JR-2025-LON-004541
- Case title:
- Appellant name:
- Status of case: Unreported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country:
- Judges:
The decision
JR-2025-LON-004541
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
on the application of
CSN
Applicant
and
Derby City Council
Respondent
ORDER
BEFORE Upper Tribunal Judge O’Callaghan
HAVING considered all documents lodged and having heard Mr D Bazini of counsel, instructed by Luke and Bridger, for the applicant and Mr M Millington, of counsel, instructed by Derby City Council for the respondent at a fact-finding hearing held at Field House on 4 August 2026
AND UPON the Upper Tribunal handing down judgment on 13 August 2026 in the absence of the parties
IT IS DECLARED THAT:
(1) The applicant was born on 26 August 2002.
IT IS ORDERED THAT:
(1) The application for judicial review is dismissed for the reasons given in the judgment.
(2) The applicant shall pay the respondent’s costs of the claim, not to be enforced without the permission of the Upper Tribunal, and subject to a detailed assessment if not agreed and subject to a determination of his ability to pay such costs pursuant to section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
(3) There shall be a detailed assessment of the applicant’s publicly funded costs.
D O’Callaghan
Upper Tribunal Judge
Immigration and Asylum Chamber
13 August 2026
The date on which this order was sent is given below
17 August 2026
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):
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-2025-LON-004541
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
13 August 2026
Before:
UPPER TRIBUNAL JUDGE O’CALLAGHAN
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
CSN
Applicant
- and -
DERBY CITY COUNCIL
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr D Bazini
(instructed by Luke & Bridger Law), for the applicant
Mr M Millington
(instructed by Derby City Council), for the respondent
Hearing date: 4 August 2026
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge O’Callaghan
Introduction
1. This judgment follows a fact-finding hearing conducted in public law age assessment proceedings held at Field House on 4 August 2026. The sole issue of fact to be determined is the applicant’s date of birth that in turn will establish his age which is relevant to whether the respondent is subject to statutory duties under the Children Act 1989.
2. The applicant arrived in the United Kingdom on 13 April 2025 and presented himself to the authorities as an unaccompanied asylum-seeking child. He states that he was born on 26 August 2008 and consequently was aged 16 at the date of application and aged 17 at the date of hearing. The claim as to age is disputed by the respondent council which concluded, following a brief enquiry of age assessment conducted on 7 May 2025, that the applicant was clearly an adult based on his physical appearance and demeanour.
Anonymity
3. The High Court granted an application for anonymity by an Order sealed on 15 September 2025. I maintain that order, on account of the applicant having claimed asylum and that claim is yet to be determined on appeal.
Factual background
4. The applicant is a national of Vietnam. He details that he attended school from the ages of six to eleven and left school in 2019 to look after his grandmother. He asserts a well-founded fear of persecution at the hands of money lenders in Vietnam. The Home Office refused the application for international protection by a decision dated 16 December 2025. The applicant has filed an appeal with the First-tier Tribunal that has not presently progressed to a hearing.
(i) Personal history
5. In his first witness statement for these proceedings, dated 9 July 2025, the applicant explains that he lived with his grandmother and upon her death his parents sold him in October 2024 to a person to whom they were debt as they had no money.
(ii) Home Office assessment as to age
6. As to his age, having claimed asylum on 13 April 2025, the Home Office concluded on the same day that the applicant was born on 26 August 1998 and aged 26. Reliance was placed upon his physical appearance and demeanour. Consequently, the applicant was sent to adult accommodation in the respondent’s area.
(iii) Journey to the United Kingdom
7. At his initial contact interview on 13 April 2025, the applicant informed the Home Office that he was initially ‘sold’, or smuggled, to Cambodia, having left Vietnam in October 2024. He remained in Cambodia for six months before travelling to Thailand by car where he remained for one day before flying to France. He was provided with documentation that was taken from him when he arrived in France. He remained in the country for ten days before crossing the Channel.
(iv) Brief enquiry of age assessment
8. Two social workers undertook a brief enquiry of age assessment on behalf of the respondent at the applicant’s accommodation on 7 May 2025. An interpreter attended by telephone. The applicant is recorded in the handwritten social workers’ notes as explaining that his grandmother informed him of his date of birth when aged six and he calculated his age from this information. He confirmed that he did have a birth certificate, but he was sold and is not in possession of the document. He could not recall any details from the document as he had never seen it.
9. By its outcome decision of the same date the respondent concluded that the applicant was an adult. The social workers recorded, inter alia:
‘We believe you are clearly an adult in physical appearance and demeanour. We are both experienced workers who have worked with families and children and you do not present like any other child we have worked with. You have adult facial features and an adult-like confident demeanour. You have not provided any documentary evidence that you are a child.’
10. The applicant is recorded as disagreeing with the decision.
11. He explains in his first witness statement that he could not understand the interpreter because of a poor telephone connection, he was scared and worried during the interview. He just wanted the social workers to believe him. He complains that there was no appropriate adult present.
(v) Understanding of personal age
12. By his first witness statement the applicant explains that when he first started school, his grandmother informed him as to his date of birth because a teacher had requested the students to write down their dates of birth, but he was unaware of his. His grandmother informed him in the Western Gregorian calendar that he was born on 26 August 2008. This was the only time he was informed as to his age by a family member.
