Tribunal decisions

The decision

IN THE UPPER TRIBUNAL JR-2025-LON-002472
(IMMIGRATION AND ASYLUM CHAMBER)

BETWEEN:

THE KING
(On the application of BLE)
Applicant

- AND -

DERBY CITY COUNCIL
Respondent

ORDER

BEFORE Upper Tribunal Judge Rimington sitting at Field House, Breams Buildings, London EC4A 1DZ

UPON having considered all documents lodged and having heard from Counsel for the Applicant and Counsel for the Respondent at a fact-finding hearing on 17-18 March 2026

AND UPON the Tribunal having handed down judgment on 17 June 2026 in the absence of the parties

IT IS DECLARED THAT:

1. The Applicant was born on 2 September 2002.

IT IS ORDERED THAT:

2. The application for judicial review is dismissed for the reasons given in the judgment.

3. The Applicant shall pay the Respondent’s reasonable costs, to be the subject to a detailed assessment if not agreed and subject to a determination of his ability to pay such costs pursuant to s.26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

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

5. Permission to appeal to the Court of Appeal is refused, no application for such permission having been made, on the basis that there is no arguable error of law in the judgment.

Signed: H Rimington Upper Tribunal Judge Rimington

Dated: 17th June 2026

IN THE UPPER TRIBUNAL
JUDGMENT GIVEN FOLLOWING HEARING

JR-2025-LON-002472

Field House,
Breams Buildings
London
EC4A 1DZ

THE KING
(ON THE APPLICATION OF)
BLE
Applicant

and

DERBY CITY COUNCIL
Respondent

BEFORE

UPPER TRIBUNAL JUDGE RIMINGTON
Date of Hearing 17th and 18th March 2026

- - - - - - - -

Ms S Ferrin, instructed by Luke and Bridger Law Solicitors on behalf of the applicant.

Mr M Millington, instructed by Derby City Council appeared on behalf of the Respondent.

- - - - - - - - - - - - -
ON AN APPLICATION FOR JUDICIAL REVIEW

APPROVED JUDGMENT
- - - - - - - - - - - - -
ANONYMITY ORDER

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 appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

The requirement for a litigation friend was dispensed with.

JUDGE RIMINGTON: The Applicant is a male from Vietnam who maintains he was a minor, with a claimed date of birth of 2nd September 2009, on entry to the United Kingdom years when he arrived in the UK on 20th March 2025. The respondent asserts that he was born in 2002 and thus the applicant is ‘age-disputed’. The sole issue before the Tribunal is the applicant’s date of birth.
Background
2. The applicant arrived in a ‘small boat’ and upon arrival in the United Kingdom, he was detained and interviewed by the Home Office on 20th March 2025. He was considered to be an adult and ascribed a year of birth as 2002 by two Home Office Officials and recorded as an adult. The applicant’s interview was recorded in an ‘initial contact and asylum registration questionnaire’ (ICAR questionnaire). The applicant claimed asylum with the Home Office and that claim remains outstanding. He was accommodated by the Home Office as an adult but then challenged his recorded age.
3. The applicant was referred by Migrant Help (a charity offering advice and guidance to those seeking asylum in the UK) to the Local Authority on 3rd April 2025.
4. The applicant was then assessed, in a shortened age assessment by the respondent’s social workers, on 10th April 2025, to be an adult and born in the year ascribed (2002) and his date of birth was recorded as 2nd September 2002. The applicant instructed solicitors who challenged the age assessment and instituted judicial review proceedings.

