His Hon. Judge Dight CBE:
- The claimant is an unaccompanied asylum seeker who says that at all material times since arrival in the United Kingdom in the summer of 2023 he has been a child, whereas the defendant maintains that at all material times he has been an adult. The claimant says that he was aged 16 on arrival whereas the age assessment carried out on behalf of the defendant, giving him an assumed birth date of 1 January 2000, would put the claimant at around 23 on arrival. The claimant's challenges are not to the age assessment itself (he being out of time to bring such a challenge) but to the two refusals by the defendant to re-assess his age notwithstanding the provision by his solicitors of what is agreed to be new evidence.
- This is the hearing of, first, the claimant's renewed application for permission to bring judicial review proceedings in respect of what I describe below as "the First Decision" and, secondly, the substantive application for judicial review of what I describe below as "the Second Decision" for which permission has already been given.
- The claimant acts through a litigation friend, Erinç Argün Kayim, who works as a child advisor at the Refugee Council. The parties agreed that the proceedings should be anonymised and expedited and an order to that effect was made by the Single Judge on 18 December 2024.
- For the reasons which I set out below I granted permission at the commencement of the hearing to bring judicial review proceedings in respect of the First Decision and I therefore heard the substantive challenges to both decisions together.
The challenged decisions
- The decisions in issue are those dated 10 April 2024 ("the First Decision") and 30 April 2024 ("the Second Decision") by which the defendant declined to re-assess the claimant's age ("the Decisions") notwithstanding the fact that new evidence had been submitted in the form of an Afghan national identity card known as a taskira which says that it was issued on 16 April 2017 (stating that the claimant was aged 10 years old at the date of issue) together with two expert reports (the first submitted on 28 March 2024 and the second on 24 April 2024) confirming that in the view of the experts the taskira provided by the claimant was genuine. The taskira, if the information which it bears is accurate, therefore indicates that the claimant was indeed aged 16 on arrival in the UK. At the hearing before me the defendant confirmed what it had already said in the Decisions, namely that it did not challenge the genuineness of the taskira. The defendant's counsel also accepted the date on which it was stated to have been issued and that the discovery and production of the taskira was a relevant matter in considering whether to re-assess the claimant's age. The essence of the defendant's position is that the information contained in or on the taskira cannot be shown to have been compiled in an appropriate way and the document is not, therefore, a reliable piece of evidence as to the true age of the claimant and it therefore follows that receipt by the defendant of a copy of the taskira did not give rise to an obligation to re-assess the claimant's age.
- The claimant argues that the Decisions were unlawful because the defendant misapplied the applicable re-assessment test and thereby (i) departed from established case law, (ii) failed to follow applicable guidance and that in any event the Decisions were irrational.
- The claimant seeks a declaration that it was unlawful for the defendant to refuse to re-assess his age in light of the new evidence and a mandatory order for the defendant to carry out a re-assessment.
- This application does not turn on whether the original assessment was correct. The issue before me is whether the defendant was wrong, in the light of the new evidence, to refuse to undertake further enquiries and re-assess the claimant's age.
Initial procedural issues
- The claim form is dated 10 July 2024 and was lodged online by the claimant's solicitors on 10 July 2024. The claim form was accompanied by the witness statement of Edward Taylor, a solicitor with Osbornes Law, also dated 10 July 2024. The claim was not issued by the court until 6 August 2024. By its Acknowledgment of Service dated 11 September 2024, which was itself out of time, the defendant asserted that the claim had been brought out of time in relation to the First Decision and the claimant was guilty of excessive delay.
- By his order dated 18 December 2024 Mr Jonathan Moffett KC, sitting as a Deputy High Court Judge, refused permission to challenge the First Decision (on the grounds that the claim had been brought out of time) but granted permission to challenge the Second Decision as well as the applications for anonymity and expedition. The Deputy High Court Judge said, in his reasons for granting permission to challenge the Second Decision, that
"1. In light of the authorities referred to in the statement of facts and grounds, it is arguable that, absent any conscious decision to depart from the ADCS Guidance, the question for the Defendant was whether the new evidence provided by the Claimant might lead to a significantly different conclusion as to the Claimant's age.
2. Further, it is arguable that, by virtue of the verb "might", the question poses a relatively low threshold. On that basis, it is arguable that the Defendant did not ask itself the correct question or, if it did, reached a conclusion that it was not reasonably entitled to reach."
- By his notice dated 24 December 2024 the claimant sought to renew his application for permission to apply for judicial review in respect of the First Decision.
Delay
- The defendant submits that, based on the First Decision, which was made on 10 April 2024, the longstop period of three months for bringing judicial review proceedings expired on 10 July 2024 arguing that the claim was not brought until 6 August 2024 and was therefore out of time. However, the records of the Administrative Court Office show that the claim form was in fact filed at 14:08 on 10 July 2024 and the proceedings were therefore brought within three months of the First Decision despite the fact that the Administrative Court Office did not issue the claim until 6 August 2024.
- Pursuant to CPR 54.5(1) a claim form seeking judicial review "must be filed" promptly and in any event not later than three months after the grounds to make the claim first arose. Thus, the key question is the date on which the claim form was filed, not the date on which the office issued the claim. On that basis it was brought in time.