13. He confirmed by his first statement, at paragraph 5:
‘... I do not have any documents that show my age or date of birth, and I do not think I have ever had these. If I have these, I have never seen them and they will still be in Vietnam.’
14. In his second witness statement the applicant details, inter alia, that his first statement may give the impression that he was only informed once as to his date of birth and age. This is not what he meant. The first time he learned of this information was when he spoke to his grandmother after the teacher’s request. Whilst at school, other children in his class would ask him how old he was, and when his birthday was. He would compare his age with the children and talk about who was older or younger. The applicant states, ‘[t]hese conversations helped me remember my age and my date of birth.’
15. He further confirms that his grandmother would sometimes inform him that he was born in the Year of the Mouse, and she would often say that he was like a mouse because he was quick and active. He recalls his grandmother saying this many times as he was growing up, which helped him remember his date of birth.
16. In his second statement, the applicant confirms that he did not celebrate birthdays or special occasions with parties or presents. However, every year his grandmother would usually cook delicious food and tell him that it was his birthday. He also recalls attending a birthday party for a friend one year and the children discussing their ages and dates of birth.
17. He recalls reading his school reports which included personal information such as his date of birth. He explains:
‘Looking back now, there were several things that helped me remember my date of birth, not just the first conversation with my grandmother when I was 6 years old.
It would therefore be more accurate to say that I first learned my date of birth from my grandmother when I was 6 years old and continued to remember it through reminders from my grandmother, annual recognition of my birthday, school documents, my birth certificate, and conversations with other children.’
18. As to his birth certificate, whilst observing that he stated he ‘did not think’ he had any documents showing his age or date of birth in his first interview, he clarified that his grandmother kept important papers and documents in a box and he believes his birth certificate was kept there. He never had possession of it himself, but he knew that it existed and ‘I remember seeing it amongst the papers that my grandmother kept’. He remembers seeing it ‘once or twice’ and knew it was his birth certificate.
The application for judicial review
19. On 30 May 2025, the applicant’s solicitors served a Letter Before Action pursuant to the Pre-Action Protocol for Judicial Review on the respondent, challenging the respondent’s age decision and the failure of the respondent to afford the applicant with support and services as a Looked After Child, under the Children Act 1989. The respondent maintained her position by her Pre-Action Protocol response, dated 12 June 2025.
20. The applicant lodged these proceedings and following refusal of permission at the papers stage, permission to apply for judicial review was granted by HHJ Williams, sitting as a Judge of the High Court, following an oral hearing on 12 December 2025. The claim was subsequently transferred to the Upper Tribunal (Immigration and Asylum Chamber).
The law
21. Age assessments are carried out to determine whether young people without identity documents are in fact children and so entitled to services provided by local authorities.
22. The obligation to conduct an age assessment is a Tameside duty, i.e., for a local authority to equip itself with the necessary facts to decide whether to exercise its statutory functions under the 1989 Act.
23. There is no statutorily prescribed way to identify how local authorities are obliged to carry out age assessments. The law proceeds on the basis that the most reliable means of assessing the age of a child or young person in circumstances where no documentary evidence is available is by the so-called ‘Merton compliant’ assessment: R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin), [2003] 4 All ER 280.
24. Relevant requirements were summarised by Swift J in R (HAM) v London Borough of Brent [2022] EWHC 1924 (Admin), [2022] Imm AR 1608:
• When it is necessary to determine whether a person is a child (i.e., under eighteen years old) for the purposes of its duties under the 1989 Act, there is no burden of proof, and so no assumption that a person is a child or an adult, at [10].
• It is likely to be rare that a fair assessment would be based on physical appearance and demeanour alone, [10]. However, there will be cases where physical appearance and demeanour will suffice, [32].
• An age assessment must be fair in function and substance, not merely form, [14]. What is fair will depend on the circumstances of the case.
• An assessment may, depending on the facts of the case, be unfair if an appropriate adult is not present, [20].
• Where further enquiry as to a young person’s age entails interviews, these interviews must be undertaken fairly. What is necessary for this purpose must take account of the circumstances of the person, [32].
• While the question of whether a process was fair is a matter for the Tribunal, it is for the social workers to justify why such steps were taken or not taken, [34].
25. The question at this fact-finding stage is whether the applicant was at the relevant time a child for the purposes of section 20 of the Children Act 1989. This is a question of fact which must ultimately be decided by this Tribunal, and the process must be one of assessment which involves the application of judgment on a variety of factors and however difficult it may be to resolve the issue it admits of only one answer. Having been invited to make a decision upon jurisdictional fact this Tribunal 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. Consequently, the assessment required is to be undertaken on its own terms. In this matter I am therefore required to decide whether, on a balance of probability, the applicant was a young person aged under eighteen at the date of assessment.
26. I proceed on the basis that it may well be inappropriate to expect conclusive evidence of age from the applicant in circumstances in which he has arrived unaccompanied and without original identity documents. The nature of the evaluation of evidence depends upon the particular facts of the case. In the absence of any corroborative documentary evidence as to age, the starting point is the credibility of the evidence placed before the Tribunal, as confirmed by Aikens LJ in R (AE) v London Borough of Croydon [2012] EWCA Civ 547, at [23].
27. The Tribunal is not confined to choosing between the positions of the parties: R (W) v London Borough of Croydon [2012] EWHC 1130, at [3].