Litigation history
5. Permission for Judicial Review was granted by His Honour Judge Rawlings sitting as a Deputy Judge of the High Court on 24th July 2025 (the order being sealed on 29th July 2025) and the matter was transferred to the Upper Tribunal (Immigration and Asylum Chamber).
The grounds of challenge to the age assessment
6. The first ground asserted the respondent’s assessment of the applicant’s age was wrong as a question of fact.
7. It was set out that the applicant’s witness statement provided evidence of how he came to know his date of birth and age. His paternal grandfather had told him his age and date of birth in the Gregorian calendar when he was growing up. He had also attended school, where he was put into classes by age and grade. Previously he had a birth certificate and a passport showing his date of birth. The respondent’s assessors had not cast doubt on the applicant’s account of how he came to know his age.
8. Permission in relation to ground 2 was refused. This ground had advanced that there was procedural unfairness in the age assessment (including an absence of an effective ‘minded to’ process) and a failure to comply by the age assessors with applicable guidance from the Association of Directors of Children’s Services (ADCS) and binding caselaw such that there was an erroneous approach taken to the applicant’s physical appearance and demeanour.
Legal Framework
9. Stanley Burnton J in R (B) v The London Borough of Merton [2003] 4 All ER 280 set out detailed guidance on the process to be followed by local authorities when assessing age which has been repeatedly endorsed.
10. R (AM) v Solihull Metropolitan Borough Council (AAJR) [2012] UKUT 00118 (IAC) addressed the reliance upon observations of physical characteristics and demeanour as follows:
'15. In the present case the evidence is wide ranging. It may therefore be appropriate to make some general observations about the impact of evidence of various sorts and from various sources in this type of case. First, we think that almost all evidence of physical characteristics is likely to be of very limited value. That is because, as pointed out by Kenneth Parker J in R (R) v Croydon [2011] EWHC 1473 (Admin) there is no clear relationship between chronological age and physical maturity in respect of most measurable aspects of such maturity.
16. The difficulty is exacerbated by the lack of any clearly based data. In relation to Afghans in particular, our understanding is that there is no group of Afghans in Afghanistan of certain age. It is obviously difficult to see how the assessment of one individual can be justified if it is based not on similarity to the development of another individual whose age is known, but merely on similarity of development to another individual whose age is also only assessed. Secondly, those individuals who raise questions of the assessment of their age typically have a history, or claimed history, beginning with childhood and early youth in a country of relative poverty, continuing with a long and arduous journey that is claimed to have taken place during their mid-teens, and concluding with a period living in a country of relative affluence such as the United Kingdom. So far as we are aware, no, or no sufficient, work has been done to identify what affect such a history might have on their physical maturity at various dates.
[...]
19. […] 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 judgment sufficient to counteract those difficulties. […]’
11. The High Court in VS v The Home Office [2014] EWHC 2483 (QB) summarised the relevant legal requirements of an age assessment at [78] as follows:
‘…
◦ The purpose of an age assessment is to establish the chronological age of a young person.
◦ 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].
◦ 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].
◦ 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.'
◦ 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.
◦ 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.'
◦ 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].
◦ The two social workers who carry out the age assessment should be properly trained and experienced: A and WK per Collins J at [38].
◦ 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)].
◦ The child should be told the purpose of the assessment see FZ per Sir Anthony May P at [3] (summarising Merton).
◦ 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].
◦ 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].
◦ 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’).
◦ 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]).’
12. In R (FZ) v London Borough of Croydon [2011] EWCA Civ 59 Sir Anthony May P confirmed that social workers could, in the course of an age assessment,
‘…[be] able to judge a [putative child’s] general appearance and demeanour, and to make a general credibility judgment from the manner in which he answered their questions. It does not follow that the court would be bound to make the same judgments.’ ([29]).
13. In R (AE) v Croydon LBC [2012] EWCA Civ 547 the court held that in the absence of documentary evidence, the starting point was credibility and in MVN v London Borough of Greenwich [2015] EWHC Civ 1942 (Admin) Picken J noted at [27]:
‘It would, therefore, appear 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… ‘
It was emphasised that all material should be taken into account and further that “allowances should be given to the fact that asylum seekers (and similarly victims of trafficking) may have problems giving coherent accounts of their history”.
14. In R (HAM) v London Borough of Brent [2022] EWHC 1924 (Admin), Swift J confirmed that it was necessary for adverse points to be put to the young person so that they may have an opportunity to respond but Swift J also held that the distinction between a full Merton assessment and a short form assessment was legally irrelevant; what is required in all cases was for the principles identified in Merton to be applied in respect of “reasonable investigation and fair process”.
Documentation
15. An agreed paginated and indexed bundle and an authorities bundle were supplied. In particular three witness statements from the applicant were provided. Skeleton arguments were also provided.
16. Shortly before the hearing there was an application to admit a witness statement of AVH a friend of the applicant entitled ‘second’ witness statement dated 2nd March 2026. This was admitted at the hearing.
17. After the first day’s hearing and following enquiries in relation to the education and social service systems in Vietnam, Ms Ferrin helpfully produced a report by Benjamin Sharvell dated 3rd February 2026 on ‘How the Education System in Vietnam Works: A Guide for Expat Parents’ (the Sharvell report) and the Country Policy and Information Note Vietnam: Unaccompanied children, February 2025 (CPIN: Unaccompanied children). Also produced were a UNICEF report, the Australian Government Department for Foreign Affairs (DFAT) report 2022, and a Human Rights 2023 report on Vietnam. Also produced was a further witness statement from Martin Bridger, solicitor relating to the attempts to contact the Vietnamese Embassy in London after the email address used was questioned.
The applicant’s evidence
