right to observe the Applicant’s evidence took a little longer than was perhaps anticipated, but that is of relatively limited consequence when such an important issue has to be decided, from both parties’ perspectives.
The Law
12. I refer to the law from outset and upon which there did not appear to be any disagreement between the parties. I shall then return to the background and factual matrix in due course.
13. Age assessments are regularly undertaken by local authorities when seeking to determine whether to provide services to individuals under the Children Act 1989.
14. Section 105 of the Children Act 1989 defines as child as a person of less than 18 years of age subject to certain limited cases where the definition is extended pursuant to paragraph 16 of the schedule (which does not apply in this case).
15. Section 17(1) of the Children Act 1989 provides:
“(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this part)-
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children’s needs.”
Section 17(10) states:
“(10) For the purposes of this Part a child shall be taken to be in need if:
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
and ‘family’, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.”
16. Insofar at the legal requirements for age assessments are concerned, there is a well- trodden path in respect of the case law, but the most helpful starting point is the judgment of Stanley Burnton J, as he then was in R (on the application of B) Merton London Borough Council [2003] EWHC 1689; [2003] 4 All ER 280 whereby detailed guidance was provided for local authorities to follow when assessing age.
17. At paragraph 21, His Lordship said:
“21. There is no statutory procedure or guidance issued to local authorities as to how to conduct an assessment of age …
22. The determination of an applicant’s age is rendered difficult by the absence of any reliable anthropometric test: for someone who is close to the age of 18, there is no reliable medical or other scientific test to determine whether he or she is over or under 18.”
His Lordship referred to The Guidelines for Paediatricians issued by the Royal College of Paediatrics and Child Health where it was said:
“Moreover, for young people aged 15-18, it is even less possible to be certain about age. There may also be difficulties in determining whether a young person who might be as old as 23 could, in fact, be under the age of 18. Age determination is an inexact science and the margin of error can sometimes be a much as 5 years either side…Any assessments that are made should also take into account relevant factors from the child’s medical, family and social history.”
His Lordship continued at paragraph 23 onwards to state:
“23. Different people living in the same country, with the same culture and diet, mature physically and psychologically at different rates. …
24. The difficulties are compounded when the young person in question is of an ethnicity, culture, education and background that are foreign, and unfamiliar, to the decision-maker…
28. … It is necessary to take a history from him or her with a view to determining whether it is true. A history that is accepted as true and is consistent with an age below 18 will enable the decision maker in such a case to decide that the applicant is a child. Conversely, however, an untrue history, while relevant, is not necessarily indicative of a lie as to the age of the applicant…Furthermore, physical appearance and behaviour cannot be isolated from the question of the veracity of the applicant: appearance, behaviour and the credibility of his account are all matters that reflect on each other…
37. … The decision maker cannot determine age solely on the basis of the appearance of the applicant. In general, the decision maker must seek to elicit the general background of the applicant, including his family circumstances and history, his educational background, and his activities during the previous few years. Ethnic and cultural information may also be important. If there is reason to doubt the applicant’s statement as to his age, the decision maker will have to make an assessment of his credibility, and he will have to ask questions designed to test his credibility…
39 … A local authority may take into account information obtained by the Home Office; but it must make its own decision, and for that purpose must have available to it adequate information. …”
18. Merton has thereafter been applied and referred to in numerous other higher court authorities and Upper Tribunal authorities, including in R (on the application of (FZ) v Croydon London Borough Council (also referred to as R (on the application of Z) v Croydon London Borough Council [2011] EWCA Civ 59; [2011] PTSR 748, Sir Anthony May P, giving the judgment on behalf of the Court of Appeal said at paragraph 3:
“In Merton Stanley Burnton J gave guidance in judicial review proceedings and appropriate process to be adopted by a local authority assessing the younger person’s age in borderline cases. The assessment does not require anything approaching a trial and judicialisation of the process is to be avoided. The matter can be determined informally provided there are minimum standards of enquiry and fairness. This decision and this guidance have led to the development of what is sometimes referred to at a Merton compliant interview or process.”
19. In VS v the Home Office [2014] EWHC 2483, Mr Simon Picken KC, sitting as a deputy Judge of the High Court, as he then was, reviewed the authorities and helpfully summarised:
“78. Drawing on Miss Luh’s helpful summary of the Merton guidelines in her skeleton argument (a summary with which Mr Hansen did not take issue), albeit with some modifications in relation to the authorities which were cited, the relevant guidelines can be summarised as follows:
(1) The purpose of an age assessment is to establish the chronological age of a young person.
(2) The decision makers cannot determine age solely on the basis of the appearance of the applicant, except in clear cases: Merton per Stanley Burnton at [37].
(3) Physical appearance is a notoriously unreliable basis for assessment of chronological age: NA v LB of Croydon [2009] EWHC 2357 (Admin) per Blake J at [27].
(4) Demeanour can also be notoriously unreliable and by itself constitutes only ‘somewhat fragile material’: NA per Blake J at [28]. Demeanour will generally need to be viewed together with other things. As Collins J stated in A and WK v London Borough of Croydon & Others [2009] EWHC 939 (Admin) at [56]:
‘… What is meant by the observation that he appeared to be comfortable in his body? It is difficult to follow what this does mean and how a discomfort with a changing body can manifest itself. Nonetheless, the assessment of his physical appearance and demeanour coupled with the discrepancies and inconsistencies in his account of how he knew his age could justify the conclusion reached.’
(5) There should be ‘no predisposition, divorced from the information and evidence available to the local authority, to assume that an applicant is an adult, or conversely that he is a child’: see Merton per Stanley Burnton at [37-38]. The decision, therefore, needs to be based on particular facts concerning the particular person.
(6) There is no burden of proof imposed on the applicant to have to prove his or her age in the course of the assessment: see Merton per Stanley Burnton at [38]. This is confirmed also by R(CJ) v Cardiff CC [2011] EWCA Civ 1590, in which, at [21], Pitchford LJ said this:
‘It seems to me that once the court is invited to make a decision upon jurisdictional fact it can do no more than apply the balance of probability to the issue without resorting to the concept of discharge of a burden of proof. In my view, a distinction needs to be made between a legal burden of proof, on the one hand, and the sympathetic assessment of evidence on the other. I accept that in evaluating the evidence it may well be inappropriate to expect from the claimant conclusive evidence of age in circumstances in which he has arrived unattended and without original identity documents. The nature of the evaluation of evidence will depend upon the particular facts of the case.’
(7) In similar vein, benefit of any doubt is always given to the unaccompanied asylum-seeking child since it is recognised that age assessment is not a scientific process: see A and WK per Collins J at [40].
(8) The two social workers who carry out the age assessment should be properly trained and experienced: A and WK per Collins J at [38].
(9) The applicant should have an appropriate adult, and should be informed of the right to have one with the purpose of having an appropriate adult also being explained to the applicant: see FZ per Sir Anthony May P at [23- 25]; J per Coulson J at [14]; and AAM per Lang J at [94(a)].
(10) The child should be told the purpose of the assessment see FZ per Sir Anthony May P at [3] (summarising Merton).
(11) The decision ‘must be based on firm grounds and reasons’ for it “must be fully set out and explained to the applicant’: A and WK per Collins J at [12].
(12) The approach of the assessors must involve trying ‘to establish a rapport with the applicant and any questioning, while recognising the possibility of coaching, should be by means of open-ended and not leading questions’. It is ‘equally important for the assessors to be aware of the customs and practices and any particular difficulties faced by the applicant in his home society’: A and WK per Collins J at [13].
(13) It is ‘axiomatic that an applicant should be given a fair and proper opportunity, at a stage when a possible adverse decision is no more than provisional, to deal with important points adverse to his age case which may weigh against him’: FZ per Sir Anthony May P at [21]. It is not sufficient that the interviewing social workers withdraw to consider their decision, and then return to present the applicant ‘with their conclusions without first giving him the opportunity to deal with the adverse points’: [22]. See also J per Coulson J at [15]; AAM per Lang J at [94(c)]; and Durani per Coulson at [84-87] (in particular, at [84]: ‘Elementary fairness requires that the crucial points which are thought to be decisive against an applicant should be identified, in case the applicant has an explanation for them’).
(14) Assessments devoid of details and/or reasons for the conclusion are not compliant with the Merton guidelines; and the conclusions must be ‘expressed with sufficient detail to explain all the main adverse points which the fuller document showed had influenced the decision’ (FZ per Sir Anthony May at [22]).”
20. I turn to the decision in R (on the application of HAM) v Brent London Borough Council [2022] EWHC 1924 (Admin); [2022] PTSR 1779, particularly at paragraphs 10 and 32. In asking the question as to whether an assessment was fair depends on the circumstances and as was made clear, observations in respect of demeanour are particularly unreliable in the context of brief one time encounters with individuals.
21. During the hearing before me and in the skeleton arguments of the parties, I have also been referred to the decision of the Upper Tribunal comprising a panel of the Vice President Ockleton and Upper Tribunal Judge Lane in R (on the application of v Solihull Metropolitan Borough Council (AAJR) [2012] UKUT 00118 (IAC), when it was said at paragraphs 19 and 20:
“19. … So far as demeanour is concerned, it seems to us that there may be value to be obtained from observations of demeanour and interaction with others made over a long period of time by those who have opportunity to observe an individual going about his ordinary life. But we find it difficult to see that any useful observations of demeanour or social interaction or maturity can be made in the course of a short interview between an individual and a strange adult. There may of course be cultural difficulties in such an interview but there are the ordinary social difficulties as well.