The hearing
28. At the hearing, the Tribunal heard oral evidence from the applicant who adopted his two witness statements dated 9 July 2025 and 20 July 2026 as his evidence in chief. He was cross-examined by Mr Millington. No other witnesses were called. Mr Millington and Mr Bazini made submissions to the panel at the conclusion of the applicant’s evidence. I am aided by very helpful skeleton arguments prepared by counsel.
29. The evidence of the applicant and the advocates’ submissions are referred to in my judgment where it is necessary to do so to explain my reasoning.
Discussion and resolution of fact
30. My primary focus must be on the applicant’s account of how he knows his age and date of birth, although it is permissible to have regard to credibility more generally as long as the primary focus is not forgotten and care is taken to ensure that particular importance is afforded to the credibility of evidence in relation to his age. In these proceedings, it is not this Tribunal’s role to reach findings concerning the applicant’s claim for asylum.
31. There is little if any objective evidence to assist the Tribunal in the factual assessment of the applicant’s age. The decision of the respondent was reached based on the applicant’s physical appearance and demeanour. Except in clear cases, where it is obvious that a person is aged under or over 18 and so there is no need for prolonged enquiry, the assessment of age should not be determined solely on the basis of an applicant’s appearance. I observe that almost all evidence of physical characteristics is likely to be of limited value. As for demeanour, this is a notoriously unreliable gauge of age and by itself constitutes only somewhat fragile material. As observed by Thornton J in AB v Kent County Council [2020] EWHC 109 (Admin) demeanour will generally have to be viewed together with other matters including inconsistencies in an account of how the applicant knows their age.
32. I accept the evidence of the applicant’s solicitor, Mr Stuart Luke, that on inspection of the applicant’s only phone he has no social media accounts save for YouTube and WhatsApp. The YouTube account is unregistered and on inspection the WhatsApp account was used solely by the applicant to communicate with his lawyers. A Facebook account present on the phone is confirmed to belong to the phone’s previous owner and not the applicant.
33. In the absence in this matter of any other evidence such as a full Merton compliant age assessment, relevant social media evidence or the evidence of third parties with whom the applicant has associated since he came to the United Kingdom, the assessment of the applicant’s age is predominantly informed by the credibility of his account, in particular his account relating to his age and date of birth. The credibility of an applicant is ‘highly material, if not fundamental, to the fair and proper assessment of his age’: R (K) v Birmingham City Council [2011] EWHC 1559 (Admin), Owen J at [77].
34. In relation to the various inconsistencies in the applicant’s evidence, I properly take into account the fact that a person may lie for reasons unrelated to age but may be related to their claims for protection or the reasons they had to leave their country of origin. I have placed into my assessment the considered submissions of Mr Bazini who succinctly noted the applicant’s consistency as to his date of birth throughout the asylum process. I am also mindful of Mr Bazini’s submission as to the benefit of the doubt. Though not arising from an age assessment consideration, I note the observation of the Upper Tribunal in KS (benefit of the doubt) [2014] UKUT 00552 (IAC), [2015] Imm AR 419, at [106]-[107] as to a child’s understanding and recollection of events.
35. However, even with the application of the benefit of the doubt, I conclude the applicant to have been inconsistent and untruthful on core matters relating to his claim to be a child.
36. It is plausible that a child would not know their age or date of birth at the time they first attended school. The development of such understanding evolves in clear cognitive stages, and it takes time for a child to understand age as a fixed, linear, and irreversible progression. Consequently, early important markers are birthdays, but for a time at early school age, even though a child may be learning ‘numbers’, increasing maturity is required to calculate age gaps. A teacher may ask a class of six-year-olds to give their date of birth with a reasonable expectation of an answer, as this can be recited at a young age without cognitive understanding of what a date and a calendar time mean. I also accept as plausible that when asked such question, a child may approach a parent or guardian for the answer as to when they were born.
37. It is therefore plausible that a teacher asked the applicant for his date of birth at school, when the applicant was aged six, and he approached his grandmother for the answer. I also accept as plausible that the answer was given in the Gregorian calendar and not in the lunar calendar. The former is the common form of official recording in respect of birth in Vietnam, though birthdays may be tracked in the latter.
38. A question that arises is how the applicant remembered his birth date in the Gregorian calendar from being informed of it once at the age of six. This is an age where a child’s memory is developing but may still be affected by infantile or childhood amnesia where specific daily memories will fade and most are too early in life to crystalise. In his interview with the social workers, the applicant is recorded in the accompanying handwritten notes as recounting only one occasion when he was informed by his grandmother as to his date of birth and having never seen his birth certificate. Whilst he now contends that he did not understand the interpreter because of the poor sound quality over the telephone and is concerned that there was incorrect translation of what he said, I observe that he confirms the same circumstances as to how he knows his date of birth in his first witness statement. At the time of this statement, in July 2025, he was aware that the respondent did not accept his stated date of birth. On the account provided to the respondent’s social workers and by his first witness statement, the applicant’s case is entirely founded upon one conversation with his grandmother, when aged six, where he was informed of his date of birth in the Gregorian calendar and he never saw at any time any official confirmation of his date of birth. It is notable that in his first witness statement the applicant confirms, ‘I do not use the calendar, and I am not sure whether I know how to do this as I have never needed to do so.’ I also observe the applicant’s confirmation in the same witness statement that he did not celebrate birthdays or special occasions.
