United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

BEFORE Upper Tribunal Judge Canavan

 

HAVING considered all documents lodged and having heard Mr A. Mackenzie of counsel, instructed by Instalaw, for the applicant and Ms C. Cooper of counsel, instructed by London Borough of Croydon, for the respondent at a hearing on 27-29 July 2021.

 

IT IS ORDERED THAT:

 

(1)     The application for judicial review is refused for the reasons in the written judgment.

 

(2)     The order for interim relief made by Dan Squires QC sitting as a Deputy High Court Judge on 14 January 2020 is discharged.

 

(3)     The applicant is allocated a date of birth of 03 August 2000 .

 

Court of Appeal

 

(4)     No application was made for permission to appeal to the Court of Appeal. The Upper Tribunal finds that there are no arguable errors of law in the decision that would justify granting permission to appeal. As such, permission is refused.

 

Costs

 

(5)     Having considered the costs submissions made by both parties, the applicant's suggestion that he was partially successful, and that the respondent should pay 50% of his costs, has no merit.

 

(6)     The application for judicial review was to challenge the respondent's age assessment decision dated 17 September 2019. The Upper Tribunal found that the applicant was at least two years older, but possibly more, than his claimed age. On the date of birth now allocated to the applicant, he was 19 years old at the date of the decision that was challenged. The fact that the Upper Tribunal's finding did not go so far as the respondent's assessment in 2019 that he was 'most likely in his early twenties' matters not when placed in the context of the relevant legal framework. The purpose of the age assessment decision was to determine whether the respondent's duties towards children under The Children Act 1989 were engaged. Those statutory duties are at the heart of these proceedings. The success or otherwise of the claim does not rely on how close the Upper Tribunal's findings were to the respondent's initial assessment that he was 'most likely to be in his early twenties', but whether the applicant was a child or not at the date of the age assessment decision. The applicant says that he entered the UK on 27 July 2018. According to the allocated date of birth he was a minor on arrival in the UK, but reached his majority only a week later. He was supported during that time. The respondent later assessed him to be an adult.

 

(7)     Having found that the applicant was more likely than not to have been an adult at the date of the age assessment decision, the respondent wholly succeeded in defending the claim. The usual course is for costs to follow the event. I can see no reason to depart that course in this case.

 

(8)     The applicant shall pay the respondent's reasonable costs.

 

(9)     The applicant having the benefit of cost protection under section 26 of the Legal aid, Sentencing and Punishment of Offenders Act 2012, the amount that he is to pay shall be determined on an application by the respondent under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013.

 

(10) There shall be detailed assessment of the applicant's costs in accordance with the Civil legal Aid (Costs) Regulations 2013.

 

Signed: M. Canavan

Upper Tribunal Judge Canavan

 

Dated: 02 December 2021

 

 

The date on which this order was sent is given below

For completion by the Upper Tribunal Immigration and Asylum Chamber

 

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent's and any interested party's solicitors on (date): 03/12/2021

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/ 596/2020

IN THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Field House,

Breams Buildings

London, EC4A 1WR

 

02 December 2021

Before:

 

UPPER TRIBUNAL JUDGE CANAVAN

 

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Between:

 

THE QUEEN

on the application of

N K

(by his litigation friend, Francesco Jeff)

Applicant

- and -

 

LONDON BOROUGH OF CROYDON

Respondent

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Mr A. Mackenzie

(instructed by Instalaw ), for the applicant

 

Ms C. Cooper

(instructed by the London Borough of Croydon) for the respondent

 

Hearing date: 27-29 July 2021

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J U D G M E N T

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Judge Canavan :

 

Background

 

1.               N seeks to challenge the age assessment decision made by London Borough of Croydon dated 17 September 2019, which concluded that he was likely to be 'over 18 years' old and 'most likely in his early twenties'.

 

 

 

 

 

 

 

 

 

 

 

(i)                  N;

(ii)                Jack Wilson (Children's Society);

(iii)              Edyta Janczak (ESOL teacher);

(iv)              Gerhard Boer (football coach, Refugee Response Projects);

(v)                Alyson Frazier (music projects, Play for Progress);

(vi)              Tahir Ravat (former Allocated Social Worker);

(vii)            Andrew Calderwood (Independent Reviewing Officer);

(viii)          Tony Miller (former foster carer);

(ix)              Anthony Obasogie (current Allocated Social Worker);

(x)                 Andrew Martin (Age Assessment Team Manager);

 

7.               In addition to the oral evidence, the documentary evidence includes the age assessment decision dated 17 September 2019 and the witness statements of the social workers who conducted the age assessment. The respondent's social care records have also been disclosed. Other evidence includes printed extracts from N's Facebook account and those of associated friends and relatives. The social media evidence covers a period from 2017-2018.

 

 

 

 

 

 

 

11.           The oral evidence and submissions are a matter of record. I have considered the evidence as a whole and will refer to those aspects of the evidence that are material to the decision during my findings.

 

Findings on the evidence

 

N's evidence

 

12.           I have had the opportunity to speak to N and to assess him as a witness. I bear in mind that he is a young person who may not have answered questions in court before and that he talked to me with the assistance of an interpreter. On his claimed date of birth he was nearly 19 years old by the date of the hearing and did not need a responsible adult present.

 

13.           N told me that he understood the court interpreter who confirmed that he spoke Kurdish Badani. After a brief discussion the court interpreter confirmed that they understood one another, and in seeking to assist the court, stated of his own volition that they were from the same town. It was not appropriate to clarify what town. I was satisfied that N understood the interpreter and that the correct Kurdish dialect was being used.

 

14.           N asserts that there were interpretation problems when he was interviewed by the age assessors because a Kurdish Badani speaking interpreter was not used on each occasion. Even if a Kurdish Sorani speaking interpreter was used, and there is evidence to indicate that this was the case, it seems clear from the interview records that the interviewers checked whether he understood the interpreter. If there had been significant issues with an interpreter one might reasonably expect the interview to have been halted. A responsible adult was present at each interview to monitor his welfare but there is no record of them having intervened if there had been any concerns about understanding or communication. Even if the situation was not ideal, N initially confirmed that the witness statements prepared with his solicitor were checked with the assistance of a Kurdish Badani speaking interpreter and that he was content to rely on the information given in those statements as part of his evidence before the Upper Tribunal. I have had the opportunity to speak to N myself and to the other witnesses. I bear all of this in mind as I turn to consider N's evidence.