Permission to challenge the First Decision
- Given that the claim in respect of the First Decision was not brought out of time and that the reasons given by Mr Moffett to bring a challenge in respect of the Second Decision apply equally to the First Decision (but for the point on delay) and because, in my view, the Second Decision should be considered in the context of the First Decision having been made, I granted permission at the hearing for the claimant to proceed with its application for judicial review of the First Decision and heard both challenges together.
Background
- The claimant is a national of Afghanistan, where he was born. He arrived in the United Kingdom as an unaccompanied asylum seeker on or about 15 June 2023. He alleges that his father had worked for the previous Afghan Government as a result of which he, the father, was later kidnapped by the Taliban causing the claimant to flee because he was in fear of his own safety.
- On arrival the claimant claimed to be 15 years of age, although he was not able to provide his month or date of birth, saying that he had been 14 when he left Afghanistan. On 16 June 2023 the Home Office officers completed an "Unaccompanied child welfare form" following an interview with the claimant that afternoon in which they assessed the claimant as a minor and ascribed a date of birth of 1 January 2007 which gave him an age of 16 at that time.
- The claimant was then cared for and accommodated as a child by Kent County Council (albeit in Coventry) under section 20 of the Children's Act. Kent County Council concluded a Child and Family Assessment on 28 July 2023 and appeared to accept that the claimant was then 16 years of age on the grounds that it was a "proportionate assessment".
- On 15 August 2023 the claimant's care was transferred to the defendant's social services department which, through an agency called K&C Expert Assessments, carried out an age assessment interview over 2 days and concluded, in a detailed and lengthy written age assessment report dated 17 October 2023, that he was an adult. In paragraph 5.11.3 of their report the assessors said:
"It is the professional opinion of the [assessors], that [the claimant] is aged over 18 years old; therefore, he is legally an adult. Although it would be incredibly difficult to determine the exact age that [he] is, based upon the factors identified within this assessment, including his presentation, demeanour, and language skills, it would be estimated that [he] is likely to be around the age of 23 years old…"
The report stated that it was a "Merton" compliant age assessment, a reference to the decision in R (B) v Merton LBC [2003] EWHC 1689 (Admin) of Stanley Burnton J, as he then was. It is apparent from the overall tone of the assessment and from some of the specific comments (see para 5.10.2) that the assessors had doubts about the claimant's honesty and openness in providing relevant information and that played into their assessment of his age.
- One of the factors which the age assessors appeared to take into account against the claimant was the absence of a taskira. They recorded, in paragraph 5.10.8:
"[The claimant] reports that he has no identification documents with him in the UK, and he does not believe that he has a Tazkira. The Tazkira is the Afghanistan national identification document which all Afghan citizens are eligible for. Although it is recognised that the Tazkira is not an automatically issued document, it would be expected that, given [the claimant's] father's employment with the Afghanistan government, that he would have recognised the importance of acquiring such a document, particularly with the threats posed towards the family from the Taliban."
It is to be noted, however, that when the claimant did produce what was agreed to be his genuine taskira the defendant's position was that it was inherently unreliable, as appears from the correspondence cited below.
- In paragraph 5.11.3 of the age assessment the authors concluded that the claimant was "aged over 18 years old" and while acknowledging that it was difficult to ascribe an exact age he was "likely to be around the age of 23". I admit to having difficulty in understanding from the assessment how 23 was arrived at rather than, say, 19, 21 or 25. They gave him an estimated date of birth of 1 January 2000.
- As a result of the assessment the claimant was discharged from the defendant's care and moved to adult asylum accommodation provided by the Home Office in Crawley before being moved to North London where he currently resides.
- The claimant was able to retain solicitors in February 2024, but they were out of time to challenge the defendant's original age assessment and have focussed their efforts on their requests for a re-assessment in the light of his taskira.
- The claimant says that his uncle in Afghanistan had sent him a WhatsApp message, after the defendant's age assessment had been undertaken in October 2023, containing a photograph of the claimant's taskira, the original of which was said to be in Afghanistan. A colour copy of this document appears in the hearing bundle together with an English translation. The taskira states that it was issued by the Islamic Republic of Afghanistan, Ministry of Interior Affairs, Directorate of Census and Population on a date which corresponds to 16 April 2017 and in the box headed "Date of birth and age" the following information (here in translation) appears:
"Based on physical appearance age assessed as Ten (10) years old in 1396 (2017)"
The document bears a colour photograph of a boy who, it is accepted, is the claimant, although the age of the claimant in the photograph and at the date of creation of his taskira is not agreed. The document is signed and bears various official seals, including a seal over the photograph which appears to show that it was attached to the taskira at the time of its creation.
- The taskira was examined by Dr Jawad Zadeh, instructed by the claimant's solicitors, and the claimant was interviewed by him and a colleague. They prepared a report dated 22 March 2024 in which they concluded, for the reasons set out in that report in detailed and comprehensive terms, that "the Taskira issued to [the claimant] displays the correct hallmarks, correct components and the correct attribute of a genuine Taskira document issued by the Islamic Republic of Afghanistan." concluding "In my opinion, it is a genuine Taskira." As to the colour photograph the writers of the report said (para 48):
"A photograph of a young child has been affixed on the top left corner of this Taskira. This photo was compared by me and my colleague Palwasha Latif against a recent digital photo received from Obsbornes Law and also matches the facial features of the person we both interviewed on 04 March 2024. Photo change is one method of Taskira forgery. This scan does not show signs of photo change."