39. The applicant’s evidence develops materially in his second witness statement. This is not by itself adverse to the applicant’s case as often further evidence is provided in proceedings. He now provides further detail as to when he discussed his age and date of birth with children whilst at school, and his grandmother informing him on occasion that he was born in the Year of the Mouse which broadly corresponds with his claimed date of birth. He also states that he had seen his birth certificate ‘once or twice’ but had not carefully examined it. He knew it was his birth certificate as it ‘showed’ his date of birth. By this statement he accepts:
‘It would therefore be more accurate to say that I had seen [the birth certificate] briefly, but I never properly inspected it myself and it always remained in my grandmother’s possession.’
40. In his oral evidence, the applicant accepted that when preparing and signing his first witness statement he understood that it was an important document, and he was required to get the detail correct. He acknowledged that the statement records him confirming that he had never seen a document showing his age or his date of birth. He also accepted stating that he does not use a calendar and is not sure how to use one as he has never needed to. He confirmed that he was not asked to use a Gregorian calendar at school and there was no calendar present in his classroom. He accepted that he was only asked on one occasion by his teacher for his date of birth, when aged six. He acknowledged that his subsequent evidence as to his grandmother marking his birthday every year and providing delicious food on this day was not addressed in his first statement. As to why he did not raise this with the social workers he responded that he was not asked. When asked by Mr Millington as to discussion of age with school friends, the applicant responded, “I knew some of my friends’ year of birth, so they were older than me, or if that person was born in the month before, they were older than me.” As to his birth certificate, the applicant stated that he had seen it once or twice but had not read the date of birth detailed on the document.
41. The applicant relies upon a second witness statement from his solicitor, Mr Luke, dated 13 July 2026, in which an opinion is expressed that where a young person correctly identifies information relating to the Chinese zodiac or the year associated with a particular zodiac sign, a question which is not normally prepared for before an age assessment interview, ‘this is more likely to indicate a genuine answer based upon their own knowledge rather than a rehearsed response. Given the unusual nature of the question, it would be difficult to suggest that a claimant has specifically prepared for or anticipated being asked such a question in advance ... this is factor which may be consistent with the claimant providing truthful information regarding their date of birth and age.’
42. I observe the guidance of the Supreme Court in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6; [2016] 1 WLR 597, at [43]-[44], relevant in deciding whether evidence is properly described as ‘expert evidence’. Though a well-respected lawyer working in the field of age assessment, Mr Luke is not expert in the scientific and legal field of forensic psychology, or the sub-field of investigative psychology, which are concerned with the ability of people to remember events, communicate details and give testimony as well as evaluating the truth and quality of witness evidence. I therefore give little weight to Mr Luke’s evidence, save that it repeats Mr Bazini’s submission that the applicant correctly provided the Chinese zodiac year relevant to his stated date of birth.
43. Applying the balance of probabilities, I conclude that the applicant is not truthful as to his date of birth. He was initially clear that he was informed of the date once, when aged six, an age where it was unlikely to crystalise in his mind over time. He did not celebrate his birthday, he did not use a calendar nor did he know how to, and he never saw his birth certificate. Consequently, there were no subsequent events that would permit him to recall his date of birth as his cognitive skills developed through maturity. I find that the applicant was aware of the implausibility of his remembering this one conversation at an early age and subsequent efforts have been designed to address this implausibility. His evidence as to the existence of a birth certificate has been inconsistent. He did not think he ever had such document, but if he did, he never saw it. This changed into his believing that his grandmother kept it with her documents, and he ‘knew that it existed’ because he had seen it once or twice amongst his grandmother’s papers. There is inconsistent evidence as to whether the applicant inspected the birth certificate and was aware that it showed his date of birth, as detailed in his second witness statement, or he had not inspected it and not seen his date of birth on the document as confirmed in his oral evidence. Additionally, he now recalls talking to school friends about their respective ages and dates of birth, as well as his date of birth being on his school reports and though not celebrating his birthday, his grandmother would inform him that it was his birthday and prepare delicious food. I find that the change in evidence was an ineffectual effort to address the implausibility of his original contention that he remembered his date of birth in the Gregorian calendar from one conversation when aged six. If these events were true, I find on balance that they would have been shared with the social workers and detailed in the applicant’s first witness statement.
44. In the circumstances, on balance, the applicant is not truthful when asserting that he was born on 26 August 2008.
45. The applicant knows his true date of birth but has decided not to provide it to the Home Office, the respondent or to this Tribunal. The respondent identifies no potential age or date of birth save that the applicant is aged over 18.
46. Taking into account the inconsistencies in the applicant’s evidence and his efforts to hide his true age, as well as his demeanour both at the hearing and also recorded by the Home Office and the respondent, I find the applicant to be aged significantly over 18. I do not find that he is soon to be 28 as contended by the Home Office. Giving some, but limited, weight to my view of his appearance before me, combined with the issues addressed above, I find that the applicant is presently aged 23. As for the day and month of his birth, I revert to the default of 26 August. I therefore find that the applicant was born on 26 August 2002.