 

15.           Mr Mackenzie accepted that Iraq has a system of birth registration. N initially said that he had known his date of birth since he was a young child. He claims that he was born on 03 August 2002. At the hearing N told me that he had an identity document called a 'jinsiya'. In country guidance decisions of the Upper Tribunal this is referred to as an Iraqi Nationality Certificate (INC). In his first witness statement N said that his father kept his birth certificate. At the hearing N clarified that he did not know what a birth certificate was when asked. When he confirmed that his father had his birth certificate, he meant the jinsiya. On N's own evidence documentation was issued that would constitute an official record of his date of birth. Even if that document was lost, which is not claimed, when his family was displaced to Duhok, country guidance decisions of the Upper Tribunal have recently gone into some detail about the possibility of Iraqi citizens obtaining new identity documents through the family registration system.

 

16.           N told me that he has not taken any steps to contact his father since he arrived in the UK. The SEF statement prepared in support of his asylum claim dated 24 October 2018, which included a declaration that the contents had been read to him by a Kurdish Badani speaking interpreter, stated that his family fled to a refugee camp in Duhok called 'Domiz'. They lived in Domiz camp for four years. On his evidence, N's father was last known to be living in the camp. Even though he has had legal assistance and support from social services since he arrived in the UK, N told me that he had made no attempt to contact his father to try to obtain evidence of his age. When asked why not, he offered no explanation, but simply stated: 'I don't know'. A note made by a social worker during a placement planning meeting on 30 January 2020 stated:

 

'[N] states he has no contact with his family and expressed he does not want any contact at the moment because of his age assessment experience. [N] also informed that he did not have family in the UK. Red Cross family tracing offered however he turned it down.'

 

17.           Even though contact with his family members might assist the age assessment process, and it is likely to be relatively straight forward for the Red Cross or UNHCR to check the records of families registered in Domiz camp, N did not want a third party to help him to contact his family. N has provided no explanation as to why he would be so reluctant to do so if he has genuinely lost contact with his family. In the circumstances, it is more likely that he did not want assistance because he is still in contact with family members in Iraq.

 

18.           Similarly, even though the respondent has produced evidence to show that N was friends with his older brother, 'S', on Facebook, who could easily be messaged, he had previously made no effort to message him to see whether he might be able to assist him to obtain identity documents that could confirm his date of birth. I will say more about the Facebook evidence in due course.

 

19.           A trainee solicitor at Instalaw called Ella Royle prepared a statement to say that she attempted to contact S by way of a Facebook message and attached a screenshot of the message sent on 19 March 2020. By this time N knew that the Facebook evidence was relied on by the respondent to suggest that he was older than his claimed age. If N is telling the truth about his age, the fact that S did not reply to his solicitor does not say anything about his age but merely questions whether S is still using that particular account. If N is not telling the truth about his claimed age and is in contact with his family through simple methods of international communication such as Facebook, which do not rely on knowledge of the person's exact whereabouts, it is hardly surprising that his brother did not reply to his solicitor's message because he would be unable to provide genuine evidence to support an incorrect date of birth.

 

20.           The age assessors attempted to obtain a family and educational history from N during the age assessment process. N does not claim to be illiterate or innumerate. Initially he was able to give the names of his parents and siblings and offered an approximation of their ages. N said that he went to primary school for about four years, this is consistent with what he said in his first witness statement. He said that he stopped going to school in 2012 after his mother died. According to N's claimed date of birth he would have been around 10 years old. In his second statement he said that he was nearly 10 years old when his mother died.

 

21.           I talked to N about his background in an attempt to construct a family and educational history that might assist in assessing his age. In earlier records of interviews and information provided in witness statements N had given some information about his family background. However, at the hearing N did not even attempt to provide a response to most of my basic questions about the family structure. I did not expect him to be able to provide the exact dates of birth of each of his siblings, but despite attempts to assist him by reference to relative ages or events such as school start dates, his evidence was characterised by repeated blank responses that were not consistent with someone even of his claimed level of education.

 

22.           N told the age assessors in 2019 that his oldest sister 'H' was about 24 years old. Even if N does not know her date of birth it is reasonable to expect him to have a rough idea of how much older she is than him, yet when asked he told me: 'I don't know'. He said that she was not married when he left Iraq.

 

23.           N confirmed that his brother S was his next oldest sibling. He told the age assessors that he though S was about 22-23 years old at the time (in 2019). In his second statement, in response to Facebook evidence which suggested that his brother was a student at the University of Duhok, N said that his brother was not at university when he left Iraq in 2018. S's Facebook account states his date of birth as 14 January 1996, which is consistent with N's initial estimate of his age. This would make S six years older than N on his claimed date of birth. Despite the fact that N has looked at the Facebook evidence, which contained his brother's date of birth, when I asked how many years older than him S was, again, he replied: 'I don't know'. N had previously said that he started school when he was around six years old. As a moment rooted in time that might aid N's memory, I asked him whether he could remember how old S was when he (N) started school. Again, he replied: 'I don't know'. I asked him an even more general question as to whether S was still at school when he (N) started school. He said: 'I don't remember'. N was asked about his sister 'W'. He agreed that she was closest in age to him. I asked him how much older than him she was. He replied: 'I am not sure'. I asked him why he was unable to remember how much older his closest sibling was. He replied: 'I can't remember. It is too long. I don't know'.

 

24.           Even on his claimed age, N was nearly 16 years old when he left Iraq, it would be reasonable to expect him to give an approximation of how much older than him his brother and sisters were even if he made clear that he was not certain. He does not claim to be innumerate. He comes from a culture where family registration is common and said that he was aware of his age from about eight years old. It is not credible that he could not give any approximation of the age of his siblings relative to his own when he had been able to do so before. After a number of questions I was left with the impression that he did not want to assist me to develop a picture of his family history that might help me to assess his likely age.