18. In his witness statement dated 11th June 2025 (first witness statement) the applicant claims he knew his date of birth because his paternal grandfather told him when he was growing up. He confirmed he had a birth certificate which included his name, date of birth and address. He, however, ‘lost’ this document in Vietnam and lost his passport whilst travelling (first w/s (11th June 2025) [6]). He left school when his family got into trouble over a debt his father owed and those perpetrators came to the house and threatened his family. He did not live with his father. He started school at 6 years old in 2014/15 and studied many subjects. He left Vietnam because a family took him to Hungary where he was told he could go to school and they said they wished to foster him. He confirmed in his witness statement that the couple gave him ‘doctored’ papers (this was retracted in oral evidence and the applicant at the hearing stated he did not know if the papers were false or not). He had lost these papers. When he got to Hungary in 2024 the couple took him to a warehouse and he was forced to work loading crates of vegetables. He worked there for three to four months.
19. He stated that ‘when I wanted to leave Hungary’ he was picked up by a lorry driver who would deliver goods (he did not know if he worked at the warehouse), and he drove the applicant for two or three days and the driver told him to follow a group of homeless people who would take him to safety. They were all older than the applicant and spoke different languages but did not treat him badly. He states he was not fingerprinted nor claimed asylum in the countries (which he did not know) through which he passed, and the group said they would get him somewhere safe. He felt safer in a group. He then arrived by boat in the UK. He confirmed he understood the interpreter during the age assessment. He said the reason for his large Adam’s apple was a throat infection when he was young. He was scared living in the hotel with ‘everyone’ ‘bigger an(sic) older than’ him. He did not know how to get a doctor’s appointment (for a rash).
20. He could cook and clean for himself as he was made to do this in Hungary.
21. In his second witness statement dated 30th June 2025 (second witness statement) he explained that in the Home Office documents it is recorded he stated he had a phone with no SIM. He got this phone in Hungary from the person who helped him escape from the warehouse. This phone had a Hungarian SIM card which did not work in the UK which is why he told the Home Office he did not have one. The family in Vietnam ‘gave me a plane ticket and a visa and told me to go to Hungary’ so he could continue his schooling. The timeline in the documents had not been recorded correctly. He left Vietnam in or around April 2024, stayed there for 3-4 months and the reference in the social care file to working for 1 month was incorrect. After his escape it took a further 5-6 months to travel to the UK. He confirmed in this statement that his claimed age of 16 was wrong as he was on his professed date of birth only 15, but he said this was because people in Vietnam ‘aged up’ on 1st January.
22. He refused the National Referral Mechanism (NRM) referral when offered by the Home Office because they did not explain to him what this was and he was not happy with his details being disclosed. This has now been explained to him by his solicitors and so he wished to be referred to the NRM.
23. In his third witness statement on 16th September 2025 (third witness statement) he stated that he had never given a date of birth as 2nd September 2002 and this was given to him by the Home Office.
24. The reason why his date of birth on his Tik Tok account was not the same as his date of birth was because when he made the account, he was significantly younger and living in Vietnam and used a random date of birth for the creation of the account. The day and the month were the same as the day he created the account and he just changed the year to reflect the year he was born.
The Hearing
25. The applicant attended and gave oral evidence at the hearing. He completed his oral evidence and chose not to return on the second day of the hearing and was given a video link should he choose to join remotely but did not do so. Owing to the directions none of the social workers attended.
26. I have not rehearsed the oral evidence in detail as it is recorded and I have referred, where relevant, to that evidence in my decision below.
27. I admitted the witness statement of AVH whose name is anonymised because he is a minor.
28. At the outset of his evidence the applicant amended his witness statement.
29. On the second day I admitted the further documentation and witness statement from Martin Bridger.
Submissions
30. Mr Millington relied on his skeleton argument and submitted that the applicant had at first stated in oral evidence that he had an ID card which he lost in Vietnam and then stated he lost that and his passport during travel via Hungary. There was no independent evidence of his claimed age. The applicant maintained he had lost all documents either in Vietnam or Hungary.
31. The statement of Ms B Smith, the child trafficking guardian, confirmed that no part of her role was to assess his age or provide her own opinion and indeed she emphasised the importance of maintaining clear boundaries. No weight could be placed on her statement.
32. In terms of AVH’s statement this was opinion evidence and there was no suggestion he had any qualifications nor expertise. The basis of his support was that they got on well together as friends. My attention was drawn to AM v Solihull [21] and R (AZ) v Hampshire County Council (AAJR)[2013] UKUT 00087 (IAC) at [39] in order to assess the weight of the witness statement.
33. The starting point was the credibility of how the applicant knew his age, he said being told by his grandfather, but his explanations were not credible.
34. First, in his first statement and oral evidence the applicant professed he did not remember when he was told his date of birth and it did not take place on any special occasion. During his oral evidence he then said it might be around the age of 6 or 7. Then he could not be sure he was ever told on more than one occasion. There was no plausible explanation of how he understood what he was told at a very young age. If he understood through the Gregorian calendar this would not reflect cultural practices. His evidence was that he was not religious and the family did not celebrate any special occasions or festivities. The school records referenced in his oral evidence were not provided to the Tribunal.
35. Second, he relied on documentation not before the Tribunal. He claimed he read his date of birth on his birth certificate (cursorily on one occasion), but he could not remember when this was. His assertion the birth certificate might have been burned owing to Vietnamese tradition was not credible. His evidence initially was that his date of birth was displayed in his passport but now he says he is not sure if the details in the passport were valid or not. It was doubtful he travelled on a valid passport bearing in mind the claimed conduct of the couple towards him. Indeed, if he were recorded as a minor on his passport, it is surprising he would be able to travel independently with no one checking him at the airport.
36. Although recorded in the Gregorian calendar, this would not reflect Vietnamese cultural practices as to ‘ageing up’. His own evidence was that his birthdate was not celebrated. I was referred to the CPIN on unaccompanied children at 9.1.2 and which confirmed that education was free and compulsory to the age of 14 years.