- In paragraph 51 of his report Dr Zadeh said in respect of the age assessment recorded in the taskira:
"This Taskira contains the correct age assessment. When dates of birth are unknown which is the case for many Afghan children, government of Afghanistan conducts an age assessment procedure and then records its findings in a cell assigned for age assessment. The age assessment section reads "Age assessed as TEN (10) years old". The contents and the phraseology of the age-assessment is correct."
- On 28 March 2024 the claimant's solicitors requested a re-assessment of their client's age based on the taskira and the report of Dr Zadeh copies of which they enclosed with their letter to the defendant.
The First Decision
- On 10 April 2024 in answer to the claimant's letter before claim the defendant made the First Decision by which it refused to re-assess the claimant's age, stating:
"5. Response to the proposed claim
The defendant's refusal to re-assess the Claimant's age
(a) The ADCS Age Assessment Guidance states that where the authority believe that "a significantly different conclusion might be reached and that the child or young person may be notably older or younger than initially assessed, then a new assessment should be undertaken" (see page 31 [of the Guidance]).
(b) In this case, the new information comprises:
(i) expert report that the claimant's tazkera is genuine:
(ii) photograph; and
(iii) scanned copy of tazkera
(c) The defendant has considered the new information and has concluded that it does not believe that it might reach a significantly different conclusion as to his age and that the claimant might be notably younger than 23 for the following reasons.
(d) Obtaining a tazkera (an Afghan identity document issued by the Population Registration Department) requires, amongst other things, the identity of the applicant to be verified. Where (as in the claimant's case), the applicant does not have a birth certificate, verification of identity requires the presentation of a tazkera of a male family member on the father's side and two testimonies are required, for example from a civil servant, recognised local leaders or religious dignitaries. It does not follow from the fact that the claimant's tazkera is a genuine document that the information which it conveys is genuine, particularly where its issue is based on oral testimony, there is no way of checking whether the correct procedure for issue was followed or the quality of the testimony relied on, the claimant (sic) has no knowledge of the circumstances surrounding its issue and was not present at its issue and, according to the Transparency International Corruption index, Afghanistan ranks the 150th (out of 180) most corrupt country in the world.
(e) The defendant has concluded a Merton-compliant age assessment. It has concluded that this meets with the requirements set out in R (on the application of BM v Hackney Borough Council [2016] EWHC 3338 (admin) and there is no basis on which to re-assess due to deficiency within the age assessment process.
(f) In these circumstances, the defendant's decision not to conduct a new assessment is not irrational."
- Under the heading "The defendant's assessment that the claimant is aged 23" the defendant said:
"…
(ii) he had not provided credible evidence to support his claimed age, basing this on one discussion with his mother:
(iii) the claimant was asked whether he had ever had a tazkera and responded that he had 'never tried to obtain this as it is not needed'. At ten years of age (assumed age) it is reasonable to expect that a child would remember having a photograph taken for his tazkera document. The claimant told Dr Zadeh…that he could not remember when the photograph was taken. The claimant did not share this information with the age assessors."
At the assessment the claimant had said to the defendant's assessors that he did not believe that he had a taskira. His position is that he became aware of it later, following the WhatsApp message from his uncle and that he did not remember the taskira or photograph being obtained at the time of his interview by the defendant. When he was later pressed on these questions by his solicitors, he asserted that he was able to recall the event and the role of his father in verifying his identity (see his solicitors' letter dated 23 May 2024), but that was long after the age assessment and seems to me to be of little value in itself.
- The defendant therefore concluded by stating that it "will not withdraw its decision that the claimant was born on 1 January 2000 and was 23 years of age on 17th October 2023."
- In the light of the First Decision the claimant's solicitors commissioned a second report, this time from Dr Antonio Giustozzi. In turn Dr Giustozzi caused investigations to be made with the records department of the Population Registration Authority in Kabul, Afghanistan, which is said to oversee all the "Tazkira" offices in the country. In his report dated 16 April 2024 Dr Giustozzi said that the claimant's taskira had been checked against the local records and had been found to be genuine.
- The claimant's solicitors also commissioned an addendum report from Dr Zadeh to respond to the issues raised by the defendant in the First Decision. He explained the different cultural approach to the lack of recording and use of dates of birth, which, he said "are not celebrated widely", adding (in paragraph 27)
"It is a cultural practice that Afghan parents leave signs which shows when a child has been born. Some people write it down, some others just remember it as the birth of a child for Afghan parents is very important. Most young Afghans know their date of birth from their mother or father."
