JR-2024-LON-001201 | ||
In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
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In the matter of an application for Judicial Review | ||
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The King on the application of |
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ARO [By his Litigation Friend, Afnan Khalid] |
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Applicant |
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London Borough of Islington |
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Respondent |
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FINAL ORDER | ||
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BEFORE Upper Tribunal Judge Norton-Taylor and Upper Tribunal Judge Loughran
HAVING considered all documents lodged and having heard Mr O Persey of counsel, instructed by Osbornes Law, for the Applicant and Mr H Harrop-Griffiths of counsel, instructed by the Legal Services Department of the Respondent at a hearing on 28-31 January 2025
IT IS DECLARED THAT:
(1) The Applicant's date of birth is 20 September 2007
IT IS ORDERED THAT:
(1) The application for judicial review is allowed for the reasons in the attached judgment.
(2) The Respondent shall hereafter treat the Applicant in accordance with his claimed age and provide him with support and services on that basis in accordance with the Children Act 1989.
(3) The Respondent's decision dated 8 December 2023 that the Applicant was assessed to be significantly over 16 years old is quashed.
(4) The Applicant and his brother, MH, are granted anonymity in the following terms:
"Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant and his half-brother who was a witness in these proceedings are granted anonymity.
The applicant will be referred to in these proceedings as ARO.
The applicant's half-brother will be referred to in these proceedings as MH.
No-one shall publish or reveal any information, including the name or address of the applicant, MH and their family members, likely to lead members of the public to identify the applicant and/or MH. Failure to comply with this direction could amount to a contempt of court."
(5) The order for interim relief made on 24 April 2024 is discharged.
Costs
(6) The Respondent shall pay the Applicant's costs of the claim for judicial review, on a standard basis, to be assessed if not agreed.
(7) The Respondent shall pay 60% of the Applicant's costs, on account, within 21 days of receiving the Applicant's bill of costs.
(8) There shall be a detailed assessment of the Applicant's publicly funded costs.
Reasons
(9) We are not persuaded by the Applicant's submissions to make an order on an indemnity basis. Having considered all the circumstances, the relevant case law and the parties' submissions we find that the Respondent's conduct was not unreasonable to a high degree. The particular circumstances of the case do not take it outside the norm and do not justify an order for indemnity costs.
Permission to appeal
(10) The Respondent having made no application for permission to appeal, permission to appeal is refused.
Signed: G. Loughran
Upper Tribunal Judge Loughran
Dated: 15 May 2025
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent's and any interested party's solicitors on (date): 16/05/2025
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR- 2024-LON-001201
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
15 May 2025
Before:
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
UPPER TRIBUNAL JUDGE LOUGHRAN
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Between:
THE KING
on the application of
ARO
[By his litigation friend Afnan Khalid]
Applicant
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LONDON BOROUGH OF ISLINGTON
Respondent
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Mr O Persey (Counsel)
(instructed by Osbornes Law ), for the applicant
Mr H Harrop-Griffiths (Counsel)
(instructed by London Borough of Islington legal services department) for the respondent
Hearing dates: 28-31 January 2025
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant and his half-brother who was a witness in these proceedings are granted anonymity.
The applicant will be referred to in these proceedings as ARO.
The applicant's half-brother will be referred to in these proceedings as MH.
No-one shall publish or reveal any information, including the name or address of the applicant, MH and their family members, likely to lead members of the public to identify the applicant and/or MH. Failure to comply with this direction could amount to a contempt of court.
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J U D G M E N T
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Judge Loughran :
Introduction
1. This judgment follows from a fact-finding hearing conducted over four days for the purpose of determining the applicant's age and date of birth. The applicant asserts that he was born on 20 September 2007. Following a visit with the applicant on 7 December 2023, the respondent found him to be in his mid-20s.
2. It is common ground that the applicant is a Sudanese national, who arrived in the United Kingdom on 4 December 2023 and claimed asylum. It is the applicant's case that he was 16 years old on his arrival. However, the Home Office decided to treat the applicant as an adult, notwithstanding his claim to be a child, because two officers separately determined that the applicant's physical appearance/demeanour very strongly suggested that he was "significantly over 18 years of age and no other credible evidence exists to the contrary." The Home Office concluded that the more probable date of birth was 20 September 1999.