37. In his first witness statement at [9], the applicant claimed he started school in 2014/2015 but there was no explanation as to how he knew those dates and in oral evidence only stated he knew those dates as he had seen them on school records.
38. Third, he told the social workers he was 16 years old when in fact his claimed date of birth would make him 15 years old at the date of assessment. He sought to explain this discrepancy by stating that in Vietnam age is calculated with the changing years. This contrasted however with his evidence that he did not celebrate birthdays growing up. Additionally, the article provided suggests that birthdays are celebrated at the turn of the lunar year rather than the 1st January of each year in the Gregorian calendar. The applicant had informed the social workers he used no other calendars than the Gregorian calendar.
39. Fourth, despite the school being aware that his grandfather had died and offering gift aid, to the applicant’s knowledge there was no referral to child services. The Country Policy and Information Note at 13.1 confirmed that there is child protection in Vietnam.
40. Although stating he needed to pay school fees it was not clear why fees were required given it was a state (public) school. The applicant’s case was that when debt collectors called in the debt from his father, he needed to leave school, but it was not explained why his father’s financial situation affected his own given that he had never seen his father growing up and was not even sure where he lived. If his father was responsible for the fees, it was unclear why his grandfather’s death would alter the situation.
41. Although the applicant had stated in his first statement, he was scared to leave his hotel as he did not wish to get lost, first he had a smart phone with maps on it and secondly this contrasted with the resilience he had shown ‘escaping’ and travelling from Hungary and accompanying adults on the journey to the UK.
42. The applicant maintained that his neighbours gave him a phone in Vietnam in order to create the TikTok account. This social media application required a ‘smart’ phone capable of displaying videos and it was not plausible that an expensive phone would have been provided as suggested.
43. Further he had altered his witness statement from confirming that his documents on which he travelled to Hungary had been ‘doctored’. He now suggested it was a real document with his actual date of birth on it. This called into question his reliability.
44. Weight should be afforded to the trained social workers’ assessment. Several legal authorities had cautioned that appearance and demeanour were unreliable, but they can be relied upon if it is a clear and obvious case. The applicant accepted he looked older and maintained that was because he worked but this, even on his own evidence, was only for 3 or 4 months. The brief enquiry assessment was the best evidence available and should be relied upon.
45. In her submissions, Ms Ferrin confirmed that the applicant did not have immigration solicitors and had not undertaken an asylum interview.
46. Ms Ferrin also relied on her skeleton argument. She submitted that the applicant had been consistent about his date of birth since arrival in the UK. She submitted that the initial contact with the Home Office dictated the age ascribed to the applicant and that he had always asserted he was 16 years old when he arrived. That was evidenced from the timing of the forms. He stated that he had been given a band on arrival designating that he was a child despite reference in the initial forms that he had not claimed to be a child. The age assessors merely followed the Home Office ascribed aged. The reference in the Local Authority child referral form stating that the applicant had given his date of birth as 01/02/2008 (rather than 2/09/2009) was evidently unreliable. There was no reference to trafficking nor exploitation factors in the first assessment.
47. The applicant maintains that the discrepancy between stating his age as being 16 on arrival and in fact being chronologically 15 years with his claimed date of birth was because according to Vietnamese culture age changes on 1st January as supported by the country evidence. He was part of a younger generation to which the lunar calendar and the change therein may not be familiar.
48. The applicant was educated and there was no reason to doubt his account that a figure of authority, his grandfather, conveyed his age to him, and he was able to remember and had been in school and could mark the passage of time and how each year he was getting older. The fact that he could not remember when he was told does not undermine his account. He attended school and thus was able to state the age he is. It was common for people not to remember when they were told. He attended a school and thus could say the age he was. He had sight of documentary evidence, and this strengthened the confidence of his account that he could remember as it acted as a memory cue. The applicant’s evidence of the neighbour burning the birth certificate should not be taken against him. The burning of the birth certificate occurred when he was a child and would be a last priority for a child on his grandfather’s death.
49. The Country Policy and Information Note showed that children have yet to benefit from a child protection system. There was a severe shortage of social workers which left children in vulnerable situations. His neighbours and charities assisted him. The evidence also confirmed that although education was free, school fees are common and so the fact he needed to pay school fees was credible. I was referred to the Sharvell report as to the credibility of paying fees.
50. The submission that a child could not lose an important document was flawed. The fact that he would not be able to give a lunar new year now when he was in the UK was understandable. It was still part of his cultural fabric.
51. His guardian had died and thus he would be a target for traffickers with the promise of education. The fact of escape did not make him an adult. The fact he was able to travel with adults reduced the fear. The Tribunal was invited to find he had attempted to obtain copies of his birth certificate and the fact he had taken steps to obtain the document spoke to the truthfulness of his account.
52. At this point both Ms Ferrin and Mr Millington agreed the official website of the Vietnamese Embassy and contact details, and which was accessed from a link via the Foreign Office.
53. Ms Smith, an Independent Child Trafficking Guardian at Barnardo’s, a National Counter Trafficking Centre, was an independent witness and was frank about the information she could give. Weight should be attached to her evidence such that there was clear indication the applicant had been trafficked and that he felt isolated in adult accommodation and spent much of his time alone which indicated he was a minor. Her evidence was not challenged.
54. Physical attributes and demeanour were notoriously unreliable, and this was not an obvious case. I was referred to AM v Solihull [19]-[20] such that social workers evidence was not necessarily sufficient to counteract the assertion of the applicant.
55. When considering the handwritten notes of the social workers it was clear that the conclusion had been reached before asking for a response from the applicant as to the reasons for the conclusions. On the file copy notes from the Home Office there is a reference to the additional info ASF1 Form (additional info) which referred to the applicant looking ‘visibly young’. I was invited to find the applicant was the age he claimed.