20. The asserted expertise of a social worker conducting an interview is not in our judgement sufficient to counteract those difficulties. A person such as a teacher or even a family member, who can point to consistent attitudes, and a number of supporting instances over a considerable period of time, is likely to carry weight that observations made in the artificial surroundings of an interview cannot.”
22. I have also been referred to the age assessment guidance which has been issued by the Association of Directors of Children’s Services, (“ADCS ”), which was published in October 2015. That sets out various matters including consideration of additional needs and vulnerabilities, the allocation of social workers, that there had been appropriate consideration of appropriate adult independent of the local authority. That there be the analysis on a holistic basis, that there be the opportunity for children and young people to address any relevant gaps or inconsistencies, that before reaching a decision that contradicts the stated age, there be a stage at which there should be discussion with a child or young person in respect of the factors which had led to the assessors coming to their opinion.
23. I shall return to more of the caselaw shortly, but I interpolate to state then when permission to apply for judicial review was granted, it was granted in respect of the assessment of whether or not the Respondent had conducted a lawful assessment of age and for there to be a determination of the Applicant’s date of birth. The Applicant contends that the assessment of age was defective. Mr Parkhill in his skeleton argument has helpfully summarised that the Applicant contends that the age assessment was procedurally unfair by reason of the following matters:
(a) the absence of an effective ‘minded to’ process;
(b) the absence of an appropriate adult during the third session of the age assessment;
(c) the improper reliance placed upon baseless unevidenced and pseudoscientific postulations of physical proof or of indictors of age made by those without medical or scientific qualification or expertise;
(d) the local authority’s failure to comply with its duty of sufficient enquiry and failure to seek information from the Applicant’s mother, his previous carers within his supported accommodation and/or the independent social workers; and
(e) the erroneous approach taken to the Applicant’s credibility.
24. I return to the caselaw. In R (on the application of CJ) v Cardiff City Council [2011] EWCA Civ 1590; [2012] 2 ALL ER 836, Pitchford LJ with whom Laws LJ and Lloyd Jones J agreed, said,
“Where the issue is whether the claimant is a child for the purposes of the Children Act it seems to me that the application of a legal burden is not the correct approach. There is no hurdle which the claimant must overcome. The court will decide whether, on a balance of probability, the claimant was or was not at the material time a child. The court will not ask whether the local authority has established on a balance of probabilities that the claimant was an adult; nor will it ask whether the claimant has established on a balance of probabilities that he is a child.”
25. Mr Parkhill states in his skeleton argument and with which I agree,
“Accordingly, the Upper Tribunal is not primarily concerned whether the Respondent’s assessment of age was lawful.” That is because, as set out in the FZ, R (on the application of) v London Borough of Croydon,
“the core challenge is likely in most cases to be a challenge to the age which the local authority assessed the claimant to be. Thus most of these cases are now likely to require the court to receive evidence to make its factual determination. It is therefore understandable that Mr Hadden, for the respondent local authority in the present appeal, submitted that orthodox judicial review challenges are likely to be subsumed in the court’s factual determination of the claimant's age. If the claimant succeeds on his factual case, the orthodox judicial review challenges fall away as unnecessary.”
26. More recently in R (on the application of SB) v Royal Borough of Kensington and Chelsea [2023] EWCA Civ 924; [2024] 1 WLR 2613 Elizabeth Laing LJ, with whom Falk LJ and Sir Launcelot Henderson agreed, said at paragraph 86,
“… As this court realised in Z v Croydon, an arguable procedural lapse may support an application for permission to apply for judicial review, but once permission to apply has been granted, it is unlikely to play a significant part in the court's decision, based on all the evidence, about the claimant's actual age, which is the court’s real job in these cases. Once permission to apply for judicial review has been granted, it seems to me that the norm should be that the whole case is transferred to the UT, for the UT to consider any procedural challenges in the context of its decision on the merits.”
27. As was said by Baroness Hale in R (on the application of A) and another v the London Borough of Croydon [2009] UKSC 8; [2009] 1 WLR 2557 at paragraph 33,
“The better the quality of the initial decision-making, the less likely it is that the court will come to any different decision upon the evidence.”
28. Additionally, Baroness Hale said at paragraphs 27 and 46,
“27. The question whether a person is a ‘child’ is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers…
46. The result is that if live issues remain about the age of a person seeking accommodation …, then the court will have to determine where the truth lies on the evidence available. …”
29. Lord Hope also emphasised at paragraph 54 in R (on the application of A) and another that in determining an individual’s age,
“… The initial decision taker must appreciate that no margin of discretion is enjoyed by the local authority on this issue. But the issue is not to be determined by a consideration of issues of policy or by a view as to whether resort to a decision by the court in such cases is inappropriate. It depends entirely on the meaning of the statute.”
30. In R (on the application of K) and others v Birmingham City Council [2011] EWHC 1559 (Admin); [2013] 1 WLR 1755, the Deputy Judge in that case had observed the Claimant’s credibility is,
“… highly material, if not fundamental, to the fair and proper assessment of his age.”
31. In MVN v The London Borough of Greenwich [2015] EWHC Civ 1942 (Admin); Pickin J said at paragraph 27 that when assessing a young person’s credibility in terms of their age that,
“The primary focus is on the credibility of the person’s evidence concerning his or her age, but that it is permissible to have regard to credibility more generally provided that, in looking at credibility more generally, the primary focus to which I have referred is not forgotten.”
His Lordship also said at paragraph 28(1),
“(1) Decision makers considering asylum claims should take everything material into account. …
(2) It is an error of law for a decision maker to seek to assess the credibility of a claim in isolation without considering other relevant evidence such as reports regarding a country that corroborates a person’s claims: …
(3) It is also an error of law to fail to take into account of relevant expert evidence when assessing credibility: …
…
(5) Allowances should be given to the fact that asylum seekers (and similarly victims of trafficking) may have problems giving coherent accounts of their history.”
32. I have set that law out in some detail despite there being no real issue in respect of it because the caselaw makes clear the care and attention with which the task before me must be considered but also, by those at local authorities undertaking age assessments.
The Evidence
33. I turn to the evidence provided to me in this case. As Baroness Hale said when considering where to start when assessing age that, “one has to start somewhere” and in my judgment the most appropriate place to start in this case is with the Respondent’s age assessment. That appears at pages 8 to 32 of the bundle and shall refer to parts of it. The Respondent’s age assessors did not provide oral evidence.
The Local Authority’s Age Assessment
34. As page 9 shows, there were two local authority age assessors. The first was Mr Billy Ireland, a registered social worker at St Helens Borough Council. Second, there was Nicola Kearns, a registered social worker also working at St Helens Borough Council. They both state that they have undertaken a number of assessments of a person’s age and that they undertook this particular age assessment with consideration given to the ADCS, which I referred to earlier. They also make it clear that at the beginning of each assessment, they appreciated and realised that it was essential that the Applicant understood what was being said and care was taken to ensure the correct language and dialect was used by the interpreter who was there to assist the Applicant. For the first two assessments, also present was an appropriate adult, who was independent of the local authority. Mr Ireland and Ms Kearns said at page 10:
“Completing an assessment to determine an approximate age of a person can be complex however, there are several considerations that need to be considered. When assessing Unaccompanied Asylum-Seeking Children’s (UASC’s), prior experience of completing such assessments, and knowledge of other factors which may impact upon an UASC’s presentation needs should be considered to assist in the determination of an approximate age.”
35. There is a subheading of ‘Assessment Process’ on pages 11 and 12 of the bundle and that informs that on 6 June 2024 the proposed assessment was cancelled because there was no interpreter present. On 7 June however, the age assessment did go ahead successfully including with the presence of an interpreter and an appropriate adult. Additionally, on 13 June 2024 the age assessment had also gone ahead successfully, again with the same interpreter and an appropriate adult.
36. At page 13, the assessment states, under a subheading of’ Clarification of Information’:
“At the beginning of the first session the Applicant confirmed his name and his date of birth was the 5th of July 2007. The Applicant confirmed he was from Afghanistan, the Applicant advised he used the Pashto calendar. The Appellant confirmed his date of birth in accordance with the Pashto calendar as the year 1385, date 15th and the 10th month. This was translated into the Gregorian Calendar and identified as being an accurate translation.
The Applicant confirmed that he did not have any documents confirming his age and he did not have a birth certificate. The Applicant advised Afghanistan was a dangerous place and he had to flee without documentation. The Applicant also advised he has no recollection of having a birth certificate or any identification documentation, the Applicant explained this was because there was an ongoing war.
…
The Applicant was asked how he knew his date of birth and the Applicant advised his mother had told him his date of birth. The Applicant advised he had never celebrated his birthday in Afghanistan. The Applicant informed how in Afghanistan people do not celebrate birthdays. The Applicant advised he had never kept track of his age and he was not sure age is important in Afghanistan.”