3. The applicant was transferred to NASS accommodation and on 7 December 2023 he was visited by Gaby Couchman and Atiqullah Sayed of the London Borough of Islington for what they say was a "Welfare Assessment." As outlined above, they concluded that he was in his mid-20s and therefore he would not be accepted for any further assessment of support under Children's Services.
4. On 8 March 2024, the applicant brought this claim for judicial review challenging the respondent's decision. Permission to apply for judicial review was granted by Neil Cameron KC, sitting as a Deputy High Court Judge, on 24 April 2024. The applicant's application for interim relief was also granted and the respondent was ordered to treat the applicant as a child and provide him with accommodation and support under sections 17 and 20 of the Children Act 1989 until the claim was determined or until further order.
5. In line with usual practice, the case was transferred to the Upper Tribunal and was actively case managed. By an application notice dated 16 October 2024, the respondent sought to set aside the order granting interim relief. In an order sealed on 13 November 2024, Upper Tribunal Judge Smith refused the application.
Anonymity
6. On 24 April 2024, Neil Cameron KC sitting as a Deputy High Court Judge made an anonymity order in the following terms:
"Pursuant to CPR r.39.2, the identity of the Claimant shall not be directly or indirectly disclosed and these proceedings shall be known as 'R(ARO) (by their litigation friend, Erinç Argun Kayim) v London Borough of Islington."
7. The applicant claims to be a child and has made a protection claim. We are therefore satisfied that the applicant should continue to be granted anonymity. We have also considered whether the applicant's half-brother who gave evidence before us should also be granted anonymity as we note that he has been granted leave to remain on the basis of being a refugee. Neither party objected to him being granted anonymity. We therefore make a direction for anonymity in the terms outlined in the anonymity direction above.
8. To comply with this direction we will refer to the applicant's family members by their relationship to the applicant rather than by their name. The applicant claims to have four older half-brothers including MH. We shall refer to the other half-brothers as B2, B3 and B4. The applicant claims to have two younger full brothers who we will refer to as B5 and B6.
Preliminary Issues
9. On 17 January 2025, the applicant made an application to rely on an addendum report by an independent social worker, Sarah Edwards and a letter from Capital City College. On 23 January 2025, the respondent made an application to cross-examine Ms Edwards. In an order dated 24 January 2025, the applicant's application was granted and it was recorded that the respondent's application would be determined as a preliminary matter at the fact-finding hearing.
Conduct of the Litigation
Late application to cross examine Ms Edwards
"I do not accept Mr Persey's submission that the Applicant's case is now stronger than it was when the Deputy Judge made the order for support. He relies on the independent social worker report but that of course may need to be revisited by that social worker in light of the new evidence. It may be that the Respondent will now wish to cross-examine that social worker in light of the new evidence."
Disclosure of Social Care records
Cross-examination on evidence that had not been disclosed
Piecemeal and Delayed Disclosure
Possible contempt of court/data breach
Lack of Legal Oversight
The applicant's case in summary
36. The applicant claims he was born in a village called Karnoi in the Darfur region of Sudan, but he does not have any memories of living in Karnoi, because he and his family moved to a neighbourhood called El Wihda in Al Fashir when he was still young. The applicant lived with his mother, father, two younger brothers (B5 and B6) and sister. The applicant thinks B5, the oldest of his two younger brothers, is approximately 13-14 years old and B6, the younger of his two younger brothers is approximately 10-11 years old. He thinks his sister is approximately 7-8 years old.
37. The applicant's mother was his father's second wife. The applicant's father had four sons from his first marriage who visited the applicant's family regularly. The applicant does not know their ages, but knew that they were older than him and describes them as all being married now. As outlined above, we will refer to these brothers as MH, B2, B3 and B4.
38. The applicant claims that he fled Sudan in or around August 2023 due to the ongoing war in that country. He was scared he would be kidnapped by the Rapid Support Forces because three of his friends from the neighbourhood had been. He states that his parents arranged for him to travel to Libya. From Libya he travelled to Tunisia. From Tunisia he travelled to Lampedusa by boat where he was stopped by the Italian authorities, who recorded that the applicant was aged 19. From Italy the applicant travelled to France before travelling on to the UK by hiding in a vehicle. As outlined above, the applicant arrived in the UK on 4 December 2023.