Conclusions
56. I note that Ms Ferrin requested at the outset that the applicant be treated as a vulnerable witness. There were no medical reports or indications that the applicant had any significant mental health issues, but she submitted that he should be treated as underage for the purposes of the hearing and evidence. She confirmed that the applicant had no special or cognitive needs. I applied The Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance (Vulnerable Witness Guidelines) and AM (Afghanistan)v Secretary of State for the Home Department [2017] EWCA Civ 1123 in both the conduct of the hearing. Breaks were adopted during the hearing, but moreover I have approached the evidence with the Vulnerable Witness Guidelines in mind. I have taken into account all of the oral evidence but make specific reference to certain parts to illustrate the aspects of the applicant’s account that I found particularly unbelievable or evidence which was absent and which could be reasonably expected to have been produced.
57. I have highlighted the chief difficulties with the applicant’s account but have not mentioned the many minor inconsistencies. That his account was said to have been consistent from his date of entry does not lead me to conclude that his account is reliable. There was no evidence of cognitive impairment and to adhere to a simple date is not a difficult task.
58. In his first witness statement dated June 2025 the applicant stated as follows:
‘5. I know my age and my date of birth because my paternal grandfather told me when I was growing up. He said that he knew this from my birth certificate. I do not remember how old I was when he told me this but there was no special occasion for this. The calendar he used to tell me this was the Gregorian calendar.
6. I used to have a birth certificate which I have read, and this shows my date of birth to be the 2 September 2009. I don’t remember when I first saw this, but I know it included my name, my date of birth and my address. I lost this document when I was in Vietnam. I also had an ID with my date of birth on as well as my Vietnamese passport, but this was lost when I was trailing (sic) from Hungary to France.
…
8. When I was growing up, we did not celebrate birthdays or any special occasions.
9. I went to school in Nam Dan, called Hong Long. I started at 6 years old, which I think was around 2014/15, and I left at 14 years old, in 2023/24. We were grouped in classes by our age, and each age was a part of a different ‘grade’. Most of the people in my class were the same age as me and a few were slightly older as they did not pass their exams to move up a grade. I learnt many different subjects at school, and I can read and write in Vietnamese. I was also taught how to use the Gregorian calendar, and I have not used any other calendar….’
59. In his evidence there was a distinct lack of detail. In his oral evidence his ability to give actual detail in relation to his childhood eluded him. I appreciate I was to treat him as a vulnerable witness and he was recalling information from when he was a child, (albeit that he maintains he still is one and the events are not in the too distant past). His witness statements, however, were taken by his legal representative in his own time. In his first witness statement he said he started school in 2014/2015. That contrasted sharply with an inability to recall dates in relation to other later important matters during his oral evidence which he was asked about. There was no explanation for his knowledge of the dates when he started school in the witness statements but in oral evidence he was unable to give information on dates or facts, notwithstanding nerves in a hearing. During his oral evidence he appeared calm and composed. He has no special or cognitive needs and an interpreter was present.
60. For example, his oral evidence appeared characterised by a lack of knowledge of key dates prior to his entry to Hungary. He confirmed in his witness statement he only used the Gregorian calendar. His pinpointing of 2014/2015, the dates he started school contrasted sharply with the other evidence he gave as to dates following that date until approximately 2024/5. The applicant was, however, wholly clear as to the dates he left Hungary and when he came to the UK.
61. Despite being a very significant moment in his life and a relatively recent event being only just over two years ago, he could not say whether his grandfather died in 2023 or 2024. The applicant was also unable to state how long his grandfather had been dead before he had to leave school. In his oral evidence he stated that he did not know if his mother lived in the house where his grandfather lived, and did not even know the address of the house. I note the applicant was able to give his town and province in his ICAR questionnaire, but he had no information about his family and yet confirmed later in evidence that his grandfather told him ‘war’ stories. There was no adequate explanation as to why, when the applicant on his own account had no information about his father at all, had not lived with him and did not know his whereabouts, his need to leave school was linked to his father’s debts.
62. The applicant maintained that difficulties arose over the payment of school fees which he could not pay. However, he claimed he left school at 14 years and in effect before fees are required. I was provided with the Sharvell report to demonstrate that fees were required albeit they were public (state) schools, but this report was designed to assist in structuring ‘flexible offshore savings and investment solutions’ for expat education. This acknowledged that in effect public schools were free save for minimal costs of books. It also confirmed that the lower stage secondary school was for ages 11-15.