 

25.           N has been broadly consistent in putting forward a simple account of his educational history, stating that he began school at around six years old and attended school for four years before his mother died in 2012. He was more forthcoming in telling me what subjects he studied and did not seem to have any problem recalling them. However, considering the evidence which indicates that his older brother has been educated to university level, N's claim that he stopped attending school when he was 10 years old does not sit well with other evidence about the level of education in his family and of his friends. According to the family make up given by N he is the younger of two sons. In the context of a paternalistic society such as Iraq it is more likely that the sons would be offered education although I accept that many Iraqi women are educated. When asked why he stopped attending school, N told me that he did not want to go after his mother died because she was the one who took him to school. When asked whether his father wanted him to go to school, he told me that he did. When asked to explain why he did not go to school despite his father's wishes he replied: 'I didn't like it'.

 

26.           Ms Cooper asked N a series of questions about the substance of his asylum claim and his journey to the UK, but much of the evidence did not assist me in assessing his likely age. Ms Cooper talked to N about the use of interpreters during the age assessment and suggested to him that there was no evidence to show any significant problems with interpretation. N was asked questions about the differing accounts he had given as to when he first came to know his date of birth. He denied having told his solicitor that he became aware of his date of birth when he was around eight years old despite the fact that he had confirmed that the statement was read to him with the assistance of a Kurdish Badani speaking interpreter. He now claimed that he was around 13-14 years old when his father told him his date of birth. Ms Cooper suggested to N that there was evidence to show that he spoke English quite well, and that this indicated that he had been educated for longer than he claimed. He denied this suggestion.

 

27.           N was then asked about the Facebook evidence, which had been printed by Croydon social services from publicly available profiles. N does not dispute that this is his account and could not do otherwise given that several posts included photographs of him. The evidence includes print outs of the Facebook profiles of several friends, which also feature photographs of N. The evidence was printed in 2019, but only appears to relate to posts during 2017 i.e. before he says he left Iraq. I bear in mind that the date of a post on Facebook does not necessarily indicate the date a photograph was taken, but given the ease of mobile technology many people post contemporaneous photographs taken on their phone straight onto Facebook. Mr Martin told me that he prepared the evidence and included the captions and a translation of any text on the posts. I bear in mind that the captions are his subjective view of each post and that it is for me to assess what weight to place on this evidence. During the course of the hearing it was necessary to conduct another translation of the text of a post, because the original translation was questioned. Both parties agreed the translation.

 

28.           The print out for the cover page of N's Facebook account gives his first name with the second name of 'Kurdi' (likely to be a generic term for a Kurd which is also used by another of his friends). It shows two photographs of N. The first is of him swimming in white water wearing a distinctive necklace and the second is with a friend. He is identifiable in both photos and he does not deny that they are of him. The next image is a photograph of N posted on 20 March 2017. If the photograph was taken on or around the date of the post, he would have been 14 years old according to his claimed date of birth. He has a well developed moustache and hair on his chin in the photograph, which gives the impression of him being older than his claimed age at the time. The post received 171 likes and 114 comments, which suggests that N is likely to have a large number of friends who see and interact with his posts on Facebook. The next image was also posted on 20 March 2017 and again shows N with a well developed facial hair. He is inside a building wearing a tuxedo, an ID badge, and is carrying a microphone. In the photograph he appears smiling and confident. In this photograph, at least, he appears much older than the 14 years he claims he would have been at the time. The next two photos of him were posted in March and April 2017 and again attracted a large number of likes and comments, which suggests a much higher level of activity and knowledge of Facebook than N claims.

 

29.           Mr Martin printed out two images from the Facebook account of a person called 'F', who he claimed in the caption is a former looked after child in Croydon who was assessed to be an adult. No documentary evidence has been produced to support this assertion. It not possible to place any weight on the assertion without further information. However, the evidence is still relevant to N's overall credibility. It includes a print out of a post from F's profile dated 11 August 2017, which is said to show a photograph of F and N together in a park with a sign and three banners in the background. In his second statement N accepts that he knows F and said: 'I met [F] in Turkey' but denied that it is him pictured in the photograph. Not only does the person in the photograph look like N, but he is also wearing the distinctive necklace pictured in the photograph on his Facebook profile page. I am satisfied that it is more likely than not that this is a photograph of N with F.

 

30.           Ms Cooper said that the banners were written in Turkish and suggested to N that he was pictured at a festival in 'Büyükçekmece' in Istanbul at a time when he claimed to still be in Iraq. She produced no evidence to support the assertion that Büyükçekmece is in Istanbul.

 

31.           I accept that the word can be seen on one of the banners in the photo. It is an anomaly that the Upper Tribunal (Immigration and Asylum Chamber) considers applications for judicial review of decisions made by local authorities about a person's age. On the face of it the claim relates to the duties of a local authority under The Children Act 1989 and has nothing to do with an immigration decision. However, the reason why this tribunal has this jurisdiction is that many young people whose age is disputed have claimed asylum in the UK. Immigration judges have the requisite knowledge of the situation in various refugee producing countries to place a young person's account in proper context. For this reason I find that it is reasonable to take judicial notice of the fact that the wording on the banners does appear to be in Turkish. Immigration judges deal with Turkish cases on a regular basis and see many documents written in Turkish. It is a distinctive and recognisable written language that uses a different script to middle eastern languages such as Kurdish or Arabic. There is no translation of the script on the banners. The evidence currently before me cannot support anything more than a finding that the text on the banners is likely to be in Turkish. The photograph is consistent with N's evidence that he met F in Turkey.

 

32.           This is the only image which N denied. The most likely reason why he did so is because it suggests that he was in Turkey on or before the date when the photograph was posted on 11 August 2017. He did not claim that he visited Turkey on an earlier date, but instead sought to deny that it was him pictured in the photograph. I am satisfied that it is him for the reasons I have already given. The fact that N sought to deny that he is pictured in this photograph is damaging to his overall credibility.

 

33.           There is a series of print outs from the Facebook accounts of N's friends. Mr Martin selected those accounts which contained posts with photographs of N with those friends. I bear in mind that this evidence was printed in or around July 2019, when according to his claimed age N was 16 years old. In July 2019 the Facebook account of his friend 'ZS' stated that he 'Studied at University of Duhok'. A post dated 15 April 2017 shows ZS with N. Although both look young, ZS has a full beard suggesting an older age than the 14 years N claimed to be at the time when the photograph was posted.