39. The applicant asserts that he knows his date of birth and age because he was told several times by his mother. He remembers being told when he was approximately 5-6 years old before starting school and that teachers also recited their age and date of birth in class.
The legal framework
(a) There is no burden of proof on an individual to prove their age. We are not bound to choose one or other of the parties' positions;
(b) A Merton-compliant age assessment requires procedural fairness, which in turn relates to the provision of a suitable interpreter (where necessary), the absence of any predisposition as to age, the presence of an appropriate adult, adequate reasons for conclusions reached, an acknowledgement of the limited utility of relying on physical appearance and demeanour, and having a "minded-to" procedure in which the individual is given an opportunity to respond to concerns prior to a final conclusion being reached;
(c) All relevant evidence must be considered in the round;
(d) At a fact-finding hearing, it is the substance of the evidence which is of primary importance. Matters going to process are unlikely to be of decisive importance;
(e) Issues of vulnerability must be taken into account insofar as relevant;
(f) The fact that an individual has been untruthful about one aspect of their claim does not mean that the same necessarily applies to the rest of their evidence;
(g) The standard of proof is that of the balance of probabilities.
The evidence
Home Office Assessing Officer's Report - applicant's stated age disputed by the Home Office
Screening Interview
The respondent's assessment after the visit on 7 December 2023
"Based on two professionals observation of your presentation, emotional and physical maturity and the inconsistencies and gaps in the information you have shared, you were assessed to be significantly older than 16. The assessors estimated you may be between the age of 24 and 25.
As your estimated age is significantly higher than 16, you will therefore not be put for a welfare assessment and will not be offered any support by children service."
"In view of [the applicant's] presentation, physical appearance, maturity and gap in the information, it is doubted that he is the age he claims. Based on observations and the conversation with [the applicant] about his background, it was concluded that [the applicant] is significantly older than the age he claimed."
MH's age assessment and Facebook evidence
MH's age assessment
Facebook evidence
Age Assessment conducted by Sarah Edwards and Sheena Davi
• Clarification of information;
• Physical appearance and demeanour
• Family Composition and Social History
• Education, Training and Employment
• Journey
• Independence and Self-Care Skills
• Health
• Information from Other Sources
"Based on the information available, we believe that the overwhelming evidence supports [the applicant's] claimed age. We recognise that other professional judgments have deemed him to be over eighteen years of age, however, most of this evidence is unreliable due to its content or lack of transparency concerning the processes undertaken when gathering this information, therefore we are unable to give their judgements significant weighting.
There was no significant evidence collecting during our assessment interview that indicated [the applicant] was older than his claimed age and we were able to address some of the concerns raised in the previous assessments, which [the applicant] confidently and competently elaborated on to resolve."
"When analysing the new evidence submitted by the local authority, I find that I cannot afford it substantial weight that would dispute [the applicant's] age and therefore alter the conclusion in my original report. In contrast, whilst not adding information previously unknown,, the additional statement provided by NelCare has highlighted an additional organisation that support [the applicant's] claimed age.
Therefore based on the original and all the new information provided, I continue to hold the professional conclusion that [the applicant] is more likely to be his claimed age of seventeen years."
The witness evidence
• The applicant, who gave evidence in person, through a Sudanese Arabic interpreter.
• Erinç Argun Kayim, a Children's Advisor in the Age Dispute Project at the Refugee Council, who gave evidence in person.
• MH, who gave evidence remotely through a Sudanese Arabic interpreter.
• Kim McFarlane, a Senior Support worker at NelCare, who works at the applicant's accommodation placement and who gave evidence remotely.
• Mr Sayed, who gave evidence in person.
• Joshua Jackson, the applicant's allocated social worker, who gave evidence in person.
• Ms Couchman, who gave evidence in person.
• Ms Edwards, who gave evidence remotely.