63. The Vietnam 2023 Human Rights Report did not detail when school fees were ‘common’ and at what level.
64. In his first witness statement the applicant stated that he ‘lost’ his birth certificate in Vietnam. In his age assessment questioning (where he confirmed he understood the interpreter), when asked where his birth certificate was, replied that ‘I’m not sure whether it went missing or not’. By contrast, in his oral evidence he told us that his neighbours burned the documents in his grandfather’s home as that was a Vietnamese tradition. I found that wholly incredible bearing in mind the importance and use of official documents in Vietnam which can be seen from the CPINs provided in relation to Vietnam.
65. The applicant confirmed that when he was growing up ‘we did not celebrate birthdays or any special occasions’, first witness statement [8], and confirmed again he used the Gregorian calendar. He stated he was told of his birthday in the Gregorian calendar.
66. It is not credible therefore that he would describe himself as 16 not 15 when he arrived in the UK. In other words, his date of birth did not tally with his claimed age. He attempted to explain this in his second statement by stating ‘This is due to how ages are calculated differently where I grew up in Vietnam. We age up 1 year on the 1 January, not on our actual birthday.’ Apparently the applicant was initially not aware of the practice that Vietnamese consider themselves a year older at the turn of the lunar new year (a traditional festival) rather than the Gregorian new year but also he had confirmed in oral evidence that his family did not celebrate traditional ceremonies before amending his evidence to state that they did celebrate the lunar new year. I found this contradictory. The article produced on the approach to age, in my view, undermined the applicant’s evidence and I note the applicant told the social workers that he did not use any other calendar than the Gregorian calendar. The practice in Vietnam is to ‘age up’ on the lunar new year and not the Gregorian calendar 1st January. The applicant expressly stated in response to the age assessment question that he did not even know the lunar calendar.
67. He could not remember in oral evidence why, when he created his TikTok account in Vietnam there was simply a random date of birth. Only a screenshot of this account was produced and no other information.
Lack of documentation.
68. At the age assessment interview in April 2025 the applicant was specifically asked if there was any other authority that could help to verify his age. As can be seen from the country background material produced (DFAT Country Report 2022), Vietnam is a document-based country. At 14.2.2 the DFAT report 2022 noted ‘…The Ministry of Justice manages the national Civil Registration and Vital Statistics (CRVS) system. The office of the justice clerk in every commune maintains a civil and vital events register to record births, deaths, and marriages of commune residents, which are then reported to district, provincial and central levels…’.
69. I do not accept that should the correct date of birth be provided to either a national or local organisation in Vietnam, the birth certificate or details of this applicant could not be obtained.
70. I accept that it may be difficult to secure documentation, but the applicant has been legally represented since at least the commencement of these proceedings on 12th June 2025. His asylum claim does not indicate any risk from the state authorities. His evidence was that he had not only a passport but also a Vietnamese identification document. For that he would have had to produce documentation to the authorities. I do not accept that he would not be able to obtain official evidence of his date of birth.
Birth certificate
71. I was presented with an email trail in order to demonstrate attempts to secure a birth certificate. The Birth certificate request was by email via Vy Le, GV Lawyers in Vietnam. An initial enquiry was made by the applicant’s solicitors on 15th September 2025. On 16th September 2025 at 11.04 the applicant’s representatives were told by Vy Le GV lawyers in Vietnam that in order to obtain an official copy of his birth certificate certain documents were required or the contact information of his parents. A response from the applicant’s representatives on 16th September 2025 at 11.42 advised the applicant had ‘no living family members’ and enquired ‘is there another route that could be taken that does not include this?’. The response to this is not apparent from the documents but a further email from the applicant’s representatives gave the Vietnamese lawyers the applicant’s name, date of birth as 02/09/2009 and his dates of leaving Vietnam. The Vietnamese lawyers on 17th September 2017 at 04.40 responded as follows
‘if there is no information about [the applicant]’ that is place of birth- specifically the commune, district and province in Vietnam prior to the merger – it is not possible to obtain an extract of the birth certificate for [the applicant]. You may contact the Embassy of Vietnam in the United Kingdom for further guidance.’.
72. I make two observations about this which undermines the assertion that it was not possible to obtain the information. First, if the incorrect date of birth was presented in the first place then it would not be possible to locate the relevant information and secondly, the applicant did know his province of birth because in his ICAR questionnaire on 20th March 2025, the applicant gave his country and town of birth as ‘Vietnam, Nam Dan (Province Nghe An)’. Clearly the requested information was available. Not surprisingly the email correspondence then ceases.
Vietnamese Embassy