- Dr Zadeh went on to say that therefore it is common in Afghanistan for an age recorded on a taskira to have been assessed, adding "The government of Afghanistan does not have the capacity to monitor the births, marriages, divorces or deaths". He explained that such documents were only issued on demand, and they all contain a section headed "age assessment" which records the process by which the age of very many taskira holders are ascertained. In paragraph 31 he set out the steps undertaken in that process:
"Taskira departments have a professional age assessor. The age assessor conducts age assessment for tens of thousands of citizens who apply for Taskira documents. The phrase "Based on physical appearance age assessed as" means the age assessor identifies the age based on one's physical appearance which includes height, stature, facial marks, hair, eyebrows, face, eyes, wrinkles and anything else that is visible on one's face and body. Age assessment carried out in Afghanistan is comprehensive and is based on scientific observations for one's growth and maturity which is the most important indicator of assessing one's age. The methods and approaches to age assessment are very different in Afghanistan compared with the UK. The MERTON case- law is very useful judicial guidance. However, in the absence of cultural and historical knowledge of Afghanistan, it (sic) government and legal system, often Merton case-law leads to social workers interpreting the guidelines in ways which encourage them to compare an Afghan child and adult with a British child and adult. This often leads to erroneous conclusions when using the Merton guidelines."
- Dr Zadeh specifically commented on the potential motivation for falsification of information on a taskira (para 33):
"The age assessors talk to the parents/guardians of a child and check many things before they return their opinion on age. There are no ulterior motives that a child in 2017 receives a Taskira which contains untrue information. The age being older or younger does not make a difference in any services the government of Afghanistan offers to her citizens. There is no benefit for the age assessor to fail to make all the checks and verifications. In Britain, most financial help depends on what information is provided. There is different criterion to receive different benefits. This incites certain people to provide untrue information to receive these financial gains. None of these exist in Afghanistan. The government does not pay citizens benefits, subsidies, bonuses, wages pensions. When there are no reasons as to why one could provide lies and untrue testimony in Afghanistan, at least the distrust which exists in the UK about cheating a system to gain financial benefits does not exist in Afghanistan."
Having reconsidered the points raised by the defendant he was not persuaded to change the views expressed in his first report.
- Under cover of their letter dated 24 April 2024 the claimant's solicitors sent the further reports to the defendant and again asked the defendant to reconsider the age assessment of their client.
The Second Decision
- On 30 April 2024 the defendant made the Second Decision in which it said that while it did "not challenge the authenticity of the taskera document and accepts Dr Guistozzi's report" it ultimately concluded that the additional evidence supplied on behalf of the claimant
"…does not assist regarding determining the claimant's age. As such, this is not material evidence upon which it is reasonable to conclude that a different outcome to the age assessment may have been likely had it been available with the assessment."
- It seems to me that the substance of the defendant's reasons for the Second Decision are to be found in paragraph 2 of the letter, in particular at subparagraphs (d) to (f):
"(d) Dr Zadeh advises that the Afghani age assessor determines age based on physical characteristics and the process is comprehensive and based on scientific observations of growth, although he does not go on to explain what these observations area. This is not disputed but it remains the case that the claimant told Dr Zadeh that he was not present for the taskera interview. Thus, it is difficult to see how the official could have carried out a comprehensive and reliable age assessment at that time. The evidence available was the witness testimony and the photograph. There would have been no way for the official to independently verify the claimant's identity from the photograph or determine when the photograph was taken, or indeed, whether it in fact was of the claimant. Therefore, an assessment of age in the absence of the claimant, based solely on that material may be unreliable. This is in contrast with the defendant's age assessment where the independent social workers spent several hours over several days in face-to-face meetings with the claimant. The age assessors were in a much better position to make a reliable determination of the claimant's age."
There appears to be an error of fact recorded in this letter in that at paragraph 68 of his report Dr Zadeh records the claimant as saying that he was not aware of his taskira and did not remember being photographed for it adding "I was very young". He further said "I do not know who applied for it. I was not even aware of its existence before". I cannot say whether those answers are true, but they are unsurprising. As I suggested to counsel during the course of the hearing, if one equates the process of a parent obtaining a taskira for a child in Afghanistan with a parent obtaining a passport for a child in the UK it would not be unusual for the child, even a young teenager, not to recall the event and process, including the taking of the photograph used.
- In the age assessment report carried out by the defendant the authors recorded at paragraph 5.8.2
"[The claimant] did not volunteer any identification documents during the assessment and shared that he has never had any identification documentation which he was living in Afghanistan. When specifically asked if he has a Tazkira, [the claimant] shared that he has never tried to obtain this and advised "it is not needed"."
I do not view those answers in October 2023 as inconsistent with the later emergence of what is agreed to be a genuine taskira nor with the answers which the claimant gave Dr Zadeh prior to preparation of his first report. On the contrary, I ask rhetorically, if, as the defendant accepts, the taskira is genuine why would the claimant have concealed its existence in October 2023 if he had known about it.
- The letter containing the Second Decision continues:
"(e) Dr Zadeh's opinion about testimony is noted but it remains the case that we do not know in this case who provided the testimony and whether it was reliable. The claimant provided conflicting information about his age which was challenged in the assessment. He is stated to be a student on the taskera document but reported in the age assessment that he had never attended school. He also told Dr Zadeh that he had been vaccinated. Dr Zadeh's advice was the taskera would be needed to authenticate identity by charities such as the Red Cross. The claimant stated that he was not aware of the taskera."