The assessment noted at page 14:
“Home office paperwork states that on the Applicant’s arrival in the UK the Applicant had provided the date of birth as the 25th of May 2005, making him 18 when he arrived in the UK. During the first age assessment sessions the Applicant was asked why he had provided the date of birth 25th of May 2005 to the home office, the Applicant advised he had not been aware of the need to know his date of birth following his arrival. The Applicant advised further that when he arrived, he was stressed and confused when he was showed a document and was told ‘to point at something’. The Applicant was asked to clarify what he meant by document, the Appellant advised the document was a picture of date of births as other males present had told him to point at a date of birth. Then during the second age assessment the Applicant was asked again why he had provided the date of birth 25th of May 2005 to the home office, the Applicant advised another Afghanistan male had written it down for him. This account is inconsistent and is not credible.”
37. There is a subheading of ‘Physical Appearance and Demeanour’ and that states that the Applicant presented as polite and well-mannered in age-appropriate clothing; he was also well groomed. He is described as five foot eleven inches in height and of medium build and that he had “a full visible stubble, and a clean complexion”. It was also said:
“The Applicant’s skin did not appear youthful. The Applicant has established lines within features of his face that are common with maturity. The Applicant had bagginess in the upper and lower eye lined and bags. The Applicant’s face also features established lines each side of his eyes, the nose to the corners of the mouth. The Applicant also has a protruding Adam’s apple and an established line on his neck that run from left to right. The Applicant’s facial structure appears fully developed. These features are consistent with a person who has exceed maturity, and more common with an adult and less likely features of a child under the age of eighteen years. However, it is acknowledged that the Applicant’s life in Afghanistan and journey to the UK could have had an impact on his physical development.
…
The Applicant was asked to think if he can work out the age he may have been, if he knows how old he is now, the Applicant advised he could not. The Applicant’s physical appearance and demeanour does not appear consistent with a person who has only recently commenced puberty.”
38. In terms of his family composition and social history, the Applicant described his house as being similar to a mud house,
“The Applicant advised that the house was distant from other homes, the house had a wall surrounding it. The Applicant advised there was lots of land, however, then added that they did not have a lot of land where they would grow hay for their cow. The Applicant advised his family were poor, however, his father would always bring food home.”
The report states that:
“The Applicant was being vague about his responses regarding his family life, his parents, siblings and extend family. It is not credible that the Applicant reported he resided with the parents and siblings but did not know basic information regarding his family including how old they were or whether his oldest brother works for the police given the risks surrounding this.”
39. There is a subheading of ‘Education, Training and Employment’ where it states that the Applicant said, he had never attended any formal school as there was no school in his area due to it being blown up in the war. He said he has no formal qualifications but he had learnt to write and read in Afghan Pashto.
40. There is a subheading of the ‘Applicant’s journey to the UK’, where the Applicant said he had fled Afghanistan because of his father having issues with the Taliban connected to his father’s role as a police officer. There is a description of a journey which took some time to be measured in the high months or early years. Through, for example, Iran, Greece, Serbia, France, amongst other places. I interpolate here, to say that the Applicant had contended that he had had difficulties in Greece with some physical abuse from persons representing the authorities and I have been provided with some background material from Human Rights Watch, which confirmed that there have been such instances against other similar person to this Applicant. It appears thought that such abuse was to a relatively small number of persons, compared to the number of people who cross the border. Nonetheless, I record that there have been reports of incidents of representatives of the enforcement authorities physically abusing those who appear to be asylum seekers or migrants in Greece.
41. Returning to the Local Authority’s age assessment, there is a subheading of ‘Independence and Self Care Skills’. This includes reference to the Applicant’s health, where he states that he is in good health, that he had been physically assaulted in Greece and at that time he had not sought medical treatment. He also advised that he had been contact with his parents, but that recently he had lost contact with them after his mobile telephone had broken and that he has obtained now a new mobile telephone. Information was taken from other sources as well, which suggested that the Applicant presented as younger than 18 years of age.
42. Pages 29 to 32 of the report then come to the crucial analysis of the information. It states in part as follows:
“Whilst the Applicant exhibits many behaviours and traits that suggest he might be under 18, there are also several factors that could support the argument that he is an adult, particularly considering the variability in maturity levels and the effects of trauma on behaviour and emotional expression.
Furthermore, the information shared by the Applicant’s placement, states observation that the Applicant faces difficulty with understanding, processing information and retaining information within his placement setting. There has been concerns raised regarding the Applicant’s understanding of the purpose of the age assessment. The Applicant’s placement are concerned that that the Applicant might be facing some underlying learning difficulties that are hindering his comprehension abilities. The Applicant had an appropriate adult and face-to-face interpreter present during the process of the age assessment, there had been no concerns noted regarding the Applicant’s lack of understanding. The age assessment social workers have explained the purpose of the age assessment repeatedly and provide opportunities to the Applicant to raise anything he was unclear about and the Applicant had not raised anything. The assessors observed that the Applicant was able to respond to questions asked of him demonstrating an understanding of the questions posed to him. The information shared by the Applicant’s placement highlights the Applicant may have a level of learning needs whilst recognising the effects of trauma such as development delays. This, however, does not evidence that the Applicant is below the age of 18.
In summary, the Applicant’s assessment presents inconsistencies and gaps in information, suggesting that the Applicant is providing limited information in order not to allow for further exploration leading to determine his age.
Conclusion
In conclusion of this age assessment, it is the assessors view that the Applicant is older than 18 years old and we would estimate that his age is between 23-25 years old with date of birth of 05-Jan-2001 being more appropriate.”
43. As I say the heading of that report has a date of 2 July 2024. It has two signatures at the end of it, one from Mr Ireland and the other from Ms Kearns, but no date. I shall return to the dates later in this judgment.
The Applicant’s Evidence
44. I heard oral evidence from the Applicant and he had adopted his two witness statements as part of his evidence-in-chief. Those witness statements appear in the bundle at pages 160 to 166 and 167 to 168.
45. A summary of the Applicant’s witness statements is that he said that he grew up in certain area in Afghanistan, which I am not going to identify for anonymity purposes but that he had an older brother and three younger brothers whereby they all lived and grew up together. He explained that they did not celebrate birthdays because life in his village was not culturally the same as it is here in the UK. He explained he did not go to school because there was no school nearby. He explained his journey from Afghanistan to the UK, including the countries which he states that he travelled through.
46. Insofar as the actual arrival itself is concerned, he had arrived in the UK by boat, that ‘the police had stopped the boat in the middle of the sea as they were crossing’ and that they then stopped at the shore. The Applicant says, at paragraphs 15 and 16:
“15 When we landed, it was a stressful time, I did not know much English, and I was very tired and hungry. At this point I had not eaten in over 2 days, and I felt desperate, I just wanted to be taken away to somewhere safe. I did not know what my date of birth was at this stage. It was only later, after I spoke with my mother over the phone that she told me. I also did not know the importance of my date of birth at this stage and didn’t understand that depending on my age I would get different support.
16. When the officials who picked me up came to me to talk, they had some papers and asked me to point at them. I think this was dates of birth on the papers. I didn’t really understand what they were asking but pointed at one, even though I did not know what I was pointing to. On the other side of the table, they talked about dates of birth, and other things which I did not understand. There was no interpreter present at this point.”
At paragraph 19, in terms of the age assessment, he says that during the age assessment he did not feel happy and was stressed but that he was mentally healthy. He said he was physically well but he did have an ear infection at the time, for which he was taking treatment. He said this ear infection impacted his ability to hear properly and to understand properly and he says he told the age assessors about it but that no accommodation for that was made. He says also that during one of the sessions, of which he said there were three, he thinks it was the last session he fell unconscious and then he was taken back to the hotel by ambulance. He says at paragraph 22 that:
“22. At the last feedback session, when they were talking to me about my answers and the results, there was no appropriate adult present. I do not know why this was. I do not believe that I was given an opportunity to respond to any points that were brought up or clarify on any of my answers, and I do not remember a list of point that were significant to my age assessment being put to me. This feedback session was also held at the time when there were riots in the city, and this was a very stressful situation for me to deal with.”
47. The Applicant’s second witness statement seeks to clarify some information which relates to contact with the Applicant’s family and whether the contact was lost during the journey to Iran from Afghanistan, whereas the Applicant says that in fact he stayed with his family in Iran for around a year, i.e. when they had all fled Afghanistan.
48. During his oral evidence, the Applicant was cross-examined. Understandably Mr Parkhill had a very large number of questions and so the cross examination was at some length. Mr Parkhill explored various topic in a way in which was appropriate in view of the Appellant’s vulnerability which had been highlighted at the outset and which Mr Parkhill had agreed was the position.
49. It is necessary to refer to some of the Applicant’s oral evidence but of course I do not refer to it all. There are three features in particular which featured heavily in the evidence and in the pleadings.
50. First is the topic of how it is that the Applicant came to know his date of birth and this was against a background of the Applicant himself being virtually illiterate and his mother having no education. Yet, during a telephone conversation, the Applicant’s mother was able to inform him of his date of birth, albeit in the Afghan/Pashto calendar. Mr Parkhill carefully but skilfully cross-examined on this aspect.
51. The replies from the Applicant really come to this. Firstly, he says that there were many others that he has encountered here in the UK, such as at different placements. He told me that they had “…all said I looked young and younger than 18.”