73. The initial statement of Martin Bridger stated that he instructed a colleague to contact the Vietnam Embassy and the email was vanphong@vietnamembassy.org.uk and the response was that the inbox was ‘full’.
74. I note the 29th August 2025 email to the applicant’s solicitors from the ‘Mail Delivery System’ advising that the message could not be delivered to vanphong@vietnamembassy.org.uk because ‘Quota exceeded (mailbox for user is full)’.
75. On questioning as to the right email address for the Vietnamese Embassy, I was presented with a further witness statement from the applicant’s representatives indicating that ‘vanphong’ was said to translate as ‘office’ and this had been emailed but the inbox was full.
76. Following that statement, in the hearing the consular details of the Vietnamese Embassy were discussed with the representatives at the hearing and it was agreed the official email address on the official website for the Vietnamese Embassy in London is in fact, consular@vietnamembassy.org.uk, the phone number is 0207 939 1012 and the postal address is 35 Victoria Road London W8 5RF. No email or letter was addressed to those addressees.
77. Even if he could not contact the Embassy to verify his age (and for which he would have to supply his correct date of birth and thus age), there was no indication he had contacted his secondary school even though he was in attendance, according to his evidence, only 2 years ago and for some years. During his oral evidence he stated that he saw his date of birth on school records and that he was awarded a school certificate. The secondary school would undoubtedly have his details on file. I consider it would be reasonable at the very least to expect some form of attempted contact with the school which he asserts he attended for at least 7 years. The representatives sought a birth certificate through Vietnamese lawyers and yet there was no reason given why they did not approach the official body, the secondary school, for which an address is available and which could reasonably be expected. The applicant could have provided an authority to his representatives to access the information.
78. Additionally, the applicant had social media in Vietnam, and no approach was made to any friends in Vietnam.
79. In terms of the requests from the Embassy of Hungary, which did receive a response, such that the Authority has not processed any data relating to the applicant, I note that the date of birth given was that claimed by the applicant. The applicant confirmed in oral evidence he did not know whether the documents provided to the Hungarian government were fake or not.
80. There was unfortunately no evidence or observations of the applicant from any school or college in the UK.
Independence.
81. According to the applicant after his grandfather died, he fended for himself in Vietnam with the assistance of neighbours and the school. Despite stating that he was uncomfortable in the hotel in the UK because they were adults and who spoke different languages, he confirmed that when leaving Hungary, he did not use an agent and simply independently followed a group of adults (initially only men) who spoke different languages. He thus travelled independently through Europe before travelling to the UK. That is not consistent with his claimed age and moreover contradicts his evidence as to why he did not wish to remain in the hotel in the UK because they were adults of different backgrounds.
82. In terms of independence, I am also surprised that the applicant was able simply to remove himself at will after 3-4 months from the said the warehouse in Hungary.
83. The Country Policy and Information Note Vietnam: Unaccompanied children, February 2025 indicates that a 2016 Vietnamese law regulates the position on orphaned or abandoned children and see 9.5.1. The CPIN at 13.1 referenced the UNICEF report as indicating there was no functioning child protection system but this report is cited in the footnotes as undated. Further, the same report identified the ‘insufficient professional capacity including a shortage of professional social workers and child protection officers’. That does not indicate a complete lack of a child protection system. In June 2021 it was identified that there was the first national level programme for online child protection and the involvement of schools at 13.1.6.
84. The applicant confirmed that the school knew, as a minor, that his guardian had died. I appreciate that there is trafficking of children in Vietnam but the Country Policy and Information Note: Trafficking, Vietnam, February 2025 (accessible) confirmed there are severe penalties in Vietnam for trafficking of children younger than the age of 16 and prescribed penalties of seven to 12 years’ imprisonment.
85. I note the guidance on trafficking was included in the bundle with reference to the applicant’s referral to the NRM and Ms Smith’s evidence, but the fact is that adults can also be trafficked. I also have noted above that the applicant simply removed himself from the warehouse apparently voluntarily.
86. It is even more surprising that the applicant gave no detail about the couple who took him to Hungary. It is not believable that he would not even proffer their names (even though asked as that was specifically raised in relation to interpretation by the applicant’s own interpreter at court).
Medical evidence
87. The applicant attempted to explain his large Adams apple owing to a prolonged throat infection but the lack of any medical report or indeed confirmation that this was even a medical possibility undermined this assertion. When the applicant was asked whether he had seen a GP in connection with that condition he told the court he had been waiting for a month or two for an appointment. No evidence was produced to confirm any appointment had been sought at all.