Summary of decision
47. It is declared that the applicant’s date of birth is 26 August 2002.
48. He was aged 22 at the date of the respondent’s assessment on 7 May 2025.
49. He was aged 23 at the date of the hearing before this Tribunal on 4 August 2026.
~~~~0~~~~
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
on the application of
CSN
Applicant
and
Derby City Council
Respondent
ORDER
BEFORE Upper Tribunal Judge O’Callaghan
HAVING considered all documents lodged and having heard Mr D Bazini of counsel, instructed by Luke and Bridger, for the applicant and Mr M Millington, of counsel, instructed by Derby City Council for the respondent at a fact-finding hearing held at Field House on 4 August 2026
AND UPON the Upper Tribunal handing down judgment on 13 August 2026 in the absence of the parties
IT IS DECLARED THAT:
(1) The applicant was born on 26 August 2002.
IT IS ORDERED THAT:
(1) The application for judicial review is dismissed for the reasons given in the judgment.
(2) The applicant shall pay the respondent’s costs of the claim, not to be enforced without the permission of the Upper Tribunal, and subject to a detailed assessment if not agreed and subject to a determination of his ability to pay such costs pursuant to section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
(3) There shall be a detailed assessment of the applicant’s publicly funded costs.
D O’Callaghan
Upper Tribunal Judge
Immigration and Asylum Chamber
13 August 2026
The date on which this order was sent is given below
17 August 2026
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):
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-2025-LON-004541
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
13 August 2026
Before:
UPPER TRIBUNAL JUDGE O’CALLAGHAN
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
CSN
Applicant
- and -
DERBY CITY COUNCIL
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr D Bazini
(instructed by Luke & Bridger Law), for the applicant
Mr M Millington
(instructed by Derby City Council), for the respondent
Hearing date: 4 August 2026
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge O’Callaghan
Introduction
1. This judgment follows a fact-finding hearing conducted in public law age assessment proceedings held at Field House on 4 August 2026. The sole issue of fact to be determined is the applicant’s date of birth that in turn will establish his age which is relevant to whether the respondent is subject to statutory duties under the Children Act 1989.
2. The applicant arrived in the United Kingdom on 13 April 2025 and presented himself to the authorities as an unaccompanied asylum-seeking child. He states that he was born on 26 August 2008 and consequently was aged 16 at the date of application and aged 17 at the date of hearing. The claim as to age is disputed by the respondent council which concluded, following a brief enquiry of age assessment conducted on 7 May 2025, that the applicant was clearly an adult based on his physical appearance and demeanour.
Anonymity
3. The High Court granted an application for anonymity by an Order sealed on 15 September 2025. I maintain that order, on account of the applicant having claimed asylum and that claim is yet to be determined on appeal.
Factual background
4. The applicant is a national of Vietnam. He details that he attended school from the ages of six to eleven and left school in 2019 to look after his grandmother. He asserts a well-founded fear of persecution at the hands of money lenders in Vietnam. The Home Office refused the application for international protection by a decision dated 16 December 2025. The applicant has filed an appeal with the First-tier Tribunal that has not presently progressed to a hearing.
(i) Personal history
5. In his first witness statement for these proceedings, dated 9 July 2025, the applicant explains that he lived with his grandmother and upon her death his parents sold him in October 2024 to a person to whom they were debt as they had no money.
(ii) Home Office assessment as to age
6. As to his age, having claimed asylum on 13 April 2025, the Home Office concluded on the same day that the applicant was born on 26 August 1998 and aged 26. Reliance was placed upon his physical appearance and demeanour. Consequently, the applicant was sent to adult accommodation in the respondent’s area.
(iii) Journey to the United Kingdom
7. At his initial contact interview on 13 April 2025, the applicant informed the Home Office that he was initially ‘sold’, or smuggled, to Cambodia, having left Vietnam in October 2024. He remained in Cambodia for six months before travelling to Thailand by car where he remained for one day before flying to France. He was provided with documentation that was taken from him when he arrived in France. He remained in the country for ten days before crossing the Channel.
(iv) Brief enquiry of age assessment
8. Two social workers undertook a brief enquiry of age assessment on behalf of the respondent at the applicant’s accommodation on 7 May 2025. An interpreter attended by telephone. The applicant is recorded in the handwritten social workers’ notes as explaining that his grandmother informed him of his date of birth when aged six and he calculated his age from this information. He confirmed that he did have a birth certificate, but he was sold and is not in possession of the document. He could not recall any details from the document as he had never seen it.
9. By its outcome decision of the same date the respondent concluded that the applicant was an adult. The social workers recorded, inter alia:
‘We believe you are clearly an adult in physical appearance and demeanour. We are both experienced workers who have worked with families and children and you do not present like any other child we have worked with. You have adult facial features and an adult-like confident demeanour. You have not provided any documentary evidence that you are a child.’
10. The applicant is recorded as disagreeing with the decision.
11. He explains in his first witness statement that he could not understand the interpreter because of a poor telephone connection, he was scared and worried during the interview. He just wanted the social workers to believe him. He complains that there was no appropriate adult present.
(v) Understanding of personal age
12. By his first witness statement the applicant explains that when he first started school, his grandmother informed him as to his date of birth because a teacher had requested the students to write down their dates of birth, but he was unaware of his. His grandmother informed him in the Western Gregorian calendar that he was born on 26 August 2008. This was the only time he was informed as to his age by a family member.
13. He confirmed by his first statement, at paragraph 5:
‘... I do not have any documents that show my age or date of birth, and I do not think I have ever had these. If I have these, I have never seen them and they will still be in Vietnam.’