 

34.           The Facebook account of N's friend 'MK' printed in 2019 stated that he was a 'Student at University of Zakho'. A photograph of a football team posted on 07 April 2017 shows N with a group of young men, several of whom, including his friend MK, have full beards and appear considerably older than the 14 years old N claimed to be at the time. When N was asked about this photograph at the hearing he agreed that the people in the team were older than him. Although some members of the team appear older, N does not stand out as noticeably younger member of the team.

 

35.           The Facebook account of his friend 'BR' printed in 2019 stated that he 'Studied at University of Duhok' and was 'from Duhok'. A post dated 20 December 2018 shows a photograph of BR with N in an outdoor setting. On the face of it they appear to be young men of a similar age and N does not look noticeably younger than BR.

 

36.           Another of N's Facebook friends is 'MR', whose account gave his date of birth as 05 May 1997. There are no posts of photographs showing MR and N together. He may be one of many hundreds of Facebook friends given the number of likes and comments made on N's previous posts. This evidence shows nothing more than the fact that he has a Facebook friend who is likely to be 24 years old at the date of the hearing.

 

37.           The final piece of social media evidence is a series of posts and photographs from his brother's Facebook account. When the evidence was printed in 2019 his profile stated that S 'Studied Geology at University of Duhok'. His profile stated that Duhok was his 'current city' and 'home town'. The print out of S's profile states that his date of birth is 14 January 1996, which means that he would be 25 years old at the date of the hearing. The posts show S in various situations travelling in Egypt and on what appear to be college trips. Other photographs, similar to some of N, show S in formal suits at various events. The impression given by the photographs is that S comes from a comparatively well off family, which N did not deny when this was suggested to him at the hearing.

 

38.           The Facebook evidence produced by the respondent shows N in various situations with friends who were, in or around July 2019 when the evidence was printed, old enough to be attending university. It also shows him with other friends, such as the football team, who in April 2017, when N claims he was only 14 years old, were clearly much older than that. In general, the Facebook evidence tends to suggest that N's friends are likely to be at least 2-3 years older, if not more, than his claimed age.

 

39.           N responded by saying that some of his friends are older. However, it is notable that he has produced no evidence in response to show that he might have other friends on Facebook of a similar age to the one he claims to be. In his first statement N claimed that he no longer had 'the log in details' for his Facebook account. His explanation that he could no longer access his account because he knew little about Facebook and was locked out of the account is weak. The evidence indicates that he had a large number of Facebook friends who interacted with his posts. This suggests that N has far more knowledge of Facebook than he claims. It is not difficult, even if he needed assistance from his solicitor or a friend, to reset a password to regain access to his Facebook account. In his second statement N says that he also has a Snapchat account and uses Whatsapp. The fact that he has other social media accounts also suggests a far higher level of understanding of the use of social media than he claims. I conclude that the most likely reason why N claims he can no longer gain access to the account it because he would be unable to produce evidence to show that he has other friends of his claimed age. The Facebook evidence suggests that it is more likely that N is around the same age as the friends he is pictured with in various posts on his own and others' Facebook accounts, who appear to be several years older.

 

40.           I have had the opportunity to speak to N to assess what weight to place on his evidence. I am cautious in assessing how old a person might be solely on their appearance or demeanour, which are unreliable indicators. A young person who is under 18 years old might be physically developed and could appear older, while someone older may look younger than their age. N's appearance did not assist me in assessing his age save that I accept that he presents as a young person. His physical appearance could be consistent with his claimed age or that of someone several years older in his early twenties.

 

41.           Although N answered a lot of questions at the hearing, and for the most part did so with composure, there were a few moments when he appeared to show some immaturity, either by displaying boredom with the proceedings or on one occasion laughing when pressed by Ms Cooper as to why he had not produced any evidence from Facebook of friends of his claimed age. These could indicate signs of immaturity, but could equally indicate frustration or embarrassment when pressed on more difficult aspects of the evidence or lack of evidence. Again, it does not assist me greatly one way or the other. It is possible that a young person in their late teens or early twenties might show similar signs of immaturity when questioned in court.

 

42.           There was a contrast between the answers N initially gave to the age assessors, his statements about his family and educational history, and the answers he gave at the hearing. In earlier statements he attempted to give information about his family history including the ages of his siblings, which at least in relation to S, we know was fairly accurate. Yet at the hearing he repeatedly stated that he did not know how old his siblings were nor made any attempt to assist me to understand the family structure. The overall impression I was left with was that he was attempting to say as little as possible in order to prevent a clear picture emerging that might assist me to determine his likely age.

 

43.           In my assessment, his account of his educational history was also designed to obscure a true chronology. It is implausible that he stopped attending school when he was 10 years old if it was contrary to his father's wishes. The limited educational history put forward is inconsistent with that of other members of his family and his social circle. I accept that it does not follow that N would necessarily have the same educational history, but it is more likely than not that he has been educated to a higher level than he claims when the evidence suggests that he comes from a comparatively well off family and that his brother and many of his friends have been educated to degree level.

 

44.           I do not come to any firm conclusions about his age based solely on N's evidence because all the evidence must be considered in the round, but I found him to be an unhelpful witness for the reasons given above.

General observations relating to the other witnesses

 

45.           Rather than making individual findings relating to the credibility of each of the other witnesses, it may be helpful to make some general observations. Consistent with other age assessments, a range of other witnesses were called to give their opinions as to N's likely age.

 

46.           The witnesses included several people who work in a professional capacity running services for young asylum seekers relating to education, social activities or providing advice and support. These witnesses are often helpful because they might see the young person on a regular basis over a period of time. They are often in a position to make observations about how the young person interacts with other young people in an informal setting. However, such witnesses rarely have formal training in age assessment. None of the first four witnesses called on behalf of N claim to have such training. I also bear in mind that the context in which they work with N does not require them to be critical of his age. In most cases they have no reason to doubt that a young person is the age they claim unless if it becomes obvious that a person is significantly older and this might impact on their duty to safeguard children within their given project or service.