Witness evidence
88. Turning to the witness’ evidence, Ms Bethany Smith, trafficking guardian, confirmed that she did not intend to attend the hearing as she accepted that she was an advocate. Indeed, on enquiry it transpired that the referral of the applicant to Barnardo’s, the organisation for which she worked, was made by the instructing solicitors. Ms Smith accepted that her role was to support and advocate on behalf of the applicant, was not in attendance to be cross-examined and her evidence was clear that her role was not to assess his age. I accept that she was acting entirely professionally but her evidence in my view does not go to the applicant’s age. He was received by her as a child, and she was not in attendance to be questioned about that. As such I attach very limited weight to her evidence. The point was made by Ms Ferrin that the applicant would be more at risk of trafficking as a child and this is what had occurred but equally, there is no confirmation that his claim of trafficking has been accepted either by a reasonable grounds decision or conclusive grounds decision and moreover adults can be trafficked. I also refer to my findings above as to the trafficking of adults when considering age.
89. In terms of AVH’s witness statement, it was only tendered on 3rd March 2026 and when questioned about its late submission, Ms Ferrin confirmed that the witness, who is 16 years old had initially felt ‘uncomfortable’ about giving a witness statement. I note that he records that the applicant had told him he was 16 years old and his date of birth, but the witness made no reference to seeing any document in relation to the applicant’s age, is himself young at the age of 16 years, and as Mr Millington pointed out no approach was made to the LA in whose care the witness was as a looked after child. Notwithstanding the legal authorities which deprecate approaches to such young people in these circumstances, I place little weight on his evidence. It was not clear under what circumstances he had finally agreed to give such a statement. I place very limited weight on his statement.
The brief assessment.
90. The second ground of review in relation to the procedure adopted by the assessors was not granted permission. This related to the reliance on physique and demeanour which, I accept, in part, falls into the approach in ground 1) but part (b) of the second ground specifically referenced the ‘minded to process’. Thus, the second ground in relation to procedural defects of the brief enquiry was refused permission. In other words, the procedural approach adopted in the age assessment was sound. Although Ms Ferrin pursued that the interview was not subject to a proper ‘minded to’ process, that is not arguable bearing in mind that it was a ground cited in ground 2. Even if permission had been granted, in the circumstances of the overall approach of the age assessors, I do not find that the applicant did not have the opportunity to present his side of the debate. The interview by the social workers took place on 10th April 2025. By that date the applicant had already been given an indication that his age was disputed. Nearly 3 weeks beforehand on 20th March 2025, the Kent Intake Unit on behalf of the Chief Immigration Officer had written to the applicant confirming that his age was disputed. The letter given to the applicant clearly acknowledged his claimed date of birth as ‘02/09/2009’ but it noted that he had failed to provide any satisfactory evidence and furthermore ‘two Home Office members of staff have assessed that your appearance and demeanour very strongly suggests that you are significantly over 18 years of age’.
91. The Home Office assessing officers report dated 20th March 2025 recorded that he was of average height, has an athletic build with broad shoulders’ ‘facial hair on chin and upper lip, developed Adam’s apple, lines on forehead and nasolabial folds’. He had a deep voice, spoke calmly towards the officer and interpreter’. During the interview the applicant was specifically asked ‘you appear to be older than you are claiming to be, is there any reason for this?’ And he answered, ‘I don’t know may because my life was hard’ (in fact he had been at school on his evidence and had worked for only a few months). The applicant was fully aware of the reasons for the dispute of his age and had ample time to consider his response. He was referred by Migrant Help to the Local Authority on 3rd April 2025, and the Brief Assessment took place on 10th April 2025.
92. His engagement with the hearing in the Upper Tribunal demonstrated that he felt comfortable enough to challenge Mr Millington such as asking counsel what he meant by certain questions. In accordance with R (HAM) the approach adopted was not procedurally unfair in the circumstances. As stated at [24] what is required is ‘such investigation as is reasonable on the facts of the case’ and further a ‘fair process’.
93. I accept that the age assessors’ ascribed age was based on a short form assessment, but these social workers as noted in their statements are trained and experienced age assessors. An interpreter was present, and they asked relevant questions, they put to the applicant queries on his evidence and questioned his evidence as the interview progressed. Their reasoning was sound. There is no indication that trained assessors would not appreciate the social and cultural factors involved or that they proceeded in anything other than in accordance with the ADCS guidance.
94. I was referred to [19]-[20] AM v Solihull as to the weight of the social worker evidence but this states that it is ‘difficult to see that any useful observations of demeanour or social interaction or maturity can be made in the course of a short interview’. This does not necessarily undermine the evidence of the social workers and concentrates on demeanour rather than physical attributes which in obvious cases is permissible to rely upon.
95. The applicant’s explanation that he looked older, which he evidently accepted, was that he had had a hard life. His account, however, was that he was at school until at least approximately two years beforehand, he did not work, left in 2024, had worked for only a matter of months in a warehouse in Hungary and came (virtually independently) to the UK in 2025. He did not claim that he worked for years in fields or in the outdoors.
96. The reference in the Home Office notes to an ‘ASF1 Form’ with ‘additional info’ and the applicant looking ‘visibly young’ is in fact a quote from a referral document and it is not clear that this was even made by the Home Office or social workers because it states. ‘His date of birth is 02/09/2009. Emailed HO and SS referral made as su looks visibly young’. I note the referral was made by Migrant Help on 3rd April 2025 and this entry appears to date from 8th April 2025.
97. The lack of trafficking referral at that stage was that the applicant did not request a referral to the NRM but the social workers were aware of the background of the applicant and his narrative and would appreciate the sensitivities concerning trafficking. There is no indication that the social workers treated the child referral form (which included differing age given by the applicant) as determinative.
98. I place weight on the social workers’ assessment.
99. What is Merton compliant is fact sensitive and in certain circumstances (such as these) it was open to the social workers to adopt a short form assessment.
100. The assessors were entitled to rely on inconsistencies and vagueness, and the assessment was conducted in April, not immediately after entry to the UK in March 2025 and an appropriate interpreter was present.
101. The court should not apply a legal burden of proof in determining whether an applicant is or is not a child, R (CJ) v Cardiff CC [2011] EWCA Civ 1590 [21]. Every factor, however, for and against has now been properly weighed and in my view, there is no real doubt here such that any ‘benefit of doubt’ should be or should have been applied. As set out in R (HAM) the assessment must be made on reasonable enquiry, and this will depend on the circumstances; the enquiry must be undertaken fairly, which, in my view has been done in this case. Nothing in the assessment suggested that the Merton guidelines were not complied with or that the social workers failed to adhere to the ADCS guidelines, which are just that, guidelines.
102. Overall, I attributed weight to the social workers’ age assessment, the applicant’s inconsistency in his evidence (save for his assertion throughout that he was a minor on which I place little weight because it is a simple assertion) and the failure to access documentation from the sources reasonably open to him, particularly the school.
103. I find therefore that the applicant was an adult on entry, and his date of birth is 2nd September 2002.
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