14. In his second witness statement the applicant details, inter alia, that his first statement may give the impression that he was only informed once as to his date of birth and age. This is not what he meant. The first time he learned of this information was when he spoke to his grandmother after the teacher’s request. Whilst at school, other children in his class would ask him how old he was, and when his birthday was. He would compare his age with the children and talk about who was older or younger. The applicant states, ‘[t]hese conversations helped me remember my age and my date of birth.’
15. He further confirms that his grandmother would sometimes inform him that he was born in the Year of the Mouse, and she would often say that he was like a mouse because he was quick and active. He recalls his grandmother saying this many times as he was growing up, which helped him remember his date of birth.
16. In his second statement, the applicant confirms that he did not celebrate birthdays or special occasions with parties or presents. However, every year his grandmother would usually cook delicious food and tell him that it was his birthday. He also recalls attending a birthday party for a friend one year and the children discussing their ages and dates of birth.
17. He recalls reading his school reports which included personal information such as his date of birth. He explains:
‘Looking back now, there were several things that helped me remember my date of birth, not just the first conversation with my grandmother when I was 6 years old.
It would therefore be more accurate to say that I first learned my date of birth from my grandmother when I was 6 years old and continued to remember it through reminders from my grandmother, annual recognition of my birthday, school documents, my birth certificate, and conversations with other children.’
18. As to his birth certificate, whilst observing that he stated he ‘did not think’ he had any documents showing his age or date of birth in his first interview, he clarified that his grandmother kept important papers and documents in a box and he believes his birth certificate was kept there. He never had possession of it himself, but he knew that it existed and ‘I remember seeing it amongst the papers that my grandmother kept’. He remembers seeing it ‘once or twice’ and knew it was his birth certificate.
The application for judicial review
19. On 30 May 2025, the applicant’s solicitors served a Letter Before Action pursuant to the Pre-Action Protocol for Judicial Review on the respondent, challenging the respondent’s age decision and the failure of the respondent to afford the applicant with support and services as a Looked After Child, under the Children Act 1989. The respondent maintained her position by her Pre-Action Protocol response, dated 12 June 2025.
20. The applicant lodged these proceedings and following refusal of permission at the papers stage, permission to apply for judicial review was granted by HHJ Williams, sitting as a Judge of the High Court, following an oral hearing on 12 December 2025. The claim was subsequently transferred to the Upper Tribunal (Immigration and Asylum Chamber).
The law
21. Age assessments are carried out to determine whether young people without identity documents are in fact children and so entitled to services provided by local authorities.
22. The obligation to conduct an age assessment is a Tameside duty, i.e., for a local authority to equip itself with the necessary facts to decide whether to exercise its statutory functions under the 1989 Act.
23. There is no statutorily prescribed way to identify how local authorities are obliged to carry out age assessments. The law proceeds on the basis that the most reliable means of assessing the age of a child or young person in circumstances where no documentary evidence is available is by the so-called ‘Merton compliant’ assessment: R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin), [2003] 4 All ER 280.
24. Relevant requirements were summarised by Swift J in R (HAM) v London Borough of Brent [2022] EWHC 1924 (Admin), [2022] Imm AR 1608:
• When it is necessary to determine whether a person is a child (i.e., under eighteen years old) for the purposes of its duties under the 1989 Act, there is no burden of proof, and so no assumption that a person is a child or an adult, at [10].
• It is likely to be rare that a fair assessment would be based on physical appearance and demeanour alone, [10]. However, there will be cases where physical appearance and demeanour will suffice, [32].
• An age assessment must be fair in function and substance, not merely form, [14]. What is fair will depend on the circumstances of the case.
• An assessment may, depending on the facts of the case, be unfair if an appropriate adult is not present, [20].
• Where further enquiry as to a young person’s age entails interviews, these interviews must be undertaken fairly. What is necessary for this purpose must take account of the circumstances of the person, [32].
• While the question of whether a process was fair is a matter for the Tribunal, it is for the social workers to justify why such steps were taken or not taken, [34].
25. The question at this fact-finding stage is whether the applicant was at the relevant time a child for the purposes of section 20 of the Children Act 1989. This is a question of fact which must ultimately be decided by this Tribunal, and the process must be one of assessment which involves the application of judgment on a variety of factors and however difficult it may be to resolve the issue it admits of only one answer. Having been invited to make a decision upon jurisdictional fact this Tribunal 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. Consequently, the assessment required is to be undertaken on its own terms. In this matter I am therefore required to decide whether, on a balance of probability, the applicant was a young person aged under eighteen at the date of assessment.
26. I proceed on the basis that it may well be inappropriate to expect conclusive evidence of age from the applicant in circumstances in which he has arrived unaccompanied and without original identity documents. The nature of the evaluation of evidence depends upon the particular facts of the case. In the absence of any corroborative documentary evidence as to age, the starting point is the credibility of the evidence placed before the Tribunal, as confirmed by Aikens LJ in R (AE) v London Borough of Croydon [2012] EWCA Civ 547, at [23].
27. The Tribunal is not confined to choosing between the positions of the parties: R (W) v London Borough of Croydon [2012] EWHC 1130, at [3].