In his answers to Dr Zadeh the claimant had said that he had not been to school and that in Afghanistan "…they write student for all children." In paragraph 59 of his report Dr Zadeh commented "For children the government of Afghanistan records the job as 'student'. This Taskira contains this information for [the claimant]." In paragraph 70 of his report Dr Zadeh said that the level of the claimant's fluency in Pashto was that to be "expected of a young man from Afghanistan who has not studied at a formal school but has received religious education at home."
- At subparagraph (f) of the Second Decision the defendant wrote:
"Dr Zadeh's advice that Afghanistan has very stringent procedures to verify age does not appear to have been followed in this case. Dr Zadeh also comments about the cultural expectations in Afghanistan where it is normal for children aged 7/8/9 years of age to be working to support the family. The claimant was asked about this in detail in the age assessment but was unable to provide a detailed account of his role within the family as a child. The assessors clearly attempted to elicit as much information from the claimant as possible about his role in the family and the differing cultural expectations. The assessors fully considered the differing cultural expectations."
In the circumstances the defendant stood by its decision not to re-assess the claimant's age.
The basis of challenge
- The claimant relies both on process irrationality and outcome irrationality. The claimant submits that an intense review of the decision-making process is required, which his counsel describes as the "anxious scrutiny" test.
- The essence of the claimant's challenge on process irrationality is that the defendant misdirected itself in applying what is known as the Age Assessment Guidance by asking itself not whether the evidence was capable of resulting in a significantly different conclusion as to the claimant's age but whether it did or would do so. The claimant submits that the defendant conflated two questions, first the question whether it should re-assess and secondly what the outcome of a re-assessment would be whereas it should have focused first on the question of whether there should be a re-assessment.
- The claimant also argues that the outcomes of the decisions were irrational in that they were unreasonable in the Wednesbury sense because the defendant had criticised the absence of a taskira, but when the taskira, which is plainly a document capable in theory of evidencing the claimant's correct age, was produced it did not trigger a re-assessment.
- The defendant submits that there is no statutory obligation on an authority to carry out a re-assessment of a person's age and that while the defendant should have regard to the Age Assessment Guidance it is not bound by it and the guidance should not be construed as if it were legislation. It is said on behalf of the defendant that the question of whether it should reconsider the initial assessment in the light of the new information is a matter solely for the defendant "and may only be impugned on conventional public law principles". It submits that, in any event, the defendant did not misdirect itself and the decisions not to re-assess were not irrational (on the process basis or the outcome basis) because they did not cross the high threshold for effective challenge. Therefore, the defendant says that the only potentially arguable ground of challenge is on the basis that the decisions were unreasonable in the Wednesbury sense but that such a challenge fails in any event.
- The defendant argues that the correct approach was adopted by it, namely, to evaluate the new material (ie the taskira) and then decide how it might affect the assessment which it had already undertaken. In essence the defendant argues that the age assessment process for determination of age on a taskira falls far short of the process for age assessment carried out by the local authority in accordance with the practice approved in the reported decisions of the courts. In this case it was submitted that the age assessment process was impeccable. Specific criticism was made of the absence of evidence in this case as to the genesis of the taskira and how the age assessment process was undertaken. The taskira is, it was submitted, of limited probative value in the circumstances.
Discussion
The legal structure
- For the purposes of sections 17 and 20 of the Children Act 1989 unaccompanied asylum-seeking children will almost invariably be children in need in respect of whom the local authority would have a general duty to safeguard and promote their welfare. The consequences of age assessment for the purposes of this Act are therefore profound.
- In R (A) v Croydon LBC [2009] UKSC 8 Baroness Hale of Richmond JSC held that whether a person is a "child" for the purposes of section 20 is a "jurisdictional fact" (para 32) in respect of which there is a right or wrong answer however "difficult to determine what that answer is." [para 27]
- There is a thus an obligation on local authorities to conduct an age assessment in cases of doubt to determine whether or not to exercise its statutory functions in any given case. The need for the approach in these assessments to conform to acceptable standards has long been referred to as a requirement that the assessment be "Merton" compliant, after the decision of Stanley Burnton J in the Merton case mentioned above. There is no need to set out those well-known principles here. There is no statutory guidance as to how an age assessment should be carried out but in October 2015 the Association of Directors of Children's Services on age assessments produced some non-statutory guidance known as Age Assessment Guidance, often referred to as the "ADCS Guidance". It describes itself as "Guidance to assist social workers and their managers in undertaking age assessments in England". Challenges to the assessments themselves are challenges of findings of fact which now lie to the UTIAC rather than the Administrative Court whose processes are not suited to the evaluation of contested evidence of fact.
- A question arose as to the burden of proof in such cases, which the claimant asks me not to resolve. I do not need to for the purposes of this decision, but it seems to me that the answer to that question may be found in the following passage from the judgment of Pitchford LJ in R (CJ) v Cardiff City Council [2011] EWCA Civ 1590 at [21]:
"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."
His Lordship went on, however, to describe how in his view the court should approach the material it had to consider:
"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."
Thus while in my judgment there is no formal burden of proof on either side, and no rule that a claimant has to be given the benefit of the doubt, the clear steer from the Court of Appeal is one of a sympathetic consideration of what may well be poor quality evidence relied on by the person whose age is to be assessed.
- I bear in mind, again, that the challenge here, as I have said, is to the decisions not to re-assess the claimant's age, not as to the age assessment itself.