The parties' submissions
Assessment of evidence and findings
The Assessments of Age
Home Office Assessing Officer's Report
The respondent's assessment after the visit on 7 December 2023
"This welfare check should be conducted with 24-48 hours of the referral being received. The check can be completed by 1 trained social worker and without an appropriate adult present, but it should have strong managerial oversight and the managers observations should also be included. In all circumstances an interpreter is required for this meeting and their details should be recorded on the form.
This welfare check and form is the same used for all new UASC referrals to our service and covers basic personal, health and safeguarding information. This welfare form should be uploaded on file and also shared with placements if we determine they are a child or a further assessment is needed.
Following this welfare check, a discussion with a manager is required to determine the following actions:
- Determine they are clearly a child or marginal so as to apply the benefit of the doubt and therefore no further enquiry of age is required....'
- Or, determine that an enquiry as to age assessment is required and undertake places to start this process.
- Or, determine that the claimed child looks significantly older, 25 years + or 7 years or more than their claimed age and as such a refusal to assess determination will be made. A letter outlining this decision will be provided alongside supporting agencies' details to challenge this decision if the claimed child wishes. This must be authorised by senior management."
"In their witness statements, Ms Kennedy and Mr Meiklem explain that the Council applies a threshold of "25 years or older" when deciding whether to conduct an age assessment, i.e. the Council will not conduct an age assessment if at a welfare check the relevant social worker and manager consider that the individual has the appearance of someone aged 25 or older. In this respect, Ms Kennedy and Mr Meiklem's witness evidence is consistent with the Islington Guidance. They say that the reference to "mid-twenties" in the letter of 27 October 2022 is a reference to this 25 years or older threshold."
"Where a welfare check was made and it was determined an assessment of age is needed a Brief enquiry of age as to age assessment will be required.
This assessment should take no longer than 4 hours to complete and be Merton compliant by way of ensuring 2 trained and qualified social workers are present alongside an Appropriate Adult and interpreter. The assessment cannot proceed if any of these parties are not present.
This Brief enquiry (as to age) form must be used and there must be a completion of a minded to process if a full age assessment is required or if the claimed child is determined to be an adult."
Age Assessment conducted by Sarah Edwards and Sheena Davi
99. The respondent focussed their oral submissions on the assertion that the age assessment is not Merton compliant because Ms Edwards did not assess the applicant's credibility, and did not probe the applicant or challenge him and instead conducted what the respondent describes as a "cosy chat."
100. We address the respondent's criticisms in turn. We do not accept that the assessors have given no weight at all to the applicant's physical appearance, wholly discounted the observations made by the Home Office and the respondent, or did not take into account the photographs of the applicant showing the applicant to be an adult. On the contrary, we are satisfied the assessors considered and addressed these matters in detail.
101. The assessors consider the applicant's physical appearance under the heading 'Physical Appearance and Demeanour.' Having reminded themselves that "physical appearance is not a reliable method of assessing age" they gave their observations "limited weighting", they noted the comments made about the applicant's physical appearance made by both the respondent and the Home Office. The assessors considered photographs of the applicant from his social media pages, concluding that they "bore little resemblance to him in person" and "appear to be heavily filtered". The assessors decided to give the applicant's physical appearance no weight because their observations supported his claimed age, but the photographs appeared to show that of an older male and therefore "show how unreliable [the applicant's] physical presentation is when assessing his age. It is clear from the evidence table that the assessors did not "wholly discount" the observations of the respondent and the Home Office. Whilst the assessors make criticisms of both assessments, they give them "limited" weight, not no weight at all.
102. We accept that the assessors did not identify the three discrepancies identified by the respondent.
103. We note that to be Merton compliant assessors are required to make an assessment of credibility and to ask questions designed to test credibility. However, we are not satisfied that those questions must be asked in a challenging manner as the respondent appeared to imply. We note the ADCS, Age Assessment Guidance (with which the assessors record that in preparation for the interview they re-familiarised themselves) states the following under the heading 'Questioning the child or young person':
"Building trust and developing rapport at the beginning of the interview process is vital, and it will support the child or young person to speak freely and provide a more detailed narrative to inform the assessment. Simple, open-ended questions should generally be used, and you should ensure that questions are not confusing, repetitive or oppressive. You must take a child-friendly and sensitive approach to questioning, including checking that questions have been understood and offering breaks. The child or young person should be asked their age and date of birth, and given the opportunity to explain how they know their age and date of birth. The purpose of the questions is to develop a picture of the child or young person's life and experiences, not to catch the child or young person in a "lie"."