The hearing
28. At the hearing, the Tribunal heard oral evidence from the applicant who adopted his two witness statements dated 9 July 2025 and 20 July 2026 as his evidence in chief. He was cross-examined by Mr Millington. No other witnesses were called. Mr Millington and Mr Bazini made submissions to the panel at the conclusion of the applicant’s evidence. I am aided by very helpful skeleton arguments prepared by counsel.
29. The evidence of the applicant and the advocates’ submissions are referred to in my judgment where it is necessary to do so to explain my reasoning.
Discussion and resolution of fact
30. My primary focus must be on the applicant’s account of how he knows his age and date of birth, although it is permissible to have regard to credibility more generally as long as the primary focus is not forgotten and care is taken to ensure that particular importance is afforded to the credibility of evidence in relation to his age. In these proceedings, it is not this Tribunal’s role to reach findings concerning the applicant’s claim for asylum.
31. There is little if any objective evidence to assist the Tribunal in the factual assessment of the applicant’s age. The decision of the respondent was reached based on the applicant’s physical appearance and demeanour. Except in clear cases, where it is obvious that a person is aged under or over 18 and so there is no need for prolonged enquiry, the assessment of age should not be determined solely on the basis of an applicant’s appearance. I observe that almost all evidence of physical characteristics is likely to be of limited value. As for demeanour, this is a notoriously unreliable gauge of age and by itself constitutes only somewhat fragile material. As observed by Thornton J in AB v Kent County Council [2020] EWHC 109 (Admin) demeanour will generally have to be viewed together with other matters including inconsistencies in an account of how the applicant knows their age.
32. I accept the evidence of the applicant’s solicitor, Mr Stuart Luke, that on inspection of the applicant’s only phone he has no social media accounts save for YouTube and WhatsApp. The YouTube account is unregistered and on inspection the WhatsApp account was used solely by the applicant to communicate with his lawyers. A Facebook account present on the phone is confirmed to belong to the phone’s previous owner and not the applicant.
33. In the absence in this matter of any other evidence such as a full Merton compliant age assessment, relevant social media evidence or the evidence of third parties with whom the applicant has associated since he came to the United Kingdom, the assessment of the applicant’s age is predominantly informed by the credibility of his account, in particular his account relating to his age and date of birth. The credibility of an applicant is ‘highly material, if not fundamental, to the fair and proper assessment of his age’: R (K) v Birmingham City Council [2011] EWHC 1559 (Admin), Owen J at [77].
34. In relation to the various inconsistencies in the applicant’s evidence, I properly take into account the fact that a person may lie for reasons unrelated to age but may be related to their claims for protection or the reasons they had to leave their country of origin. I have placed into my assessment the considered submissions of Mr Bazini who succinctly noted the applicant’s consistency as to his date of birth throughout the asylum process. I am also mindful of Mr Bazini’s submission as to the benefit of the doubt. Though not arising from an age assessment consideration, I note the observation of the Upper Tribunal in KS (benefit of the doubt) [2014] UKUT 00552 (IAC), [2015] Imm AR 419, at [106]-[107] as to a child’s understanding and recollection of events.
35. However, even with the application of the benefit of the doubt, I conclude the applicant to have been inconsistent and untruthful on core matters relating to his claim to be a child.
36. It is plausible that a child would not know their age or date of birth at the time they first attended school. The development of such understanding evolves in clear cognitive stages, and it takes time for a child to understand age as a fixed, linear, and irreversible progression. Consequently, early important markers are birthdays, but for a time at early school age, even though a child may be learning ‘numbers’, increasing maturity is required to calculate age gaps. A teacher may ask a class of six-year-olds to give their date of birth with a reasonable expectation of an answer, as this can be recited at a young age without cognitive understanding of what a date and a calendar time mean. I also accept as plausible that when asked such question, a child may approach a parent or guardian for the answer as to when they were born.
37. It is therefore plausible that a teacher asked the applicant for his date of birth at school, when the applicant was aged six, and he approached his grandmother for the answer. I also accept as plausible that the answer was given in the Gregorian calendar and not in the lunar calendar. The former is the common form of official recording in respect of birth in Vietnam, though birthdays may be tracked in the latter.
38. A question that arises is how the applicant remembered his birth date in the Gregorian calendar from being informed of it once at the age of six. This is an age where a child’s memory is developing but may still be affected by infantile or childhood amnesia where specific daily memories will fade and most are too early in life to crystalise. In his interview with the social workers, the applicant is recorded in the accompanying handwritten notes as recounting only one occasion when he was informed by his grandmother as to his date of birth and having never seen his birth certificate. Whilst he now contends that he did not understand the interpreter because of the poor sound quality over the telephone and is concerned that there was incorrect translation of what he said, I observe that he confirms the same circumstances as to how he knows his date of birth in his first witness statement. At the time of this statement, in July 2025, he was aware that the respondent did not accept his stated date of birth. On the account provided to the respondent’s social workers and by his first witness statement, the applicant’s case is entirely founded upon one conversation with his grandmother, when aged six, where he was informed of his date of birth in the Gregorian calendar and he never saw at any time any official confirmation of his date of birth. It is notable that in his first witness statement the applicant confirms, ‘I do not use the calendar, and I am not sure whether I know how to do this as I have never needed to do so.’ I also observe the applicant’s confirmation in the same witness statement that he did not celebrate birthdays or special occasions.