 

47.           The witnesses also include professional social workers who have formal training to work with young people and have often been trained to conduct age assessments themselves. Although social workers have a higher level of training, they might see the young person less often. Their interaction with the young person is in the context of more formal meetings relating to their care and is complicated by the fact that the local authority itself is the body that is questioning their age. For these reasons a young person might be more reticent in their dealings with social workers. Whilst Allocated Social Workers might have an opportunity to get to know a young person over a period of time, the young person may demonstrate greater maturity in formal meetings with representatives of the local authority. A social worker is less likely to have the opportunity to observe the young person interacting with other young people in an informal setting.

 

48.           Finally, I also had the opportunity of hearing from N's former foster carer. His evidence was important because he lived with N over a period of time and would have been able to observe him in unguarded moments. He was in the best position to observe N on a daily basis.

 

49.           All the other witnesses who I spoke to gave their evidence in an open and honest way and had no reason to provide anything other than their genuinely held opinions about N's likely age. Some of the witnesses had higher levels of training and experience of working with young people than others. Some of the witnesses had higher levels of interaction with N than others and in different settings. For these reasons the opinions of some of the witnesses can be given more weight than others. However, none of the witnesses have had the opportunity to consider the full body of evidence that has been presented to me. As such, their opinions form only part of the wider assessment that I am asked to conduct.

 

Jack Wilson

 

50.           Mr Wilson was employed by The Children's Society and said that his role was to support young refugees and migrants through the asylum process. He provided advice and support in relation to housing, benefits, health, education, and income. At the date when he made his statement he said that he had been working with unaccompanied young asylum seekers since 2016 in similar roles at the British Red Cross and an organisation called Safe Passage. By the date of the hearing he said he had around four and a half years experience of working with unaccompanied young asylum seekers. He told me that he did not have formal training in age assessment. He attended a one day course at the Refugee Council relating to age assessment but it was focussed on understanding the process that young people went through. It was not his role to assess the age of young people.

 

51.           Mr Wilson met N on two occasions when one of his ESOL teachers referred him to the college drop-in service. He met N on 17 September 2019 and was in regular contact with him by phone and text messages when he was moved to NASS accommodation outside London for a short period of time. He advised N shortly after he received the age assessment decision. This meeting was his main recollection of N. He said that N was clearly upset by the decision and did not appear to understand the implications. He did not want to move from his foster placement. In Mr Wilson's opinion he appeared to be struggling with the idea of living independently. His presentation was that of a young person his claimed age.

 

52.           I have no reason to doubt Mr Wilson's honest impression of N's age. He worked in a busy job supporting many young people. He recalled this to be a busy time when he was working with 10-15 young people as well as providing drop-in services. He accepted that he had little contact with N while he was in Croydon. He worked in a role which was focussed on support and did not require him to interrogate a young person's age.

 

53.           Whilst I have no reason to doubt that N was upset by the age assessment decision, this could have been for a range of different reasons. It might have been because he was a young person who was worried about the prospect of being removed from a home environment into independent living. An unaccompanied young person of 17 years old or someone who is several years older who had previously lived with their family might be equally upset at the prospect of losing the higher level of support given to children if they are unfamiliar with life in the UK. Even if Mr Wilson observed a certain level of immaturity, for the reasons noted above, it does not necessarily assist me because young men in their late teens or early twenties might demonstrate similar behaviour when faced with change and loss of support.

 

54.           I have taken into account Mr Wilson's opinion but give it less weight than some others. His impression was based on a limited level of interaction with N than other witnesses and he has no formal training in age assessment.

 

Edyta Janczak

 

55.           Ms Janczak is an ESOL teacher who saw N on a regular basis when he attended classes at Croydon College. She taught N for about nine hours a week from September 2018 until July 2019 and then three hours a week until he was transferred out of London in October 2019. She had not taught him since he returned to London. Ms Janczak confirmed that she did not have formal training in age assessment. In the last 3-4 years she taught courses intended for young people aged 15-18 years old. I acknowledge that she has experience of working with young people and is in a good position to give an opinion as to N's presentation compared with other young people she works with.

56.           Ms Janczak considered that N's presentation was consistent with his claimed age. She told me that he presented as one of the younger people in the class because 'he was obedient and took instructions'. She explained that older people may not take instruction. Nothing about his presentation made him stand out from the group of other teenagers. He was not more mature than the other students. In her statement she said that from a teacher's perspective he was rather childlike. He was keen to be praised and wanted to please others. She described him as playful. It seemed clear from her evidence that Ms Janczak had developed a bond with N in the period that she taught him. She told me that she kept in touch with him after he returned to London and sometimes had a chat him because she was concerned about his wellbeing. These are the hallmarks of a good teacher who is concerned for the wellbeing of young students who she knows might be struggling to settle in a foreign country.

 

57.           I give weight to Ms Janczak's opinion about N's age because she is one of the witnesses who has had an opportunity to observe N on a regular basis over a fairly lengthy period of time and in a setting where he was interacting with other young people of his claimed age. However, she worked with him in a context where she had no reason to doubt his age and at a time when he had recently arrived in the UK and would have been seeking to find his place and fit in. When analysed, the core of her evidence was that she observed nothing in his presentation to suggest that he was significantly older than his claimed age.

 

Gerhard Boer

 

58.           Mr Boer leads a Refugee Response project at Hillsong Church. He knows N through the football programme. The project runs football activities for the Refugee Council and other organisations at several locations every week. He told me that 60-70 young people attend the project for two hours on Friday nights. About 8-10 volunteers and staff supervise the sessions. The project is intended for young people aged 14-18 years old although some are older if they have attended for some time. The project does not assess a young person's age. They receive referrals from the Refugee Council and local authorities. Mr Boer does not have specific training on age assessment but confirmed that all staff have to complete GDS checks and attend safeguarding training. Mr Boer told me: 'We normally accept the age we are told in the referral'.

 

59.           Mr Boer said that N attended about 40 sessions and 3-4 tournaments. He felt that he had got to know him fairly well during the time that he attended the project. There was nothing in his presentation that caused him to think that N was older than his claimed age or to suggest that he was older than the other young people who attended the project. He accepted that older young men might still enjoy playing football with boys of a younger age.