52. Secondly, insofar as the conversation the Applicant had with his mother, he said at paragraph 5, page 161 of the bundle he could not remember precisely when he had the claimed telephone call with his mother but it was shortly after he had been put in a hotel placement in St Helens. The Applicant confirmed that he had told Ashley Barrow, a social worker, and to whose evidence I shall return, about his date of birth. The Applicant said he could not remember the names of the people who had said at the hotel that they thought he was under 18. He said it was ‘lots of people’, and not just one person. He was pressed on why he had not said that within his witness statement. He was also pressed on having confirmed that his witness statement was accurate, yet there was this omission in respect of this matter. The Applicant said that the events were a long time ago and, “I forgot things” and that “I had stress”. He said he had not been able to telephone his mother previously because his mobile telephone had not been working, referring there to his WhatsApp facility.
53. The Applicant said that the first time somebody had said to him he looked under 18 was when he had been taken to a hotel here in the UK. He said that ‘they were pointing out I was the smallest’. It was clarified via the interpreter ‘smallest’ here meant ‘youngest’.
54. The Applicant agreed with Mr Parkhill with the dates provided for the different combination of stays between St Helens and Warrington.
55. The Applicant was asked to deal with the written evidence of his friend, Mr Awais Khan. His statement appears at page 235 in the bundle and he had said at paragraph 5 of his statement as follows, “I first met EXJ around late 2023, when he joined me and a group of my friends while we were playing cricket in my local park”. It was put to the Applicant that this was inconsistent with the Applicant claiming that he spoke to his mother between the dates of 27 March 2024 and 9 April 2024. Put another way, it was being put to the Applicant that it could not be that Mr Awais Khan and Applicant about the Applicant’s date of birth in late 2023, because the Applicant was only told his date of birth by his mother in March or April 2024. The Applicant insisted that his dates were correct and that his friend’s dates were mistaken, including in relation to the different towns. Namely whether the conversations were in Wigan. The Applicant insisted that ‘the college and the park’ conversations had taken place in 2024.
56. The Applicant was also pressed on whether or not he had discussed ages with his siblings. The Applicant said he had not, that he would not ask anybody about their dates of birth and they would not ask him. He said that dates of birth were just not important to him when he was in Afghanistan. The Applicant was pressed why he would engage in a conversation with Mr Awais Khan about age. It was put to him that it just did not tie in with the background and the way in which the Applicant claimed to have been raised and to be unconcerned about dates of birth.
57. The Applicant said, when referring to the UK, “But here when you meet anyone, they ask what is your name and what is your age and that is what I told them”.
58. Later in his evidence, as for whether or not the Applicant had volunteered this information to his friend Mr Khan, the Applicant said “I was asked what is your name and I said this one. He asked the age and I said this one. He asked how old you and I are said I was 17.”
59. The Applicant was asked how it is that his mother was able to provide him with a date of birth in effect, how is it that she would know this date when dates of birth just did not, on his case, appear to be something that was necessary or relevant in Afghanistan. The Applicant, with a shrug of the shoulders, said “My mother gave birth to me and I respect her and it’s whatever she said and I trust her”.
60. The Applicant confirmed he had not provided any documents with his date of birth because there were none and he confirmed that he did not know whether his mother had seen any documents with his date of birth, but he had not asked that of her and she had not told him that there were any documents. He did not recall whether there were any calendars within his home in Afghanistan. He had not been to school, he was not aware of calendars and he was not sure if his mother could read a calendar either.
61. It was put to the Applicant that he had not mentioned to the age assessors that he had any problems with his ear and Mr Parkhill took the Applicant to pages 570 and 571 in the bundle. That records the following within a great deal of disclosure, which has been provided by both St Helens Council and by the Secretary of State for the Home Department. But Mr Parkhill was able to find within that, it is difficult to work out precisely which dates have been referred to because some appear chronological and then in reverse chronological order, but ultimately the dates show a recording for Thursday 11 July 2024, which says in part:
“[The Applicant] told SW [social worker] he has been having liquid in his ear and it is painful. The Applicant said he went to the GP and was given medication. It was explored with [the Applicant] and it was determined it was anti-biotics and it was being taken wrong. The Applicant agreed to attend GP appointment on the 19th of July to seek advice from his GP.”
62. It was pointed out that there was a recording of an entry in relation to an ear issue but that this could not have been during the dates of the age assessment (being 7 and 13 June) because the entry in these documents is for 11 July. The Applicant remained adamant that this was something that the assessors were aware of. He said ultimately, he could not recall, maybe he was taken to the GP on 19 July, but he could not remember the precise date.
63. The Applicant was asked about his arrival to the UK. He provided a graphic description of the hours before his arrival and his time on the small boat. Because of the quasi-inquisitorial nature of these proceedings, I had also asked the Applicant to describe what he says occurred on that journey to the UK.
64. Initially in response to Mr Parker’s question about the UK, when he encountered the authorities, the Applicant said, “At that time I was not aware of that much. I was 99% dead and I was at the sea and I had not eaten for 2 days”. He explained to me that he had been at sea for some period of time, “for some 6, 7 or 8 hours”. He said the journey had started at night in the dark and then they had arrived in the morning. When they entered the UK waters, the ‘police boat had come and had taken them’. Once they arrived at the shore, all of the occupants of the boat had been lined up and they had crossed a bridge. He described it as an iron bridge, which I think later the interpreter said was a metal bridge. The Applicant said they were going through one by one. He said they were given some paper. He did not know what it was but everyone was putting their fingers on the paper and then they were able to proceed. He had said he did not know what was on the paper.
65. He said later there was a big tent, that they remained in that big tent for 24 hours. He had spoken to an Immigration Officer and then he was taken to the hotel. He was asked about the crossing of the metal bridge. He said once had had got beyond the initial stage then they were given a change of clothes. He said he had had a headache, he did not know what he was saying. The Applicant said to the people asking him questions, ‘to finish it was soon as possible because he had not eaten for 2 days and had been in the jungle’. He had been on the small boat all night. He said that there was an interpreter over a mobile telephone at that second part of the encounter, which I understood him to mean in the “big tent”. He said he could not remember exactly what he had discussed with the interpreter on the telephone because his mental health was not good but he could see others coming and going and he wanted his to finish as soon as possible as well.
66. I have summarised a lot of the Applicant’s evidence, which I think has been necessary to do in this case.
The Applicant’s Witnesses’ Evidence
67. I now turn briefly to the evidence of Mr Awais Khan and to whom I referred earlier. His witness statement appears in the bundle at page 234 onwards. In his oral evidence, Mr Khan, from the outset, corrected paragraph 5 of his witness statement. He said there was an error, where it referred to the year 2023, because it ought to have read 2024. He said it was in 2024 when the Applicant had joined him and a group of friends to play cricket in the local park. He said he could see that his witness statement referred to 2023, ‘but that the interpreter writing the witness statement either did not get it or did not understand it’. Not surprisingly, the witness was asked to deal with this change in the evidence, especially since it appeared to be an important part of the timeline that the Applicant appeared to have provided. The line of cross examination was how could it be that this witness would have been told the Applicant’s date of birth in late 2023 if the Applicant only learnt of it himself in March or April 2024?
68. Mr Khan said that his statement was initially going to be taken over a Microsoft Teams App, but there was an issue and then later he was contacted over the telephone for the witness statement, but the telephone connection reception was poor. He said the voice was “cutting” and he could not hear clearly and he did not hear what was being said.
69. I have to say I initially found Mr Khan’s evidence unhelpful insofar as his explanation for the error was concerned and having reminded myself these are inquisitorial proceedings, not purely adversarial I had asked several questions of Mr Khan in clarification of this aspect of his evidence.
70. I sought to understand when it was that Mr Khan realised that there was an error at paragraph 5 of his witness statement. I had concluded at that stage that there must have been the usual professional discussion between a witness and a lawyer, in respect of whether or not all parts of the witness statement were correct. Ms Ferrin was later able to clarify that in fact no such discussion had not taken place between her and the witness, which of course I accept.
71. Nonetheless, there is a very unsatisfactory position which arises in respect of Mr Khan’s written statement.
72. There are two matters which arise. Firstly, when one looks at page 236 of the bundle, the witness has signed the witness statement on 17 February 2025, whereas the interpreter (noting that no name for the interpreter has been provided) has signed it as ‘13 February 2025’. Clearly it is impossible for the interpreter to have been translating 4 days prior to the witness having signed the statement.
73. Mr Parkhill correctly points out that is not the end of the deficiencies in respect of the interpreting. Mr Parkhill submits that there has been no compliance with CPR 32.8 or with Practice Direction 32 in particular paragraphs 18.1 and 23.2 in respect of the translations and the original language required to be used.
74. Secondly, the Applicant’s witness statement shows errors on the signature page. It remains wholly unclear if the witness statement was initially in the Applicant’s own language. One can see the name of an interpreter, one Mr Yoldash, who signed the statement on 21 September 2024, but curiously the Applicant appears to have written the date 12 November 2024 when he signed his witness statement. Whilst I accept that it is possible the Applicant simply got the date wrong, but again it leaves an unsatisfactory position. The duty to ensure that the witness statements were correctly translated falls on the Applicant’s solicitors and in this case, they appear not to have complied with that important duty.