104. We are satisfied that the assessors did ask the applicant questions designed to test his credibility. For example, the assessors recorded that they asked the applicant how he knew his age and when he told them his mother had told him they "further queried whether this was a 'one-off' conversation with his mother or a subject that was discussed frequently in his family." The assessors also record that there are photographs where the applicant does look older than his claimed age "which we pointed out to him."
105. We accept that the assessors have not provided the context for their reference to a 'time lapse' in the applicant's education history that was unaccounted for, but his school closing during COVID 'dramatically reduced the unaccounted gap in the timeline." However, the assessors have provided a "Timeline of other life events" in Appendix 4. It is apparent from reviewing the timeline that the 'time lapse' is because the applicant's account is that he started Year 6 in September 2018 and Year 7 in September 2020.
106. We also accept that the assessors do not identify the other professionals that they are referring to when they conclude that "the narrative the applicant provided was consistent with that given to all other professionals." However, when reading the report as a whole we understand that the assessors are referring to the fact that the applicant has consistently reported that his date of birth is 20 September 2007 as they record in the report at paragraph 5.1.2.
107. The assessors sought Mr Jackson's views themselves. Mr Jackson's witness statement, dated 25 September 2024, would not have been available to the assessors in June 2024. In any event, Ms Edwards considers his witness statement in her addendum report. The evidence table notes that Erinç Argun Kayim's "role exposes her to a range of individuals in the same position as [the applicant], who are disputing their claimed age", so the assessors were clearly aware of her role.
108. As outlined above, the respondent claimed that Ms Edwards had approached her addendum report with bias and it was put to her that it "is a desperate attempt to maintain her assessment." This is a very serious allegation to make about an independent social worker. Ms Edwards responded that it would not be in her best interests to do that. We are satisfied that Ms Edwards did not approach her addendum report with bias. Ms Edwards considered the new evidence and recognised that some of the evidence did "present evidence to dispute [the applicant's] claimed age," but she considered that overall "the evidence continues to suggest that [the applicant] is more likely to be under 18 years of age, and therefore he claimed age of 17 years should be accepted."
109. The respondent also put to Ms Edwards that she had misstated the law by referring to a "benefit of the doubt" principle. In response, Ms Edwards clarified that it was her opinion that Mr Jackson (whose evidence she is discussing) should have afforded the applicant the benefit of the doubt. We are satisfied that Ms Edwards was not claiming that the applicant should be afforded the benefit of the doubt on the basis of a legal principle.
110. We accept that there are some limitations to the assessor's age assessment and Ms Edwards addendum report. However, we are satisfied that the age assessment itself is Merton compliant and that Ms Edwards considered all the new evidence in the addendum report, giving clear reasons why she maintained her view as to the applicant's age. We therefore give it significant weight.
The applicant's account and family history
The applicant's account
111. The applicant has been consistent that his date of birth is 20 September 2007. It is recorded as his claimed date of birth in the Home Office assessment of his age undertaken on 4 December 2023, where it is also recorded that his mother told him his age and date of birth. It is also recorded as his claimed date of birth in the age assessment self-referral form. In their notes of the visit, Mr Sayed and Ms Couchman do not record the applicant's claimed date of birth, but do record that he "is very precise about his age" and "said his mother told him his year of birth of 2007." In oral evidence, the applicant explained that his mother had first told his year of birth and age when he started school, but after that she had told him his specific date of birth. When he was asked why she had told him that he explained, "When we sat together, talking with each other, she would mention that 'you were born this month'." The applicant also explained that when they started school the teachers would call out the pupils' names and dates of birth. We consider that both these descriptions are plausible ways in which a child would learn their date of birth.
112. We note that the applicant has given his father's age as 60 years old and his mother's age as 37 or 38 years old when he was visited by Mr Sayed and Ms Couchman, but that he explained to Ms Edwards that these were estimates and not based on specific knowledge. In any event, we do not consider that the applicant's father being in his 50s or 60s excludes the applicant from being the age he claims.