- The ADCS Guidance covers not only age assessment but the approach and steps which should be taken if new information comes to light after an initial age assessment. A question arises in this case as to the extent to which the defendant was bound to follow the Guidance in relation to the decision not to re-assess.
- There is no direct authority on the point. However, in R (S) v Croydon LBC [2017] EWHC 256 (Admin), Lavender J was faced with submissions about whether a local authority was obliged to follow this non-statutory guidance in respect of the asylum-seeking applicant in the case before him. The learned judge held, in paragraph [50] as follows:
"I do not find it necessary to decide this issue. However, it is plain that the ADCS Guidance is relevant to any consideration of whether the Defendant had cogent reasons for departing from the Statutory Guidance, both because of the expertise of its authors and because of the involvement in its production of the Defendant's own Director of Children's Services."
- Under the heading "Where further information becomes available" the Guidance suggests the following approach and specifically deals with the situation where new documents are discovered:
"Age assessment is a difficult process for children and young people and for social workers undertaking the assessment it should only be undertaken when there is significant reason to do so. However, there will be occasions when a further assessment is required. Other than on those occasions when reliable and authoritative information is available, an assessment will not allow the assessing social workers to know the age of a child or young person and will only allow them to come to a balanced and reasonable conclusion based on the information to hand and on the benefit of the doubt. Other information may come to light at a later stage, for example, in the form of documentation or as professionals get to know the child or young person over time, which leads them to think that the assessed age is wrong."
The section then goes on to identify the trigger for a re-assessment and the steps which it should lead to:
"Where you believe that a significantly different conclusion might be reached and that the child or young person may be notably older or younger than initially assessed, then a new assessment should be undertaken. [My underlining] In most circumstances you will need to talk with the young person about this new information. There may be occasions when a re-assessment does not have to involve further questioning; for example, where new documentation has been provided which supports the child or young person's claim and it can be relied upon, a decision on age can be made on that basis. Any new decision and the reasons for it must be clearly communicated with the child or young person, and if they are to remain in your service, then thought must be given to rebuilding trust and confidence. The Home Office must be advised of any new decision, and the child or young person will need to be issued with new immigration documents which reflect their assessed age."
Because age assessment is an imprecise science and the age at which a person is originally assessed may be wrong it is clearly of great importance that in appropriate cases the age of that person should be re-assessed, an obvious example being, as the ADCS Guidance suggests, where new documentation comes to light which might give rise to doubt in respect of the original assessment.
- On 11 April 2024 the Home Office officially endorsed the ADCS Guidance when it published its own guidance on the way in which the National Age Assessment Board (the "NAAB") should go about its work when carrying out age assessments for the Department. It specified that it was Home Office policy that the NAAB should take into account the "best practice within the [ADCS Guidance]".
- I am told that the ADCS Guidance is routinely adopted by local authorities in respect of age assessment.
- In the light of what I say in paragraphs 51, 53 and 54 the value of the guidance to local authorities and in evaluating their decision making in connection with age assessments and re-assessments is obvious. It is a statement of almost universally recognised good practice in the area.
- As to the application of the section of the guidance dealing with re-assessment the defendant relies on paragraph [69] of the decision of Ms Leigh-Ann Mulcahy QC, sitting as a Deputy High Court Judge, in R (BM) v Hackney LBC [2016] EWHC 3338 (Admin) as to the nature of the test suggested by the ADCS Guidance in deciding whether an age should be re-assessed:
"In summary, according to the ADCS Guidance in relation to when it is appropriate to conduct a re-assessment, the Defendant had to consider not simply whether it might have a bearing on the assessment but whether "a significantly different conclusion might be reached". That is a higher test and involves consideration of the degree to which the material might impact on the existing age assessment."
Whether the test is a higher test or not it seems to me that insofar as the acts and decisions of a local authority have to be measured against the guidance on re-assessment the appropriate threshold is only achieved if the material might lead to a conclusion which could be properly described as significantly different in the circumstances. In my judgment there is no issue with the application of that threshold condition in this case because on any view in the context of a person who might be 23 or might be 16 the gap of 7 years is significant.
- The claimant argues that there has been both process and outcome irrationality and, in explaining how those principles apply, relies on the decision of R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs and others [2025] EWHC 370 (Admin) in which Chamberlain J discussed the difference between the two aspects of rationality encompassing "the process of reasoning by which a decision is reached (sometimes referred to as "process rationality") and the outcome ("outcome rationality")" [para 55]. He expanded on those two aspects:
"56. Process rationality includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones but is not limited to that. In addition, the process of reasoning should contain no logical error or critical gap. This is the type of irrationality Sedley J was describing when he spoke of a decision that "does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic": R v Parliamentary Commissioner for Administration ex p. Balchin [1998] 1 PLR 1, [13]. In similar vein, Saini J said that the court should ask, "does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?": R (Wells) v Parole Board [2019] EWHC 2710 Admin at [33].
57. Outcome rationality, on the other hand, is concerned with whether – even where the process of reasoning leading to the challenged decision is not materially flawed – the outcome is "so unreasonable that no reasonable authority could ever have come to it" (Associated Wednesbury Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233-4) or, in simpler and less question-begging terms, outside the "range of reasonable decisions open to a decision-maker" (Boddington v British Transport Police [1999] 2 AC 143, 175)."
