Upper Tribunal finds young person from Sudan was a child when he arrived in the UK and orders local authority to provide support and services in accordance with the Children Act 1989
Background
This decision concerns a judicial review brought by a young person who arrived in the UK in July 2023 on a small boat after fleeing Darfur, Sudan, due to conflict in 2022. He then travelled through several countries over a period of 15 months before reaching the UK.
He arrived in the UK without any personal documentation evidencing his age and he applied for asylum on arrival. The young person said he was born in 2007 but was unable to indicate the day or month of his birth because birthdays are not celebrated where he came from. He explained that he knew the year of his birth after being asked about his age by a friend and later being told by his mother that it was 2007 – a memorable date due to an attack on the village where they lived and the resulting death of her friends.
The young person’s ‘claimed age’ was disputed by the Home Office based on “an assessment of his physical appearance and demeanour which was deemed to very strongly suggest that he was significantly over 18 years of age”. His date of birth was recorded by the Home Office as 1 June 1998.
Approximately one week later, on 1 August 2023, two local authority social workers (acting on behalf of a local authority in London) conducted an assessment and concluded that “[his] appearance and demeanour overwhelmingly suggest that [he] was an adult”. He was then taken (“dispersed”) to adult asylum support accommodation in Scotland.
Another age assessment was subsequently conducted in early September 2023 by social workers acting on behalf of the Scottish local authority who, “after a brief enquiry” of physical appearance and demeanour, concluded he was “significantly over 18 years of age”.
11 months later, in early July 2024, he was interviewed by two independent social workers who concluded that “there was more evidence to support the applicant’s claimed age than there was to dispute it” and recommended that his date of birth should be accepted as 1 January 2007.
The judicial review was brought on the young person’s behalf by his litigation friend.
The issue before the Upper Tribunal
The sole issue before the Upper Tribunal was the young person’s age and date of birth.
The role of the Upper Tribunal is inquisitorial, and it has the power to reach a conclusion that is different from both the claimed and the assessed age of the applicant.
The Tribunal’s decision is reached based on a “holistic assessment” and “the balance of probabilities”.
The legal framework
In paragraphs 3-7, the Upper Tribunal summarised the relevant law as follows (emphasis added):
-> (B) v Merton London Borough Council [2003] EWHC 1689 (Admin): “… there may be cases where it is very obvious that the person is over or under 18 and, in such cases, there is normally no need for prolonged inquiry. Physical appearance, behaviour and the credibility of the applicant’s account were all matters which reflect on each other. The age assessment could be done informally as long as ‘safeguards of minimum standards of inquiry and of fairness’ were observed. Except in clear cases, a decision could not be made on the basis of appearance alone. In an obvious case, appearance alone might provide the answer, ‘in the absence of compelling evidence to the contrary’”. -> R (Z) v Croydon London Borough Council [2011] EWCA Civ 59: “The Court of Appeal considered an appeal against the refusal to grant permission for judicial review. They made a distinction between obvious cases and borderline cases. It was for those whose age may be objectively borderline, between perhaps 16 and 20, that an appropriate and fair process of age determination may be necessary. The court concluded that the claimant claimed to be a child and was known to have mental health problems and therefore he should have had the opportunity to have an appropriate adult present. This was a factor to be considered when deciding whether permission should be granted.” -> R (HAM) v Brent London Borough Council [2022] EWHC 1924 (Admin): “… even though a young person’s age is a question of fact for the reviewing court, that does not reduce the need for a fair procedure. Fairness did not require a full Merton compliant assessment in every case. [The court] concluded that professional guidance, stating that an appropriate adult must be provided, was not a legal requirement. Whether it was unfair not to provide an appropriate adult would depend on the circumstances of a case. If credibility was an issue, the applicant must be given a chance to address points relevant to that. In considering a ‘short-form assessment’ [the court] stated that what was required was such ‘investigation as is reasonable on the facts of the case’. If the case was an obvious one, the inquiry may be brief and, in some cases, decisions may be based on appearance and demeanour alone. The local authority was obliged to do a reasonable investigation". -> R (SB) v Royal Borough of Kensington and Chelsea[2023] EWCA Civ 924: At paragraph 86 of the judgment, the court concluded: “Once permission to apply for judicial review has been granted, … the norm should be that the whole case is transferred to the [Upper Tribunal] … In most cases, the UT’s decision about the claimant’s age will enable the UT properly to consider the legal significance of any procedural flaw. It is undesirable for … two separate hearings in the same case [to take place], if, on analysis, the court is best placed to deal with the whole case in one hearing.” The same judgment concluded that there was no ‘one size fits all’ Merton compliant assessment and a fair process and reasonable investigation must underpin all assessments. What constituted ‘a fair process’ and ‘a reasonable investigation’ is specific to the individual circumstances of each case.