Requirements for Witness Statements
75. Witness statements are a crucial part of the proceedings and will stand as that witness’s evidence in chief. There are essential procedural requirements that the parties must comply with.
76. Where a witness’s first language is not English and an interpreter is used then it is essential that the witness statement is correctly interpreted to the witness. The witness statement must be signed by the witness. Where an interpreter is used then that interpreter must also sign the witness statement to attest that they translated the witness statement correctly to the witness.
77. The CPR sets out various requirements for witness statements and translations, and the Senior President of Tribunals’ “Practice Direction of the Immigration and Asylum Chamber for the First-tier Tribunal” dated 1 November 2024 set out the requirements succinctly. The following part of the 2024 Practice Direction must be followed in the Upper Tribunal (IAC) in respect of witness statements in both statutory appeals and judicial review proceedings:
“8.5. The witness statement must, if practicable, be in the intended witness’s own words. The statement need not be in a language that the witness understands. If drafted in English and this is a language not understood by the witness, it must include a signed and dated verification by both the witness and the person who interpreted it that the statement has been read back to the witness in a language they understand and that it accurately reflects their evidence.
…
8.10. A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence. It must include a statement by the intended witness in their own language that they believe the facts in it are true.
8.11. To verify a witness statement the statement of truth is as follows:
“I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
8.12. If the witness statement is in English, and the witness does not understand English, the witness and interpreter must endorse the following attestations:
“This statement has been read to me in [LANGUAGE], a language I understand, by [NAME OF INTERPRETER].”
“I, [NAME OF INTERPRETER], read this statement to [NAME OF WITNESS] faithfully interpreting it into [LANGUAGE].”
78. Compliance with these requirements is essential so as to avoid errors with interpreting, but also to avoid witnesses at the hearing stating that what is set out in their witness statement is not what they had said. Non compliance will lead to adverse inferences being drawn and/or costs consequences.
79. It can also be far too easy for witnesses who have not provided their evidence in English to come along to a Tribunal or Court and to say, “That was not what I had said, the interpreter must have got it wrong”. It puts the Tribunal or Court in a very difficult position. It also puts the parties in a difficult position because they will have prepared their case on the basis of the information which has been put forward within that written statement.
80. I return to the evidence. Ms Olga Nesmejanowa provided a witness statement which appears at pages 248 to 250. She also provided oral evidence. She did so by way of remote means. She works in the North West of England. This is case is being heard in London and so her evidence via remote means was appropriate.
81. Ms Olga Nesmejanowa is a senior support worker at Banner House, and she provides support for young people in semi-independent living accommodation and she informs me in her witness statement that she holds a level 4 NVQ qualification and dealing with children, young people. She is a family practitioner in children’s residential care and she has been doing that for two years, primarily supporting young people aged 16 to 18 years of age. She told me that she had had regular contact with the Applicant, typically seeing him and speaking to him 2 or 3 times per week. She said that based on her professional experience, the Applicant displayed interests typical for young people his age, “However he also engaged in activities that some of his peers may find too simple or lacking in challenge, such as basic drawing, playing with a remote control helicopter and watching cartoons designed for younger children.” She also in her witness statement,
“We also recognise that he required repetition of the information over a period of time, for example when returning from the age assessment he always asked what this meeting was for and what is an age assessment. I therefore have some doubts that he might not have fully understood the age assessment process. When we asked him if he understand the information, for example, how to use a washing machine, he always answered yes. However, if he started to ask some questions around the topic, he struggled to answer and required basic clarification. I have also some concerns that the Applicant finds it easier to agree and to answer yes if he struggles to speak around certain topics. This is especially true if they are related to his traumatic experience.”
During her oral evidence Ms Olga Nesmejanowa agreed with Mr Parkhill that some of her interactions with the Applicant would have been limited in time and duration. She agreed that ultimately, some of the aspects to which she was referring would not actually be typical, even for an 18 year old, such as playing with a toy helicopter and the like.
82. I refer now to the evidence of Ms Carly Quinn. She had provided a witness statement dated 7 February 2025 at pages 178 to 185 of the bundle. There is also the linked evidence of Ms Ashley Barrow at pages 237 to 247. She had provided a witness statement dated 14 February 2025 and at page 592 Ms Quinn and Ms Barrow provided what is headed as an independent report dated 4 September 2024.
Requirements for Expert Evidence
83. It is correct to observe that neither of these witnesses, whether within their report or within their witness statements stated that that they had complied with the duties placed on experts. Whether that duty derives from the Tribunal Procedure (Upper Tribunal) Procedure Rules 2008 or from Part 25 of the Family Procedure Rules, or Part 35 of the Civil Procedure Rules. I had thought it necessary to explore these duties with Ms Quinn towards the start of her oral evidence. I also queried the introductory part of Ms Quinn’s and Ms Barrow’s witness statements which said as follows, “I am a dedicated, compassionate, and highly effective Social Worker”. This introduction did not appear to be indicative of independent or dispassionate evidence.
84. These two aspects of the evidence troubled me because although I can take all manner of evidence into account, it is right to observe that judges will be inclined to be more willing to accept the evidence of professional witnesses because professional witnesses bring to cases their experiences, their knowledge and their expertise. But that privilege which professional witnesses enjoy, comes with a responsibility to ensure that what they have to say to the tribunal or court, whether in writing or orally, is accurate and complete. There have been far too many instances in the past where experts have got things wrong and which has then led to very serious consequences for the litigants involved. Examples are rife in the criminal law, family law and civil law jurisdictions. It is essential that there must be compliance with the duties on experts. Experts must also make clear in writing that they have complied with their duties as experts and that, irrespective of from whom the instructions emanate, that they have provided their independent, professional and complete view.
85. I do not think that in this case there was anything deliberate on the part of Ms Quinn or Ms Barrow. I do not think that they sought to mislead me or the Respondent, but I think that there was a naivety in terms of their approach to the presentation of their evidence. It appears to me that the reason that occurred in this case was because they were the professionals who had made the initial referral to the Children’s Services within St Helens Council in the first place and they felt somewhat obliged to raise with St Helens that they thought there were deficiencies in Local Authority’s assessment of the Applicant’s age. In my judgment what appears to have occurred is an overzealous attempt to seek to rectify what was seen by Ms Quinn and Ms Barrow as deficiencies within the Respondent’s assessment of age and a blurring of what their actual function was.
86. I conclude that although their report says it is an ‘independent report’ and it is in the sense that it is independent of the local authority, it was not an independent report as understood in the tribunals or courts. Nor was their report an ‘expert report’. It was not commissioned by both parties jointly either.
87. The Senior President of Tribunals’ Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal dated 18 December 2018 is of significant importance and must be followed by experts and those who instruct experts in this jurisdiction. It aligns with the procedure followed by the courts in criminal law, civil law and family law jurisdictions. A failure to follow the Practice Direction is likely to mean that the expert evidence is not admitted in evidence or lead to no weight or only very limited weight being attached to such expert evidence. A failure to follow the Practice Direction is also likely lead to admonishment of the expert within the published decision of the Upper Tribunal.
88. The Senior President of the Tribunals’ Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal, dated 1 November 2024 is in similar terms to the 2018 Practice Directions
89. Paragraph 10 of the 2018 Practice Direction states,
“10. Expert evidence
10.1. A party who instructs an expert must provide clear and precise instructions to the expert, together with all relevant information concerning the nature of the appellant’s case, including the appellant’s immigration history, the reasons why the appellant’s claim or application has been refused by the respondent and copies of any relevant previous reports prepared in respect of the appellant.
10.2. It is the duty of an expert to help the Tribunal on matters within the expert’s own expertise. This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.
10.3. Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
10.4. An expert should assist the Tribunal by providing objective, unbiased opinion on matters within his or her expertise, and should not assume the role of an advocate. 10.5. An expert should consider all material facts, including those which might detract from his or her opinion.
10.6. An expert should make it clear: (a) when a question or issue falls outside his or her expertise; and (b) when the expert is not able to reach a definite opinion, for example because of insufficient information.
10.7. If, after producing a report, an expert changes his or her view on any material matter, that change of view should be communicated to the parties without delay, and when appropriate to the Tribunal.
10.8. An expert’s report should be addressed to the Tribunal and not to the party from whom the expert has received instructions.
10.9. An expert’s report must:
(a) give details of the expert’s qualifications;
(b) give details of any literature or other material which the expert has relied on in making the report;
(c) contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based;
(d) make clear which of the facts stated in the report are within the expert’s own knowledge;
(e) say who carried out any examination, measurement or other procedure which the expert has used for the report, give the qualifications of that person, and say whether or not the procedure has been carried out under the expert’s supervision;
(f) where there is a range of opinion on the matters dealt with in the report:
(i) summarise the range of opinion, so far as reasonably practicable, and
(ii) give reasons for the expert’s own opinion;
(g) contain a summary of the conclusions reached;
(h) if the expert is not able to give an opinion without qualification, state the qualification; and
(i) contain a statement that the expert understands his or her duty to the Tribunal, and has complied and will continue to comply with that duty.
10.10. An expert’s report must be verified by a Statement of Truth as well as containing the statements required in paragraph 10.9(h) and (i).