113. We have considered the applicant's evidence that he said he organised his travel himself in both his screening interview and to Mr Sayed and Ms Couchman, but that in his witness statement he says that his parents helped arrange for him to be taken to Libya and after that he travelled with other youths who contacted his parents to arrange for payment from his journey from Tunisia to Lampedusa. We accept that this is discrepant. However, we remind ourselves that a person may lie about certain matters, but be truthful about others and we do not consider it indicates that the applicant is not his claimed age.
114. We note that Mr Sayed and Ms Couchman recorded an additional sister in their notes of their meeting with the applicant. However, as recorded above we have concerns about the notes of that visit. In any event, we do not consider it material to our assessment of the applicant's age.
115. We note that the applicant does not claim to know the ages of his siblings, but has provided estimates of the ages of his full siblings. In respect of his older half-brothers, it is the applicant's case that he does not know the ages of B2, B3 and B4 and he has given different ages for MH. In his screening interview the applicant says that MH is roughly 33 years old, but now says that he is 25 years old. Mr Sayed and Ms Couchman record in their notes of their visit that the ages of the applicant's half-brothers are not given. The notes do not address why they are not given.
116. The applicant never lived with his half-brothers and considered them all to be older than him. We are satisfied that there is no reason why the applicant would know their exact ages. We will address Ms Couchman's evidence regarding the Facebook evidence later in our decision.
MH's evidence and age assessment
117. We have considered MH's written and oral evidence in detail as well as his age assessment, the handwritten notes of the age assessment and the points raised by Ms Couchman regarding MH's age assessment.
118. We do not place any weight on MH's written and oral evidence as to the applicant's age. We are prepared to accept that MH is aware that the applicant is significantly younger than him. However, we do not accept his claim to know the applicant's age. We did not consider MH to be a reliable witness and we note that Mr Persey did not ask us to place any weight on his evidence in his oral submissions.
119. Having reviewed MH's age assessment and accompanying handwritten notes we note that MH is described in the handwritten notes as being "upset", "tearful" and "shaking" at times.
120. The handwritten notes of the age assessment record that MH said the following in respect of the applicant: "I don't appropriately 2 years younger...". The following word could be "then" or "than". The age assessment itself records that MH has described the applicant as two years younger than MH which would make the applicant 23 years old. Ms Edwards' opinion is that MH is recorded as saying "I don't appropriately 2 years younger than" and it is not clear who MH is referring to the applicant being younger than. We consider that it is unclear what MH is saying, particularly as the sentence is prefaced with "I don't..." We are not persuaded that MH is describing the applicant as being two years younger than himself.
Facebook evidence
121. We have reviewed the Facebook evidence, exhibited with Ms Couchman's witness statement and her evidence as to what she considers that it demonstrates.
122. We do not find that the Facebook evidence assists us in determining the applicant's age.
123. We do not accept that it demonstrates that B3 is "undoubtedly aged 42", but we accept that it is cogent evidence that he is aged 42.
124. The applicant has never said that he knows B3's age. The respondent's notes of their visit with the applicant record that the applicant did not give B3's age, but told them that B3 had two children. Ms Edwards records that the applicant described all his half-brothers as being married and have children and in his first witness statement he explains that he does not know the exact ages of his half-brothers, but that they are all older than him and are married. In his third witness statement, responding to the Facebook evidence, the applicant emphasises that he has always maintained he does not know the ages of his half-brothers. Accordingly, B3 being 42 years old is not inconsistent with the evidence the applicant has provided. We consider that it is plausible that the applicant could be his claimed age and have an older half-brother who is 42 years old.
125. We note that it is MH's evidence that B3 is older than him, but that he does not know how much older, although we note MH described him as 20 years old in his age assessment.
126. We are not persuaded that we should infer that MH is in his mid-30s because he described B3 as being one to two classes above him in his age assessment. We note Ms Couchman's observations in respect of a photograph of MH on B4's Facebook page posted on 20 September 2015, when MH claimed to be 16 years old and that she considers that he looks in his late teens or earlier twenties. We are not persuaded that we can draw any conclusion as to MH's age from the photograph. We consider that it could be of a 16 year old or someone in the early twenties. It is not possible to tell.