The Upper Tribunal’s analysis of the young person’s ‘claimed age’
The Tribunal acknowledged that it is not unusual for young people in similar circumstances to not know their exact date of birth because dates of birth in Sudan are considered less important compared to the UK, birth certificates are not automatically issued and births in rural areas are often unregistered.
The young person shared a consistent account of how and when he became aware of his year of birth and while “some variations” were noted in his account of his journey from Sudan to the UK, this was “understandable” given his limited education, experience of conflict and a 15-month distressing period of travelling to the UK.
Two discrepancies which were raised by the local authority in relation to the young person’s ‘claimed age’ were dismissed by the Tribunal as not significant to the issue of his age (they related to the date of the attack on his village which led him to leave Sudan and some of the details of his journey).
The young person’s legal representative noted that omissions in the young person’s account of his journey between Sudan and the UK could be linked to the traumatic nature of these experiences as well as the specifics of what questions were and were not asked by those who interviewed him. The Tribunal agreed that it is “not unreasonable … to fail to mention a traumatic memory until specifically asked” and that the inconsistencies raised “are explicable and understandable”.
The Tribunal also considered evidence given by the young person’s litigation friend who has known him since he arrived in the UK and who’s stayed in touch with him by telephone and video calls. She spoke about him being “confused and scared in the hotel”, needing support and relying on her for assistance and the “strong and lasting friendships” he made in Scotland with two other teenagers.
The Upper Tribunal’s analysis of Home Office, local authority and independent age assessments
Analysing and responding to the evidence submitted in support of the Home Office and the local authority age assessments, the Tribunal stated:
“We attach little weight to the decision of the Home Office attributing a date of birth of 1 January 1998 because it was made after a very brief interview and was based on physical appearance which is a notoriously unreliable basis for assessing age. We attach little weight to the assessment dated 1 August 2023 because it was based on physical appearance and demeanour. The description of the applicant failed to take into account his recent arrival in the UK on a small boat after a 15-month journey to the UK … We attach little weight to the brief enquiry by Aberdeenshire Council for the same reasons”. (Paragraphs 38-39 of the decision; emphasis added)
Scrutinising the evidence presented to the Tribunal by one of the local authority social workers who conducted the age assessment dated 1 August 2023, the Tribunal noted that their decision was based primarily on physical appearance and demeanour, that the level of inquiry was not that expected of an age assessment (i.e., following a fair process and conducting a reasonable inquiry which must be specific to each case) and that a Merton compliant assessment was not conducted.
Responding to the independent age assessment conducted in July 2024, the Tribunal noted that it was Merton compliant and that the social worker who conducted it and later gave evidence to the Tribunal “looked at the applicant’s case holistically and there were no defects in her methodology”. In her evidence to the Tribunal, the social worker said that “the applicant’s physical presentation was well within the range of 17-22 years old” and that in her view “his behaviour and demeanour were in line with his claimed age and at times he presented as younger and more immature than his claimed age”, that “his level of immaturity was reflective of his age and experiences” and that “he had a level of confidence … expected in adolescents and he lacked the skills commonly witnessed in an established adult”. She further noted “he was reliant on professionals in his life to support him and he sought out other adolescents to socialise with” and there was evidence he formed friendships with other young people.
The Upper Tribunal’s decision and directions
The Upper Tribunal judges said:
“In coming to our conclusions, we have taken into account all of the evidence before us and considered it in [full detail]. We have considered the applicant’s evidence with care making allowances for the traumatic experiences he is likely to have suffered in travelling from Sudan to the UK. We have considered the oral evidence and that set out in the witness statements in the context of the evidence as a whole. We have also made allowances for the fact that a child or young adult may have problems giving a coherent account of their history”. (Paragraph 17 of the decision, emphasis added)
The Upper Tribunal concluded that it was “more likely than not that the applicant’s year of birth is 2007” and declared the young person’s date of birth as 1 January 2007, confirming he was a child aged 16 when he arrived in the UK.
The Tribunal ordered the local authority to treat him, from that point on, in accordance with that age and to provide him with support and services in accordance with the duties set out in the Children Act 1989.
The Tribunal quashed the age assessment dates 1 August 2023.
You can read the full judgment here: ARIA v LB Hounslow JR-2024-LON-000862 (28 November 2024)