- The claimant also submits in this case that the standard of review should be an intense one. Reliance is placed on paragraph [75] and following in KP.
- The standard of review for rationality:
"The standard of review for rationality: general
75. Three relevant propositions can be drawn from the authorities about how to assess the rationality of decisions of this kind in respect of a person with a plausible claim to engage the UK Government's responsibility.
76. First, the court's approach to assessing the rationality of a decision varies depending on the importance of the interests affected by it or, to put the point another way, the gravity of its potential consequences. In this connection, it is not necessary to identify a "right" impacted by the challenged decision. It is true that, in Bugdaycay itself, Lord Bridge made reference at 531 to the "right to life", but what made a "more rigorous examination" appropriate was not the existence of such a right but rather "the gravity of the consequences" flowing from the challenged decision – i.e. the fact that the decision was said to have put the claimant's life at risk. This is consistent with the formulations used by Laws LJ in Begbie ("the nature and gravity of what is at stake") and by Lord Reed in King ("the nature of any interests engaged and the gravity of any adverse effects on those interests"). The interests in question may be such as to ground a right properly so-called (as in ex p. Smith and Pham), but not necessarily. In many of the situations in which the heightened standard of review applies, the claimant will have no prior right, whether under statute or at common law, to the benefit which the decision denies him.
77. Second, where it applies, the heightened standard of review has implications for the way the court evaluates complaints of both process and outcome irrationality. In the former case, the court will subject the decision to "more rigorous examination, to ensure that it is in no way flawed" (Bugdaycay, 531). In this connection, the court will expect the decision-maker "to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account" (YH (Iraq), [24]). Where the complaint is of outcome irrationality, more will be required by way of justification (ex p. Smith, 554); and the importance of the interests affected may, in principle, narrow the range of decisions open to the decision-maker, potentially to just one (Pham, [107]).
78. Third, however, the importance of the claimant's interests is not the only factor relevant to the court's approach to a complaint of outcome irrationality. The nature and importance of the public interests on the other side of the balance may also be important. In some fields, institutional considerations may require the court to recognise that it is less well-placed than a democratically accountable decision-maker to evaluate the impact that a particular decision may have on a particular public interest, or the weight to be accorded to that impact. Equally, constitutional considerations may dictate that the court should pay particular respect to the views of a democratically accountable decision-maker about how to balance the public and private interests. In such cases, even where a decision will have grave consequences for the individual, the court may have to afford the decision-maker a wide margin when considering whether the outcome is irrational: Hoareau, [155]."
The defendant's position is that this decision, insofar as it relates to the standard of scrutiny, has no application in this case. Because of my reasoning below I do not need to determine whether a higher than usual standard of review is appropriate in this case.
The Decisions
- In my view it is important to bear in mind when considering the claimant's challenges that:
a) the defendant's age assessors in carrying out the assessment in October 2023 questioned the claimant about the existence and in his case apparent absence of identity documentation;
b) in reaching their assessment the absence of such documentation clearly counted against the claimant;
c) the defendant accepts that the taskira is genuine;
d) the defendant accepts and that it was created at the date when it was issued; and
e) the defendant accepts that the taskira is relevant to the question of whether there should be a re-assessment.
- In considering process rationality it seems to me that one has to have regard to the question which the defendant appeared to ask itself when requested to re-assess the claimant's age. It is apparent from the First Decision, at sub-paragraphs 5(a) and (c) of the defendant's letter, that the defendant directed itself according to the question posed on page 31 of the ADCS Guidance. The question which it posed and the direction which the defendant gave itself in determining whether to re-assess was whether it believed that "a significantly different conclusion might be reached and that the child or young person may be notably…younger than initially assessed…".
- However, the defendant's position is that it is not bound by the ADCS Guidance when making a decision as to whether it should re-assess but that it should have regard to it.
- Like Lavender J in R (S) v Croydon LBC I do not need to decide whether the defendant is bound by the ADCS Guidance or indeed whether it has adopted it as policy. It is relevant guidance, for the reasons given by Lavender J, and because, in this particular case, is the basis on which the defendant decided to determine the question of whether it should re-assess the claimant's age.
- Having therefore asked itself the question suggested by the ADCS Guidance the issue is whether there has been process irrationality, in other words a "logical error or critical gap", to deploy the phrase used by Chamberlain J in KP, in answering the question which the defendant posed.
- The existence or absence of an identity document was plainly an important issue to the defendant who, as appears from the original age assessment, initially criticised the claimant for not producing a taskira and then, in the decision letters, criticised the claimant for not recalling whether he had a taskira before ultimately rejecting the taskira which he did produce as unreliable.
- The fact that the defendant accepts that the taskira is genuine and created at the date which it bears means that it is to be taken to have some evidential value. Notwithstanding the reasons given by the defendant for its view that the taskira was unreliable, reasons which would, on their face, apply to any taskira with which it was presented, it is a form of evidence which is capable in theory of assisting in determining the age of the holder of the document. If issued by governments of other countries it would readily be accepted as conclusive proof of the information which it contains. The documents before me contain no evidenced reason as to why in this particular case the officials in Afghanistan would have created a genuine document but deliberately falsified the information on the taskira or would accidently have recorded a significantly different birth date for the claimant. In the absence of a burden of proof it is not, in my view, for the claimant to prove that the taskira was issued after an appropriate process had been undertaken.