 

60.           I have no reason to doubt the sincerity of Mr Boer's impression of N's age. Although N has attended the project on a large number of occasions the opportunity for Mr Boer to get to know him in any meaningful way is likely to have been constrained by the size of the sessions and the number of young people who attend. Again, the core of his evidence was simply that N did not stand out from other young men who attended the project as being obviously older than his claimed age.

 

Alyson Frazier

 

61.           Alyson Frazier is the Head of Operations at Play for Progress, which delivers therapeutic and educational music and arts programmes, advocacy, and well-being support for unaccompanied asylum seeking children and refugees based in London. She is a musician who specialises in running therapeutic programmes. In her statement she confirmed that young people aged between 14-21 years old attend their sessions. At the hearing she said that the programme now included young people between 15-25 years old. The older young people would be separated from the younger during activities.

 

62.           Ms Frazier told me that before the pandemic she would see N about twice a week during sessions. The session would involve a group of 10-35 young people with around 5-10 teachers. Young people are referred to them by social services, Croydon Young Refugees Network, and the Refugee Council. During the course of her evidence Ms Frazier made clear that the project takes its safeguarding duties seriously and if there was any concern that a person was significantly older than their claimed age they would take action to signpost them to another service that was appropriate for their age.

 

63.           She found nothing in N's presentation to suggest that he was older than his claimed age. She observed that he was timid when he first arrived at the project but then grew in confidence. She made observations about the ways in which different age groups interact and considered N to be in the younger age group of 15-16 year olds during the time when he attended the project.

 

64.           Ms Frazier has experience of working with young people and has had the opportunity to observe N interacting with other young people who attend the project. She does not have formal training in age assessment. She is clearly committed to supporting young asylum seekers and to improving their wellbeing through creative and musical activities. Her work gives her no cause to doubt the age of those who attend the project unless a young person presents as significantly older and then might engage safeguarding duties towards children. Her reasons for considering N to be at the younger end of the scale of young people who attended the project are valid. However, her observation of his initial timidity could equally be explained by his recent arrival in the UK and the natural shyness a young person might have performing in front of people who they do not know very well. Her opinion that N did not present as significantly older than other young people in the group is consistent with the other witnesses from refugee support projects and I give it weight.

 

Tahir Ravat

 

65.           Mr Ravat is a qualified social worker of just over five years' experience and has worked for Croydon social services throughout. He has experience of working with unaccompanied asylum seeking children and said in this statement that he has conducted at least 12 age assessments. Mr Ravat was N's Allocated Social Worker from August 2018 until September 2019. Much of his statement deals with information that he obtained from N about his background during the course of his interaction with him at formal meetings and reviews. Mr Ravat's opinion appeared to be based on his understanding of the account N gave about returning to his home village to work in his brother's barber shop, which he thought suggested that he was older than his stated age. He also placed weight on the fact that N appeared to have a good understanding of English, which suggested that he might be better educated that he claimed. While discussing health issues in October 2018 it is noted that N told Mr Ravat that he had been smoking for around 2-3 years, which according to his claimed age would have meant that he started smoking when he was 12-13 years old.

 

66.           Mr Ravat told me that he had around 7-8 meetings with N while he was his Allocated Social Worker. They would vary in length from half an hour to two hours. An interpreter would be present. He confirmed that he did not have an opportunity to observe N interacting with other young people. His statement concluded by stating that N had presented contradictory information and his demeanour presented as someone much older than his claimed age. However, it is clear from the notes that he was not conducting a formal age assessment. Any information he obtained from N was in the context of obtaining background information to discharge his primary role to provide support and was therefore not interrogated as thoroughly as it might be during a formal age assessment. In response to Mr Mackenzie's questions Mr Ravat accepted that he did not raise concerns about N's placement if he had doubts about his age at the time. He explained why he considered N's presentation appeared to show a greater level of maturity and understanding of daily tasks than a young person of his claimed age.

 

67.           Mr Ravat has had the opportunity of assessing N over a period of time, but in a more formal setting than other withesses, and in a different role. Some of his observations, such as the age N might have started smoking, do not assist me greatly because it is possible that some children might try smoking at an early age. Other examples given, such as an incident at Primark, do not really tell me much about N's potential age. The way in which he acted could have been equally applicable to a younger boy of his claimed age and did not necessarily indicate that he was significantly older. While recognising that Mr Ravat was likely to be aware that his age was disputed, nothing in his notes suggest that any serious concerns were raised about his placement in a foster home if he was thought to be significantly older. As a trained social worker who has experience of conducting age assessments I place weight on Mr Ravat's opinion as to N's likely age, but note that he came to no firm conclusion as to how old he thought N was likely to be.

 

Andrew Calderwood

 

68.           Mr Calderwood is the most experienced social worker who I spoke to, having more than 30 years' experience. The context in which he came into contact with N was as an Independent Reviewing Officer (IRO) for Croydon. He is responsible for conducting Looked After Child (LAC) reviews. He was N's allocated IRO from July 2018 until September 2019 and after he returned to the care of the local authority in January 2020. In his statement signed on 13 March 2020 he confirmed that he had conducted five LAC reviews with N. He said that he was asked to provide an opinion as to N's age in May 2019 as part of the age assessment process. At the time his opinion was that there was no reason to doubt N's stated age. His notes from the LAC review that took place on 14 January 2019 recorded his opinion that N 'presents as an age appropriate well-adjusted young person'. His statement went on to explain that he meant by this that N 'presented as a young person whose development both physically and psychologically were in line with what I would expect.'

 

69.           Mr Calderwood's statement went on to say that when he was first asked his opinion the social media evidence was not shown to him. His opinion was based on his own interaction with N. He said that he had now been shown the social media images, which in his view were 'very compelling and strongly support the view that [N] is an adult.' If he had seen the images at the time it would have been hard to support the view that he was 15 years old. When I spoke to Mr Calderwood about the social media evidence at the hearing, it became apparent that there had been a misunderstanding. Mr Calderwood referred to evidence that he thought showed that N had studied geology at university. When I pointed out that this was the evidence relating to his older brother he accepted that this misunderstanding might change the picture. He would tend towards his earlier opinion that N presented appropriate to his claimed age based on his interactions with him. Ms Cooper took Mr Calderwood through each of the Facebook images relating to N, but Mr Calderwood said that he did not recall being shown that many photographs when he prepared his statement in March 2020.