127. MH was found to be his claimed age with a date of birth of 5 October 1998 after an age assessment. There has been no challenge to that age assessment and the respondent did not seek to persuade us that it was unlawful or not Merton compliant. On the contrary, the respondent seeks to rely on statements MH made during the course of that age assessment. Having reviewed the age assessment we are satisfied that it is Merton compliant and we are not persuaded to go behind the findings that MH is his claimed age.
128. We are not assisted by Ms Couchman's evidence that she considered the photographs of B4, on MH's page to show someone "at least in his mid-twenties" or her evidence that she considers the photographs of B5 on his own Facebook page to resemble someone "in their twenties or at least in their late teens." First, we do not agree with her observations that the photographs show people in their "mid-twenties" or in B5's case "at least in their late teens." Second, we note that a person's physical appearance should be treated with caution when assessing their age and we consider that it is even more the case when one is assessing their physical appearance through photographs posted on social media.
Witness evidence of professionals
129. We have addressed the witness evidence of Ms Couchman and Mr Sayed in the context of their assessment of the applicant's age, MH's age assessment and social media. We do not consider that there is any need to address it further.
130. We note that Erinç Argun Kayim genuinely believes the applicant to be his stated age. She explained that most of her contact with the applicant has been over the telephone and she has only met the applicant on two occasions prior to the hearing. We do not consider that her evidence assists us in determining the applicant's age.
131. Mr Jackson's evidence as to the applicant's age appeared to change over time. In a telephone call with Ms Edwards on 10 June 2024, Mr Jackson told her that he thought the applicant was over 16 years old, but not necessarily over 18 years of age. In his witness statement dated 25 September 2024, Mr Jackson explained that he did not feel able to adequately comment or give his professional opinion on the applicant's age because he had only attended one age assessment training. He did explain that he found it hard to believe that the applicant was his claimed age and believed him to be older, but could not say how old due to his lack of experience. Mr Jackson also commented that he had seen the applicant with a clear facial stubble, it was obvious the applicant shaves and that he had been shaving for a while. Mr Jackson did not explain how he was able to assess that the applicant had been shaving for a while.
132. In his oral evidence, Mr Jackson confirmed that he had seen the applicant approximately 8-10 times for approximately 40 minutes to 1 hour on each occasion. Mr Jackson also explained that since he wrote his witness statement he had received more training on age assessments so felt more confident to assess the applicant's age. Mr Jackson did not give his opinion as to what he considered the applicant's actual age to be, but he confirmed that it was his opinion that the applicant was an adult and it was possible he could be 36 years old. Mr Jackson considered that it was possible that the applicant could be 36 years old because "you never really know the true age of an unaccompanied asylum seeking child" and "you just have to keep an open mind to the possibility that they're much older than they say they are." We do not consider that we are assisted by Mr Jackson's evidence. Until his oral evidence, he had been very clear that he did not feel confident assigning an age to the applicant and, candidly, he at least implicitly doubted whether the applicant was the age claimed by the respondent. With respect, we do not regard Mr Jackson's oral evidence as adding anything of substance to what he had previously said, and his evidence as a whole does not carry material weight
133. Ms McFarlane has over three years' experience of working with young asylum seekers. She notes that when the applicant arrived in their placement her team interacted with the applicant "without considering he might be over 18." She also describes the applicant as receiving a high level of support and presenting "with many characteristics typical of a 17 years old, including friendships with others of a similar age and shared interests."