10.11. The form of the Statement of Truth is as follows:
“I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion”.
10.12. The instructions referred to in paragraph 10.9(c) are not protected by privilege but cross-examination of the expert on the contents of the instructions will not be allowed unless the Tribunal permits it (or unless the party who gave the instructions consents to it). Before it gives permission, the Tribunal must be satisfied that there are reasonable grounds to consider that the statement in the report or the substance of the instructions is inaccurate or incomplete. If the Tribunal is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice to do so.”
90. Statements of truth must be signed correctly and accurately. In YSA v Associated Newspapers Ltd [2023] UKUT 75 (IAC), the Upper Tribunal made clear that the Upper Tribunal has the contempt powers of the High Court derived from s.25 of the Tribunals, Courts and Enforcement Act 2007.
91. Mr Parkhill also established during the evidence that there is a possibility that there was an email from the Applicant’s solicitors to Ms Quinn/Ms Barrow seeking a report but that if that e-mail did exist, it was not made available for the Tribunal or the Respondent to see. In fairness to Ms Quinn, she said could not recall whether the request to provide a report was made by telephone or in writing. Ms Barrow was a little bit firmer in her oral evidence that she thought ‘there must have been an email request’. Nonetheless in any event, no such email has been provided to me. Ordinarily, the Court or the Tribunal would see such a letter of instruction and in the nature of these proceedings which requires full and frank disclosure. Mr Parkhill says the weight that can be attached to the report, if any, ought to reflect that omission.
92. In summary, what Ms Quinn and Ms Barrow have said in their oral and written evidence is that they work for an organisation called ‘The Vision’. They have expertise in relation to Looked After Children and in respect of those who might be Asylum Seeking Children or children of migrants. They offer a therapeutic program and they say they have worked extensively with children and young people with over a decade of experience each.
93. Ms Quinn and Barrow set out within their witness statements and reports a sub- heading of ‘Topic of Concerns’ in relation to the age assessment which had been undertaken of the Applicant by the local authority. They state things such as; there was a failure by the local authority to ask them for their views in respect of the Applicant’s age assessment.
94. Having said what I have about Ms Quinn’s and Ms Barrow’s evidence, Mr Parkhill very fairly observed that despite the concerns in relation to their purported expertise and/or independence, that I could have regard to those two witness’s factual observations of the Applicant. Mr Parkhill said that I should treat with caution and I should put to on side Ms Quinn’s and Ms Barrow’s criticisms of the local authority’s age assessments and their analysis of it. Mr Parkhill said criticism of the local authority’s assessment was for counsel to make, rather than by these two social workers. Mr Parkhill’s overall theme during cross-examination was that these two social workers were providing, in effect, advocacy on behalf of the Applicant.
95. Therefore, whilst I reject Ms Quinn’s and Ms Barrow’s analysis of the local authority’s age assessment, I do take into account what has been said by these two witnesses in respect of their observations of the Applicant.
96. Specifically, I take into account that Ms Quinn and Ms Barrow said that the Applicant had been referred to them by the local authority on 1 March 2024. They explained that the Applicant had been attending the programme with them at ‘The Vision’ on a weekly basis since then. It was in April 2024 that the Applicant had said that he was a minor and a referral was then made to the social service at St Helens Borough Council. The witness say that they had face to face contact with the Applicant on a weekly basis and that text and telephone contact had increased the following the conclusion of the age assessment.
97. Ms Quinn and Ms Barrow said that the Applicant had disclosed his age within a casual conversation and that he did not appear to recognise the significance of his disclosure. They said that the Applicant had been playing in a park during a session when he made the disclosure. This was different, I was told, compared with other cases in which individuals who were not being honest about their age, provided a confident delivery about their disclosed age to a desired audience with an understanding of the impact of their disclosure. It was stressed that this was not the case with this Applicant.
98. The witness, Ms Quinn says, at paragraph 12, it is her assessment that the Applicant’s presentation was in line with that of an adolescent and that the Applicant often socialised inside and outside of his group with peers around 16 to 17 years of age. It was said the Applicant was very playful in his nature with his peers and in some respects, presented as younger than his peers developmentally. It was said that this could be due to adverse childhood experiences that he has been exposed to. Examples were given of the Applicant being taken to bowling with other young people. Paragraph 15 of the witness statement referred to the Applicant being observed watching childlike videos on his mobile telephone and at paragraph 16 that he did not engage in a lot of conversation with older males within the group.
99. Ultimately Ms Quinn said at paragraph 28:
“My view is that the Applicant does not present the age that the assessing social workers have assessed him as. My view is that the Applicant is the age that he is claiming. It is vital to recognise that there can always be a margin of error when assessing age, however I would not be confident in concluding that the Applicant is an adult at the time of the assessment.”
100. Ms Barrow, in her witness statement, refers at paragraph 6 to the Applicant being in the ‘Spark Programme’ which was something that The Vision offer because the Applicant had been struggling with his emotional wellbeing. The Applicant had been living in a shared house in Warrington but, “The house had been set on fire (as a result of another male living at the property purposefully setting it alight). The Applicant was, understandably, shaken by this event” and that is how he came to be attending The Vision group on 1 March 2024 and that was how he came to be known to these two witnesses.
101. Under a section referred to as ‘Observations’ at paragraph 11 Ms Barrow referred to April 2024 when the Applicant was at the park during one of the sessions to enable there to be a build-up confidence in the community. Ms Barrow observed that having arrived at the park, the Applicant squealed with delight when he saw the swinging seesaw, that he immediately ran over to it to jump on it to play and it was at that time that he mentioned in passing that he was not 18 years of age and it was therefore that the witnesses then refereed the Applicant to the local authority. As I understood it, because they were concerned about this age.
102. Ms Barrow said in her witness statement that the Applicant made several friends aged 16 to 18 with whom he had become close and with whom he remains close even now. Those were seen as the supportive and positive friendships building his confidence and self-esteem.
103. At paragraph 20 Ms Barrow observed that the Applicant appeared to be significantly younger than others in the group although there was a wide range in the group. Both Ms Barrow and Ms Quinn also observed and noticed that the Applicant consistently gravitated towards the younger males, aged 16 to 19 years old. They also observed that these young people that the Applicant spent time with also shared similar interests with, such as TikTok, watching children’s cartoons in English and playing Pashto music. Those young males that the Applicant spent time with outside of the group are now age between 17 and 18 years of age. Ms Barrow observed at paragraph 24 of her witness statement that the messages that she gets from the Applicant are gifs or memes or child-like jokes.
104. Ms Barrow and Ms Quinn said at paragraph 26 in relation to the Applicant’s physical appearance,
“We have seen the Applicant when he is full of energy and keen to engage and equally, when he has not slept and suffering with his mental health. But we have never seen him to have established lines or wrinkles around the eyes. He is fully developed, as would be expected of a 16 – 19-year-old male. There have been occasions when the Applicant has had dark circles under his eyes which is inevitably natural given the level of trauma and loss he has experienced in his life combined with the fear and worry that he has experienced since living in the UK.”
105. In terms of his dress sense, it is said that it is very young and more fashionable than older males, At paragraph 28, the witnesses said, “We have noticed that the Applicant has few life skills and is still very much learning in this regard.”
106. The witnesses also said that the Applicant seemed to benefit from the parent role model in his life and that he did not present as having the social emotional skills that an adult might have. There is also a photograph attached in colour of the Applicant within his accommodation in the kitchen area, where he is wearing a dark zipped up jacket. Over the page, he is depicted in casual wear with jeans, a t-shirt and a gilet, and he appears to be in the park on a swing.
107. These two witnesses were considerably, but understandably, pressed in their oral evidence about their conclusions. It was put to them that even if the Applicant had been observed doing things such as playing with a child’s toy (the toy helicopter) or watching children’s cartoons, that this was not indicative of an 18 year old. It was put to them that it did not really assist with the assessment of the Applicant’s age. Indeed, I had asked that perhaps the Applicant had simply never come across these sorts of things when he was living in his part of Afghanistan and that cartoons or a toy helicopter might well have been a novelty for him.
108. I have set out the evidence in some detail because this case requires a careful assessment of that evidence to enable me to deal with the ultimate issue in respect of the Applicant’s age.
Applicant’s contention of Procedural Errors in the Age Assessment
109. I return to the procedural matters to tie them together with the evidence. As I had said from the outset, the application for judicial review had contended that there were various errors with the Respondent’s approach. The Applicant contends that there has been procedural unfairness and that therefore the age assessment is of questionable, if any, value.
110. The Applicant’s grounds have several sub-headings in respect of the procedural unfairness ground. Firstly, the Applicant contends that there was no effective ‘minded to’ process in accordance with the decisions in Merton at paragraphs 55 to 56 and FZ at paragraphs 21 to 22. Secondly, it is contended that the ADCS guidance at pages 25 to 26 was not followed despite the decision in R (HAM), at paragraph 6 and MA & HT at paragraph 116. Further it is contended that the common law principle of fairness applied in relation to the age assessment.
111. In summary and without having to repeat the case law, I consider what the Applicant contends. He states once the local authority’s age assessors had reached their provisional conclusions, they were required to explain those provisional conclusions to the Applicant and ask that he provide any clarification or further explanation. Then the age assessor was required to re-evaluate their decision on the basis of the Applicant’s response.