- In any event the taskira shows that an official in Afghanistan had gone through a process which concluded that the claimant was born in 2007. That date, if correct, would result in the claimant being "notably…younger than initially assessed", to use the words of the ADCS Guidance. There is little room for doubt that the document is therefore capable of supporting a "significantly different conclusion" as to age and therefore, in my judgment, "might" do so.
- There is a logical error or critical gap in the defendant's reasoning. I accept the claimant's submission that the defendant jumped from asking itself the correct question, if they were following the ADCS Guidance, to deciding the substantive question whereas if they had followed the logical steps required by the question from the guidance which they asked themselves that should therefore have led to a re-assessment. At the very least it should have led to further enquiries being made with a further discussion with the claimant exploring the reasons why the defendant doubted the reliability of the information which the taskira contained.
- I therefore accept that the decision letters demonstrate process irrationality in that in refusing to re-assess the claimant's age the defendant asked itself the wrong question. It should have asked whether it was possible to reach a different conclusion not whether the existing age assessment was wrong. The defendant appears to have focused on whether the taskira was reliable and whether it correctly established the claimant's age rather than viewing it as a piece of evidence which might lead to a significantly different conclusion as to the claimant's age thereby triggering further enquiries and a new assessment.
- Their decisions were therefore irrational and unlawful, and I would quash the decisions on that basis.
- So far as outcome irrationality is concerned, again, it seems to me that, given that the defendant accepts that the taskira is genuine, it follows that it is capable in theory of demonstrating the true age of the claimant. At sub-paragraphs 5.8.2 and 5.10.8 of the age assessment the defendant expressed surprise at the absence of a document which, as I have said, appears to have counted against him. The defendant therefore viewed it as a potentially important, but missing document, for assessment of the claimant's age. It may be that the defendant had assumed that the taskira would not assist the claimant in demonstrating that he as a child; that is the natural inference to be drawn from their criticism of him for not producing it at the age assessment. For the defendant then to take an adverse stance on the request to re-assess the claimant's age after discovery of the document which would potentially assist the claimant, is prima facie illogical and led to an irrational outcome. It has the appearance of unfairness and in my judgment is unlawful. I would quash the decisions on that basis alone.
- Standing back, it is, in any event, difficult to reconcile what is said in the original age assessment, even if it was carried out in accordance with the proper practice for doing so, with what appears on the face of the taskira, that alone should, in my view, lead to the defendant looking at the matter again.
Relief: no different outcome?
- The defendant submits that even if I were to conclude that the Decisions are flawed I should refuse to grant relief on the basis that it is highly likely that on a re-assessment the conclusion would not be substantially different. Reliance is placed on section 31(2A) of the Senior Courts Act 1981:
"(2A) The High Court –
(a) must refuse to grant relief on an application for judicial review, …
…if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."
- I was also referred to the judgment of Dingemans LJ in R (Branco-Bonfirm) v Secretary of State for the Home Department [2024] EWCA Civ 1421 where the court commented on section 31(2A) of the Senior Courts Act 1981 as follows, at [41]:
"In my judgment the following propositions relevant to this appeal appear from section 31(2A) of the Senior Courts Act and authorities. First there is a statutory obligation on the Courts, pursuant to section 31(2A) of the Senior Courts Act to refuse to grant relief on an application for judicial review "if it appears highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred" unless the court considers, pursuant to section 31(2B) those requirements, might be disregarded for "reasons of exceptional public interest". Secondly this statutory test replaces the previous discretion of the court hearing a claim for judicial review to refuse to grant relief in a claim for judicial review where the decision maker would "necessarily" have made the same decision, as considered in Simplex GE (Holdings) and another v Secretary of State for the Environment (1989) 57 P&CR 306 at 327 and 329. This means that a narrow construction of "conduct" is not appropriate, see Goring-on-Thames Parish Council at paragraph 47. Thirdly the threshold remains a high one see R(PCSU) at paragraph 89 and courts still have to be cautious about straying into the forbidden territory of assessing the merits of a public law decision challenged in judicial review proceedings, see Plan B Earth at paragraph 273."
- The defendant submits that it considered the new information very thoroughly and in the First Decision letter and in the Second Decision letter explained their reasons for concluding that the existence of the taskira made no difference to their age assessment. In the circumstances, it is said, of the considerable care taken in the original assessment and in evaluating the new evidence it is highly likely that there would be no difference if a re-assessment were to be undertaken.
- It seems to me that, as explained in Branco-Bonfirm the threshold for refusal of relief is a high one, which is not reached in the current case. As I have mentioned above it is not for this court to determine whether the facts as found in the original age assessment were correct. It is ill-equipped to do so, but in any event, it is not the decision which is under review. It would involve me stepping into a consideration of the merits of the original assessment, which is not appropriate. I express no view as to the correctness of the original decision, but I have no doubt that the taskira is a piece of evidence which triggers a re-assessment for the reasons which I have given.
- I would therefore make a mandatory order requiring the defendant to undertake a re-assessment which takes account of the taskira and the three reports relating to it.