134. In her oral evidence Ms McFarlane explained that there are eight young people in the placement and that she works shifts at the placement, which encompasses day and night. In her witness statement she explains that when she refers to the applicant's friendships with those of a similar age, she is referring to his friends from college who visit him at the placement. She said she knows that they are 17 years old because they are required to provide ID when they first visit. Ms McFarlane stated that the only person who was older than 17 who had visited the applicant was MH. When it was put to Ms McFarlane that the respondent thought the applicant was an adult and possibly in his 20s, she responded "I just can't see it. Honestly, I can't see it. I don't see the difference between him and other 17 years olds personally." Ms McFarlane explained that there were safeguarding procedures in place regarding the appropriateness of young people being in the placement and that looking at the age range within the placement is more important than ever because they have started accepting females into the placement and they could not have a 16 year old girl in the placement with someone over the age of 18 years old. It was clear from her evidence that Ms McFarlane and her team did not consider there were any safeguarding concerns about the applicant being in the placement. We found her evidence to be reliable and deserving of real weight. She was entirely straightforward in her evidence, clearly committed to her role and responsibilities (including all relevant safeguarding procedures), and has been in a position to give evidence of relatively prolonged interaction with the applicant in the placement context.
135. We note that Katherine Crew, who works at the Union Chapel, also provided a witness statement. The Union Chapel has been contracted by Islington Council to provide well-being support for asylum seekers in local hotel accommodation. Ms Crew explained that she is not qualified to determine someone's age, but that the applicant's appearance and demeanour gave his claim sufficient credibility for her to refer him to the Refugee Council. We note that the applicant and respondent agree that no weight should be placed on Ms Crew's witness evidence. We have considered Ms Crew's witness statement, but we agree with Ms Edwards conclusion that her evidence is "neutral" and we consider that it does not assist us in determining the applicant's age.
Physical Appearance and Demeanour
136. Physical appearance and demeanour are relevant considerations, but ones which should be treated with caution. This is particularly so in light of potential cultural differences and the wide-ranging subjective views (often at a subconscious level) which might inform conclusions on a person's age.
137. We have considered all the evidence regarding the applicant's physical appearance and demeanour and indeed our own observations of the applicant's physical appearance in photographs and in court.
138. In terms of our assessment, the applicant's physical appearance is of little value to our overall task, but we do not consider that the applicant's physical appearance provides material support for the respondent's conclusion that he is 8 years older than his claimed age.
139. Overall, we do not regard the applicant's demeanour as representing a significant factor either for or against his claimed age and date of birth. On our assessment of the evidence, it seems to be the case that his attitude/demeanour/presentation differed according to the context in which it was perceived.
Conclusions
140. In light of the cumulative assessment we have undertaken and the findings set out above, we conclude that it is more likely than not that the applicant was 16 years old when he arrived in United Kingdom on 4 December 2023 and that he is now 17 years old.
141. We attribute the date of birth of 20 September 2007.
142. Without repeating what has gone before and emphasising the intensely fact-sensitive nature of this particular case, the essential reasons for our conclusion are as follows.
143. First, we have found that the applicant has been consistent as to his age and his date of birth at all times, stating that he was 16 on arrival in this country and maintaining that age to date.
144. Secondly, we accept the applicant's explanation as to how he knew his age and date of birth; i.e. his mother and teachers told him.
145. Thirdly, we acknowledge that the applicant has not been entirely consistent in all aspects of his own evidence and has sought to rely on the unreliable evidence of MH. However, we consider that it is more likely than not that inconsistencies and discrepancies in the applicant's evidence arose from issues with interpreters and pressure to provide definitive answers to questions the applicant did not know the answers to, such as his parents age. In any event, we remind ourselves that a person may lie about certain matters, but be truthful about others: the assessment of credibility is not necessarily an "all or nothing" exercise. In addition, there is almost always going to be doubt, but that is why the balance of probabilities plays an important part in age assessment cases. We have previously explained why MH's unreliable evidence does not materially undermine the applicant's case as a whole.
146. Fifthly, we have identified a number of material shortcomings in the respondent's assessment of the applicant's age and the new evidence relied on by the respondent in support of their claim that the applicant is an adult. We also note the respondent initially assessed the applicant to be 24 years old, but in light of MH's age assessment and Facebook evidence considers that he could be as old as 31 years old.
147. Sixthly, the applicant relies on a Merton compliant age assessment which we have afforded significant weight, which supports his claimed age.
148. It follows from the above that the applicant was a child when he arrived in the United Kingdom and at the date of this decision.
Disposal
149. The parties are invited to draw up an Order which reflects the terms of this judgment. The Order should address any ancillary matters, including any application for permission to appeal and costs.
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