39. The applicant’s evidence develops materially in his second witness statement. This is not by itself adverse to the applicant’s case as often further evidence is provided in proceedings. He now provides further detail as to when he discussed his age and date of birth with children whilst at school, and his grandmother informing him on occasion that he was born in the Year of the Mouse which broadly corresponds with his claimed date of birth. He also states that he had seen his birth certificate ‘once or twice’ but had not carefully examined it. He knew it was his birth certificate as it ‘showed’ his date of birth. By this statement he accepts:
‘It would therefore be more accurate to say that I had seen [the birth certificate] briefly, but I never properly inspected it myself and it always remained in my grandmother’s possession.’
40. In his oral evidence, the applicant accepted that when preparing and signing his first witness statement he understood that it was an important document, and he was required to get the detail correct. He acknowledged that the statement records him confirming that he had never seen a document showing his age or his date of birth. He also accepted stating that he does not use a calendar and is not sure how to use one as he has never needed to. He confirmed that he was not asked to use a Gregorian calendar at school and there was no calendar present in his classroom. He accepted that he was only asked on one occasion by his teacher for his date of birth, when aged six. He acknowledged that his subsequent evidence as to his grandmother marking his birthday every year and providing delicious food on this day was not addressed in his first statement. As to why he did not raise this with the social workers he responded that he was not asked. When asked by Mr Millington as to discussion of age with school friends, the applicant responded, “I knew some of my friends’ year of birth, so they were older than me, or if that person was born in the month before, they were older than me.” As to his birth certificate, the applicant stated that he had seen it once or twice but had not read the date of birth detailed on the document.
41. The applicant relies upon a second witness statement from his solicitor, Mr Luke, dated 13 July 2026, in which an opinion is expressed that where a young person correctly identifies information relating to the Chinese zodiac or the year associated with a particular zodiac sign, a question which is not normally prepared for before an age assessment interview, ‘this is more likely to indicate a genuine answer based upon their own knowledge rather than a rehearsed response. Given the unusual nature of the question, it would be difficult to suggest that a claimant has specifically prepared for or anticipated being asked such a question in advance ... this is factor which may be consistent with the claimant providing truthful information regarding their date of birth and age.’
42. I observe the guidance of the Supreme Court in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6; [2016] 1 WLR 597, at [43]-[44], relevant in deciding whether evidence is properly described as ‘expert evidence’. Though a well-respected lawyer working in the field of age assessment, Mr Luke is not expert in the scientific and legal field of forensic psychology, or the sub-field of investigative psychology, which are concerned with the ability of people to remember events, communicate details and give testimony as well as evaluating the truth and quality of witness evidence. I therefore give little weight to Mr Luke’s evidence, save that it repeats Mr Bazini’s submission that the applicant correctly provided the Chinese zodiac year relevant to his stated date of birth.
43. Applying the balance of probabilities, I conclude that the applicant is not truthful as to his date of birth. He was initially clear that he was informed of the date once, when aged six, an age where it was unlikely to crystalise in his mind over time. He did not celebrate his birthday, he did not use a calendar nor did he know how to, and he never saw his birth certificate. Consequently, there were no subsequent events that would permit him to recall his date of birth as his cognitive skills developed through maturity. I find that the applicant was aware of the implausibility of his remembering this one conversation at an early age and subsequent efforts have been designed to address this implausibility. His evidence as to the existence of a birth certificate has been inconsistent. He did not think he ever had such document, but if he did, he never saw it. This changed into his believing that his grandmother kept it with her documents, and he ‘knew that it existed’ because he had seen it once or twice amongst his grandmother’s papers. There is inconsistent evidence as to whether the applicant inspected the birth certificate and was aware that it showed his date of birth, as detailed in his second witness statement, or he had not inspected it and not seen his date of birth on the document as confirmed in his oral evidence. Additionally, he now recalls talking to school friends about their respective ages and dates of birth, as well as his date of birth being on his school reports and though not celebrating his birthday, his grandmother would inform him that it was his birthday and prepare delicious food. I find that the change in evidence was an ineffectual effort to address the implausibility of his original contention that he remembered his date of birth in the Gregorian calendar from one conversation when aged six. If these events were true, I find on balance that they would have been shared with the social workers and detailed in the applicant’s first witness statement.
44. In the circumstances, on balance, the applicant is not truthful when asserting that he was born on 26 August 2008.
45. The applicant knows his true date of birth but has decided not to provide it to the Home Office, the respondent or to this Tribunal. The respondent identifies no potential age or date of birth save that the applicant is aged over 18.
46. Taking into account the inconsistencies in the applicant’s evidence and his efforts to hide his true age, as well as his demeanour both at the hearing and also recorded by the Home Office and the respondent, I find the applicant to be aged significantly over 18. I do not find that he is soon to be 28 as contended by the Home Office. Giving some, but limited, weight to my view of his appearance before me, combined with the issues addressed above, I find that the applicant is presently aged 23. As for the day and month of his birth, I revert to the default of 26 August. I therefore find that the applicant was born on 26 August 2002.
Summary of decision
47. It is declared that the applicant’s date of birth is 26 August 2002.
48. He was aged 22 at the date of the respondent’s assessment on 7 May 2025.
49. He was aged 23 at the date of the hearing before this Tribunal on 4 August 2026.
~~~~0~~~~