 

70.           As the most experienced witness, Mr Calderwood's opinion should be given weight. However, it became clear at the hearing that he might not have been provided with all of the social media evidence. At the very least, he misunderstood the evidence. His revised opinion that N was an adult was based on the evidence relating to N's older brother. Given that he did not recall looking at the social media evidence relating to N himself or those of his friends, he did not have time to give a considered opinion as to what that evidence might show about N's likely age during the course of the hearing.

 

71.           Having accepted that his second opinion was based on a mistaken understanding of the evidence, it was open to Mr Calderwood to fall back on his original assessment. Mr Calderwood noted nothing in the fairly limited contact he had with N over the course of four meetings to suggest that he was significantly older than his claimed age. I bear in mind that Mr Calderwood did not meet N in the context of a formal age assessment. Because of his considerable experience I place weight on his initial assessment, but this is somewhat reduced by the subsequent vacillation in his evidence due to a misunderstanding about the social media evidence. It is not clear whether he had been given a proper opportunity to consider the import of the other evidence which suggested that many of N's friends were at university when the evidence was printed out in or around July 2019, when N claimed to be only 16 years old.

 

Tony Miller

 

72.           Mr Miller was N's foster carer from July 2018 until September 2019. He has been a foster carer since 2014 and says that he has looked after young people from various backgrounds including young people from a range of countries. He told me that he is a specialised foster carer who deals with young people who might be involved in criminality. Although Mr Miller does not purport to have specialist training in age assessment, I am satisfied that he is an experience foster carer who is likely to have looked after a range of young people of various ages although he told me that N was the first person he had looked after whose age was disputed.

 

73.           Mr Miller's initial statement said that the social workers conducting the age assessment asked him to give his opinion about N's age. He confirmed that the views noted in the age assessment were the ones he expressed at the time. The age assessment noted that N's foster carer and the IRO (Mr Calderwood) both took the view that he could be his claimed age, but appeared to reject their views on the ground that they did not have sight of the Facebook evidence.

 

74.           In his statement Mr Miller described N as a pleasant young man. They considered him to be part of their family. He was upset by the way in which N was discharged from care following the age assessment without notice to Mr Miller who was on holiday at the time. He spoke to the manager about the way in which he was discharged. In his statement Mr Miller went on to observe that N's physical appearance and general demeanour was likely to be older than his claimed age during the time that he lived with his family. However, as a looked after child they welcomed him into their family. When asked for his view about N's age he felt that he was in a difficult position because he did not want to undermine the relationship. He felt that if he had given his full view about his age it might have been difficult to continue to care for him if N thought that trust had been broken.

 

75.           When I talked to Mr Miller at the hearing he was more ambivalent than the opinion given in his statement. He said that it had 'crossed his mind' that N might be older than his stated age, but considered that it was a matter for the social workers to make the assessment. When asked why he thought N might be older, he said that he had a bigger beard than him. His son was 23 years old at the time and N was not dissimilar. However, he also said that N's actions could at times be childlike, which is why he expressed the opinion that N could be his claimed age. He was aware of the fact that people might mature differently in different cultures and had observed that many Kurdish people seemed to 'groom well' and wanted to appear older by growing beards. When asked about N's maturity compared to his own son he said that N needed more help and direction with tasks at home like cleaning the bath or using a tin opener. Mr Miller made clear that he was not an expert in age assessment and could not say with any confidence how old N is likely to be. When he talked to Mr Mackenzie he said that there were factors pointing in both directions. Mr Miller agreed with Ms Cooper that N could also have struggled with some of the household tasks because he was from a different culture where a young man might not be expected to do such domestic tasks.

 

76.           Mr Miller has spent the most time with N. Although he is an experienced foster carer he made clear that he is not trained in age assessment. It is clear that he felt conflicted when first asked his opinion about N's age because he wanted to maintain a good relationship with N as his primary carer. At the hearing, he did not wish to express a firm opinion as to how old he thought N was and identified factors that pointed in both directions. N's physical appearance alone is not a reliable indicator of his age. While noting some factors that might point to potential immaturity, those factors could equally be explained by the fact that N might not have been required to conduct basic household cleaning and cooking tasks at home in Iraq and therefore needed more guidance.

 

Anthony Obasogie

 

77.           Mr Obasogie has been N's Allocated Social Worker since March 2020. He qualified in 2018 and has worked with unaccompanied asylum seeking children since May 2019. Although qualified, he is the least experienced of the social workers I spoke to. His ability to get to know N and form an opinion about his age was also hampered by the fact that he took conduct of N's case at the beginning of the Covid-19 pandemic. In addition to these obstacles to face to face communication Mr Obasogie noted that N was somewhat hostile towards him at first. This is unsurprising given that N was removed from care after the age assessment and was later brought back to London. Mr Obasogie outlined why he thought that N is likely to be older than his claimed age, but many of his observations, such as N's neat appearance and ability to carry out domestic chores, are minor matters that do not say much about his age. A younger or slightly older person could present in the same way. Whilst Mr Obasogie was an honest witness his interaction with N has been limited due to the pandemic. His opinion was rather generalised and did not give sufficient detail to be of much assistance to me in assessing N's likely age.

 

Andrew Martin

 

78.           Mr Martin is the Age Assessment Team manager. He is a qualified social worker and has specialist experience in conducting age assessments. He does not purport to have met N or to provide an opinion of his own although he was involved in signing off the final assessment. His evidence was produced primarily to explain his role in gathering the social media evidence although his name was also mentioned by Mr Miller as the person to whom he expressed his concerns about the way in which N was removed from care following the age assessment.

 

79.           In response to questions from Mr Mackenzie, Mr Martin explained that the social workers who conducted the age assessment had expressed the view that they considered N to be older but did not think that there was sufficient evidence based solely on their interviews to support that assessment. It seems that this conversation prompted a search of social media thereby producing the Facebook evidence. In response to Mr Mackenzie's suggestion that there might be a danger of 'motivated reasoning' to find evidence to support the view that the social workers wanted to reach, Mr Martin said that a search of social media was not a selective exercise and could also support a young person's age. Further questions explored whether the printed images were selective, but Mr Martin explained that he produced screenshots of all the images he could find of N in his own and in his friends' social media accounts that he could access. He told me how he prepared the translations and captions. Mr Martin's evidence was of assistance in clarifying how the social media evidence was prepared. It is a matter for me to assess what weight can be placed on that evidence in light of the procedure he described.