112. Therefore, it is necessary to see what actually occurred in this case. In doing so, it is instructive to go back for a moment to the relevant dates. The original first assessment day was 7 June 2024 and the second day was on 13 June 2024.
113. In the local authority’s disclosure social work documents, there is reference to a disturbing event. On 31 May 2024 when the Applicant was in Section 20 Children accommodation, the out of hours social work team had been informed that the Applicant had informed them that he had been chased and threatened by a group of 20 people. The Applicant feared that he would be stabbed by this group. The contemporaneous recording of this made by the duty social work team is as follows:
“It is clear this incident was frightening and traumatic for the Applicant. The Applicant’s placement has reported seeing the Applicant upset, scared and teary. The Applicant has shared he was physically assaulted, the Appellant has shared he has not been significantly hurt following the incident and the Applicant has not been seen to having any significant injuries, however, did show a bruise on his ankle. We are worried that without a member of the public intervening, the Applicant may have become significantly injured due to a young male having a knife.
We recognise that the Applicant as an unaccompanied asylum seeking child would have already experienced significant levels of trauma, the Applicant has shared he left his home country due to not being safe. It appears the Applicant has come to the UK to seek safety, unfortunately, following this incident the Applicant may not see this as a place of safety. The Applicant has declined any emotional support at this time, however, we do feel this would be beneficial for the Applicant given the trauma he has experienced.”
114. As I say, this disturbing event occurred on 31 May 2024. There is also an entry in the social work records for 7 June 2024, which is the day of the age assessment. Worryingly, another incident took place whereby the Applicant had gone to the barbers to get his hair cut with another young person when,
“A group of lads from the travelling community who he had the incident with last week turned up to attack him”.
115. The records state that the barber let the Applicant and his friend out of the back way out of the barbers and back to the Placement and that the police had been to see the Applicant with a view, it appears, to assisting him. The social worker’s entry in the records also states:
“We are worried the Applicant has been targeted again by the young people involved in the recent incident. We are worried that there is a risk of continued harassment and abuse from the young people to the Applicant. The Applicant may become physically harmed again and this is likely causing him lots of emotional distress.”
116. The age assessment did go ahead on 7 June 2024 despite this incident on the same day. It does recognise that this was discussed with the Applicant and the Applicant was, it appears, keen to as it were, get on with it. It is not a feature of age assessments ordinarily that these sorts of things would be occurring, but it is something that I take into account. I am in no doubt that the Applicant did want to ‘get on with it’ which perhaps shows his cooperation, but nor am in any doubt that the incidents must have upset the Applicant and that he must have been frightened by being chased by such a large group of people and attacked for no apparent lawful reason.
117. At page 466 of the bundle, there is an entry in the social work records for 2 July 2024, as follows,
“Age assessment completed - outcome it has been determined the Applicant is over the age of 18. We will await legal advice prior to the Applicant being informed of the outcome.”
… “The age assessment has determined that the Applicant is over the age of 18, thus, meaning the Applicant will not continue to be supported by the LA. We will await oversight from the LA legal team to ensure that the age assessment’s findings are appropriate and Merton compliant.”
118. A feedback session was arranged for 17 July, but it was cancelled because the local authority had not been able to secure an interpreter or an appropriate adult. The rebooked session for 25 July was also cancelled. The feedback session took place on 8 August it says, “Age assessment feedback session took place without appropriate adult and teams interpreter”.
119. Rather concerning to read is that,
“Following the Applicant being informed, the Applicant presented as being highly distressed, the Applicant was seen hitting his head on the table, his body shaking and the Applicant was not responding to SWs [social workers]. We, therefore, called for an ambulance for the Applicant, in the interim.”
120. Ms Ferrin on behalf of the Applicant invites me to consider two aspects. Firstly, she asks rhetorically how could it be there was a ‘minded to’ approach if the decision is recorded as having been made on 2 July 2024, but the actual session for the feedback did not take place until over a month later on 8 August 2024? In my judgment Ms Ferrin is entirely right. The 8 August 2024 session was not used as an opportunity for any further feedback or comments from the Applicant. It was used to tell the Applicant what the local authority’s decision was. It was a final decision. It was the local authority informing the Applicant that, “We do not agree with you in respect of your claimed age”. It is abundantly clear in my judgment that there was no ‘minded to’ approach by the local authority. There was therefore procedural unfairness in respect of the age assessment.
121. Ms Ferrin also submitted that there ought to have been an appropriate adult present for the ‘feedback’ session that eventually took place on 8 August 2024. Ms Ferrin states that this was necessary because of two matters. Firstly, because that appropriate adult may have been able to assist the Applicant to articulate what he wished to say in response to the local authority’s age assessment. Secondly Ms Ferrin contends that the disturbing incident which I have referred to and recorded in the social work records at page 466 whereby the Applicant was hitting his head and being significantly affected in the way that he was, may not have occurred if there was somebody there to assist him, such as an appropriate adult.
122. Again, I have to entirely agree with Ms Ferrin that that dual purpose of having the appropriate adult would have assisted with those things. When one couples what occurred during the riots that this country saw in the summer of 2024, along with the actual incidents which are recorded of encounters with a group of 20 chasing the Applicant, in my judgment it was all the more reason where real care should have been taken for this Applicant’s welfare. Where it is said by the Respondent, in effect, that “It did not matter, because it was not an assessment session and so no appropriate adult was required”, that really misses the point. That is because procedural propriety and fairness required that there should have been an opportunity for the Applicant to respond and for his welfare there should have been an appropriate person present too.
123. The Applicant contends that the local authority’s assessment is flawed, for example, because the Applicant had a protruding Adam’s apple and the Respondent wrongly concluded that indicated that the Applicant must be an adult. I have to entirely agree with Ms Ferrin that that simply on its own, an Adam’s apple adds very little in assessing whether the Applicant was above the age of 18. Puberty obviously starts at an earlier age than 18. The Adam’s apple, which is the cartilage at the front of the throat, begins to form at an early stage. That can be at the age of 13. The Adam’s apple may be pronounced is some and not in others.
124. Might a 17 year old (as this Applicant claims he was on arrival) have an Adam’s apple? It seems obvious to me that if someone as young as 13 can have an Adam’s apple then so can a 17 year old. Obviously, it also means that those above the age of 18 will have an Adam’s apple too. The Applicant’s point is that this was something that he ought to have been given an opportunity to comment on, but instead the local authority had concluded that because the Applicant had an Adam’s apple then he must have been above the age of 18 and instead aged 23.
125. Similarly, the Applicant was not given an opportunity to comment on the age assessors’ view that he had lines on his face. I have had the opportunity to see the Applicant for myself here in this court. The Applicant has been some 2 or 3 meters away from my bench. I did not observe lines on the Applicant’s’ face. The Applicant’s argument is that he should have been given the chance to respond to the local authority’s age assessors claiming to have seen lines on his face.
126. I remind myself that Ms Quinn and Ms Barrow observed in their witness statement, at paragraph 26 page 242,
“We have never seen him to have established lines or wrinkles around his eyes”.
127. Yet this is something the age assessors say they observed. As I say, I did not see lines or wrinkles on the Applicant’s face and it is something that was relatively contemporaneously recorded by Ms Quinn and Ms Barrow as not being something that they observed either. I also remind myself that Ms Quinn and Ms Barrow had frequent and regular contact with the Applicant from March 2024 onwards and not just a ‘one off’. I accept the evidence of Ms Quinn and Ms Barrow in respect of their observation, although for the reasons I have given, I do not accept that their evidence is expert evidence.
128. There are additional submissions made on behalf of the Applicant in respect of claimed failures by the local authority to apply a ‘minded to’ approach. In my judgment, it is not necessary to consider those additional submissions because even with the matters that I have referred to so far, the local authority manifestly failed to correctly apply a ‘minded to’ approach in the assessment of age. There was therefore procedural unfairness in the local authority’s approach to the assessment of the Applicant’s age.
129. This is even before I factor in that the age assessors failed to get the views of Ms Quinn and Ms Barrow (who had both worked extensively and face-to-face with the Applicant over a number of months) or to seek to contact the Applicant’s mother for her views. I therefore conclude that there was a failure on the part of the Respondent to comply with the Tameside duty of enquiry as explained in Secretary of State for Education v Tameside MBC [1977] AC 1014.
130. I stress that ‘reasonable’ enquiry was required and that ‘reasonable’ steps to investigate were required and not the higher test that Ms Ferrin had originally contended for in her skeleton argument and in her grounds seeking judicial review.
131. Therefore, the local authority’s age assessment has not been of great assistance to me and I am not able to give it extensive weight because of the deficiencies which I have highlighted and of which, unfortunately, there are more. As Laing LJ made clear though in R (on the application of SB) and to which I referred earlier, now that the matter is before me here at the Upper Tribunal, I have to deal with the issue at hand. Namely it is for me to assess the Applicant’s age and date of birth to the balance of probabilities test.
Analysis of the Evidence
132. I return to the evidence which I summarised previously. In my judgment the Applicant came across as a witness who was seeking to assist me as best as he was able. I did not form the impression that he was trying to deliberately mislead me in any way. I conclude that the Applicant remained largely consistent with what he has said throughout in relation to his case. I remind myself that consistency of itself is not necessarily indicative of someone who is truthful, nor must I permit the Applicant’s demeanour to be given undue prominence. Having said, I did find it to be relevant that during his evidence, the Applicant presented as someone who appeared rather disinterested in the proceedings. For example, at certain parts of the hearing, the Applicant was yawning, he was stretching and I had the vantage point of being able to see him directly when he sat the back of the court when other witnesses were giving evidence. He was slouched on a chair and he even appeared at one stage to have closed his eyes and was then leaning his head on an adjacent chair on the armrest. The Applicant’s presentation was therefore somewhat curious.
133. I remind myself that the Applicant’s presentation was perhaps explicable for the simple reason that he had travelled some distance from the North West of England to attend this hearing in London. It will have been an early morning departure for him on the train to enable him to be here in London at 9.30am. I conclude though that these features, albeit initially appearing minor, are factors which add to the overall way in which the Applicant presented his evidence to me.
134. There are some aspects which do not fall neatly into one category or the other. By way of example, the Applicant watches children’s cartoons and has been playing with a toy helicopter, and with balloons. Whilst that obviously indicates the Applicant appears to be interested in things which younger children might be interested in, of itself those things are not necessarily indicative of somebody who might be aged 16/17 on arrival in the UK or aged 18 now. It could just as easily be that the Applicant has not come across such cartoons or toys before when he was in Afghanistan.
135. I must consider all matters. I conclude that taken as a whole that these matters do give me some indication as to the sorts of things that the Applicant does when he is in an environment in which he is not, as it were, being ‘watched’ by the Tribunal. I entirely accept, especially since because I think I raised this, that when the Applicant lived in Afghanistan, he may simply have had limited possibilities to have toys to play or seen toy helicopters or even perhaps to watch children’s cartoons. When I couple this with the lengthy observations of Ms Quinn and Ms Barrow, including that the Applicant tends to gravitate towards younger people in their mid to late teens but is uncomfortable with people in their 20s, then this too supports a finding that the Applicant is the age that he claims to be.
136. I take into account the evidence of Ms Olga Nesma Nesmejanowa who has seen the Applicant very frequently and over a long period of time at his living accommodation. Again, the case law makes clear that that such observational evidence is of assistance to me. Ms Olga Nesma Nesmejanowa was a witness who was clearly experienced in dealing with young people. I will not refer to all other evidence again, but I accept her evidence and there is no reason to not accept her evidence. It was first hand observational evidence.
137. I turn to the evidence of the Applicant’s friend Mr Khan. I have not been impressed by Mr Khan’s unclear responses and his failure to provide direct answers to straightforward questions. but at the very least, Mr Khan as a 19 year old is a very close friend of this Applicant and therefore of a similar age to that the Applicant claims to be. When I add in that Ms Quinn and Ms Barrow said that this Applicant gravitates towards other younger people in their mid to late teens then this appears with Mr Khan’s age and background being similar to the Applicant’s.
138. Age assessment judicial reviews raise issues of precedent fact and can be notoriously difficult because there are no documents available to assist, such as a birth certificate or identity card (called a Tazkira in Afghanistan). I have to ask myself whether it is likely that this Applicant, who hails from a village in an isolated area in Afghanistan, would have had a birth certificate?
139. In my judgment, on balance, the Applicant would not have had a birth certificate for precisely the reason that he hails from an isolated village and there was no system of registering births which took place in villages and thereby there was no provision of written birth certificates in such a village.
140. In contrast, there is clear evidence that hospital births in Afghanistan do record dates of birth. Those born outside of hospitals, for example, in their village would not have a birth certificate. I also accept the evidence that it is likely that the Applicant would not have been concerned about his date of birth because it was not something that was relevant for his family because they do not celebrate birthdays. Nor was the Applicant’s date of birth required for any official purposes in the village, where he had lived. In my judgment that too is something I can accept when considering the very different culture which applies to this Applicant’s community in Afghanistan and from where his community hail, compared with those from bigger towns and cities where paperwork and documents, such as birth certificates were more routine. Those in bigger towns and cities required birth certificates for example, to register for and then to access schools or medical treatment. This Applicant did not attend school and only a madrassa.
141. I have reflected on my concerns about Mr Khan’s evidence. On balance I conclude that is not unusual for young people to enquire about the age of the other young person that they encounter during meetings. One just needs to think about school or college that people might attend. It is quite normal for the conversation to be, What is your name? Which year are you in? How old are you? I am not sure that would be out of place anywhere here in the United Kingdom and nor therefore would it have been out of place in the Applicant’s placement. Might it have been out of place for asylum seekers who now have were in the UK? Might they ask each other the same sort of questions as young people do at school, college or at social venues? In my judgment that is indeed a way in which young people ‘assess each other’. Therefore, although I have expressed some concern about parts of Mr Khan’s evidence, when considering the totality of his evidence, I have been able to derive some assistance from it.
142. I also take into account the rather casual way in which the Applicant in this case informed Ms Quinn and Ms Barrow of his age. I conclude that this is of relevance because the Tribunal is well used to hearing cases in which matters are clearly rehearsed. Here though the Applicant’s causal mention of his age was indicative of the opposite. He merely referred to his age during an unimportant play in the park when no one would usually have taken any notice. It was only because Ms Quinn and Ms Barrow were present and because they had their own views before then about the Applicant’s age that this became relevant.
143. I have had at the forefront of my mind that when the Applicant arrived in the UK, he told the Immigration Officers that he was over 18. I will not rehearse the evidence again, but I have to take into account the backdrop to that encounter with the Immigration Officers. The journey which the Applicant undertook, which I do not think was in dispute, was a journey over some 2 days. The final part from France was around 7 to the UK, in small boat during darkness. The Applicant says, and I accept, that he had not eaten for some period of time. On arrival the Appellant explained how initially he and the others from the boat were asked to line up by the Immigration Officers and proceed via a queue. It appears that when the Applicant was referring to ‘putting fingers on papers’, that there may have been some form of fingerprinting. I am not able to be more definitive about that. There was then a subsequent more in-depth opportunity for details to be taken from the Appellant. It was only at that in- depth stage at which there appears to have an interpreter for the Applicant. The interpreter was via a telephone and not face-to-face. It was at the initial stage at which the Applicant pointed to some paperwork. I accept the Applicant’s evidence that he did this because others ahead of him had done that and they were then able to pass through to the next area. The Applicant explained he wanted to pass through because he was tired and hungry in view of the long journey over the previous 2 days or so and which he described as being a difficult and frightening journey. I accept that that is likely to have occurred.
144. I make clear that nothing I have said impacts on the separate assessment by the Secretary of State for the Home Department in relation to the Applicant’s claim for asylum. I am not dealing with the Applicant’s claim for asylum. It is not before me. That will be a matter for the Applicant and his solicitors. I was made aware during the hearing that there has been a recent Reasons for Refusal Letter by the Secretary of State which the parties invited me to consider, on day two of the hearing. I note the Secretary of State’s decision and nothing of what I have said has any effect in relation to that separate protection claim because I not making any findings in respect of the protection claim.
145. It is not necessary in this already lengthy judgment to consider every minor aspect of the evidence which has been presented, but taking in account the matters raised and which Mr Parkhill asked me consider further upon invitation, I conclude that in the round there is no inherent probability of the Applicant’s mother knowing and remembering the Applicant’s date of birth for it then to be imparted to the Applicant during the telephone calls which took place between the Applicant and his mother once the Applicant was in the UK. In my judgment, as was pointed out during the submissions, even though the Applicant hails from a small village and away from schooling and from calendars, that does not mean that the Appellant’s own mother would not know when she gave birth to the Applicant. It was a very important event for her and the Applicant said that he ‘trusted’ his mother she must have remembered his birth correctly. I accept the Appellant’s evidence that his mother had provided the date to the Applicant once he was in the UK using the Pashtu calendar, which was then later translated into the Gregorian calendar by the social workers and others in the UK.
146. There are no ‘magic bullet’ documents available in this case, but that is not rare in these cases. In my judgment, looking at the case in the round, and having assessed the Applicant’s credibility in the round, I accept the Applicant’s evidence, including that he had the telephone conversation he states that he had with his mother.
Conclusion
147. Therefore, considering the extensive evidence as a whole, I conclude that the Applicant’s age is as he claims it to be. Namely, his date of birth is 5 January 2007. Therefore, at the time of the assessment of his age by the Respondent, the Applicant was under the age of 18.
148. I have considered whether a different date of birth might apply in line with the Court of Appeal’s decision in R (on the application of AI) v Berkshire Council [2025] EWCA Civ 136. Having carefully done so, I conclude that I cannot apply a different date of birth to the Applicant in view of the weighty evidence which sufficiently points towards the Applicant’s date of birth being that which he claims it to be.
149. The Respondent’s application for permission to appeal is refused.
Costs
150. The Respondent shall pay the Applicant’s costs on the standard basis. Such costs to be assessed by way of detailed assessment, if not agreed. There shall be detailed assessment of the Applicant’s publicly funded costs.
151. Counsel shall set out my decision in the minute of a draft order for my approval.
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