 

Conclusion

 

80.           In the Merton case Stanley Burton J described the impossibility of any decision maker being able to make an objectively verifiably determination of the age of a young person within the age range of 16-20 years old, yet that was the broad range being considered at the date of the age assessment.

 

81.           Having spoken to and observed N myself, his physical appearance did not suggest that he is significantly older than his stated age i.e. a person in his mid to late twenties. Broadly speaking, he presented as a young person who could be in his late teens or in his early twenties. For the reasons I have already given, I am cautious about relying on a young person's physical appearance. At the date of the hearing, when even on his claimed age he was an adult, it is difficult to draw any meaningful conclusions from his physical appearance.

 

82.           However, N's appearance in the photographs on social media, which were likely to have been taken in or around 2017, when N claimed to be only 14 years old, was not significantly different from his current presentation. One might expect a 19 year old to look more physically mature than a 14 year old boy. Nor did N stand out as significantly younger than the men in the football team who he accepted were older. The age assessors also noted that the records from the LAC medicals on 28 August 2018 and 22 August 2019 showed that N's height remained the same over the course of a year. This was considered to be inconsistent with the development of an adolescent who claimed to be 16 years old in 2018 and was more consistent with a young person who had reached physical maturity. The fact that N put on a little weight between one medical and the other could also be explained by diet rather than physical development and does not tell me much about his age.

 

83.           Some of the descriptions of N's demeanour and behaviour are consistent with his claimed age. However, many of those observations could equally be explained by a lack of experience of independent living or a level of uncertainty that a slightly older person might also show when trying to settle in a new country. Other descriptions indicate that, at times, he has shown greater confidence and maturity. However, it is unsurprising that a young person might show greater maturity when questioned in a formal situation such as a meeting with an official from a local authority. Equally, a young person of a slightly older age might enjoy activities such as music or football with younger boys without appearing to stand out from the crowd.

 

84.           Unfortunately, the witness with the greatest experience (Mr Calderwood) vacillated in his opinion, which was based on a misunderstanding of the social media evidence. It was unclear whether he had time to digest the import of the other Facebook posts, which indicate that N had a number of friends who were attending university at a time when he claimed to be 16 years old. The witness who had the greatest contact with N (Mr Miller) was ambivalent and was not able to express a firm opinion about his age. When analysed, the witnesses who support his age only observed that he did not stand out from other young people they work with. They work in roles where a young person's age is accepted unless there is good reason to think that they are significantly older and their safeguarding duties are engaged. Some of the social work witnesses have specialist training in age assessment but formed their opinions with less contact, outside the context of a formal age assessment, and without the opportunity to observe N interact with other young people.

 

85.           The evidence from the witnesses relating to N's presentation and maturity is finely balanced and could indicate someone of his claimed age or a few years older. In the end, the case for the local authority rested heavily on whether N was likely to be telling the truth about his age or not.

 

86.           It is accepted that N comes from a country where birth registration is common through the family book system. N says that he knows his date of birth and had a 'jinsiya'. I set out my findings relating to N's evidence above. He failed to give an adequate explanation as to why he has made no effort to contact his family in Iraq who might have been able to assist him to produce evidence of his age. N initially gave details about various members of his family to the age assessors and his solicitor. But at the hearing he avoided answering questions about his family despite the fact that his brother's date of birth was clearly stated in the social media evidence, and he had been able to provide some detail previously. I was left with the impression that N was being deliberately evasive and did not want to help me to construct a chronology of his family and educational history that might give an indication of his age.

 

87.           For the reasons I have already explained, it is not to N's credit that he sought to deny that it was him pictured with F in the photograph which appeared to be taken in Turkey in or around August 2017. I bear in mind that his reason for denying the photograph might relate to the impact it could have on his asylum claim rather than saying anything about his claimed age, but it is a matter that is damaging to his overall credibility as a witness.

 

88.           It is impossible for me to come to any confident conclusion about N's age. His claimed age is within a range of ages that is difficult to assess with any certainty, yet that is the task I am given.

 

89.           N has been unable to produce any reliable documentary evidence of his age even though he was offered help to contact his family, who might have a copy of his jinsiya, and there were at least two fairly straight forward avenues to do so. The fact that he refused the offer of assistance when it could have helped his case suggests that he is in contact with his family but knows that they could not provide a genuine identity document with his claimed age. The evidence relating to his physical presentation and maturity points different ways and could be equally applicable to a young person of his stated age or a few years older.

 

90.           Having considered the evidence as a whole, the combination of his presentation as a witness and the evidence from social media tips my decision in favour of finding that N is more likely than not to be at least two years older than he claims. The photographs taken in or around March and April 2017, at a time when he claimed to be 14 years old, show him pictured with various friends who appear to be a similar age. By the time the social media evidence was printed by Mr Martin in or around July 2019, the appellant claimed to be only 16 years old, yet most of his friends had updated their profiles to show that they had studied at university, which suggests that were are at least 2-3 years older. Another photograph showed him with young men who N accepted were older than his stated age would have been at the time.

 

91.           I accept that a person may have a range of friends of different ages on social media. It was open to N to produce evidence to show that he had friends of his claimed age. His explanation for not doing so was weak and unpersuasive. Combined with his repeated claims at the hearing that he could not recall anything about the ages of his siblings with reference to his own, and his attempt to present an educational history that was inconsistent with those of his friends and family, I conclude that it is more likely than not that N has sought to present himself as someone who is younger than he really is.

 

92.           It is not possible for me to assess N's age with any accuracy. The age assessors came to the vague conclusion that he was 'over 18 years' old and 'most likely in his early twenties'. They did not need to do anything more than find that their statutory duties towards children were not engaged.

 

93.           I am required to allocated a date of birth as part of this process. It is an informed estimation based on the evidence before me. I conclude that the evidence shows that it is more likely than not that N is at least two years older than his claimed age.

 

 

Declaration

 

94.           N is allocated the date of birth of 03 August 2000.

 

 

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