Age assessment and social media evidence

The Upper Tribunal has provided guidance on social media evidence in age assessment cases. Donnchadh Greene examines its ruling.

The Upper Tribunal (Judge Blundell and Mr CMG Ockelton, Vice President) issued guidance about the use of social media evidence in the context of age assessment proceedings in R (BG) v London Borough of Hackney.

The Applicant, BG, whose age was disputed by the local authority, the London Borough of Hackney challenged the new standard directions made by the Upper Tribunal which required unaccompanied age disputed asylum seekers to give their username(s) and password(s) for their social media accounts to respondent local authorities to inspect, as well as requiring them to download a full timeline of their activities on Facebook and locations of access. 

BG argued that the directions were incompatible with his article 8 and 10 rights under the European Convention on Human Rights and were too broad and ill-defined to be proportionate, sufficiently clear and specific to be capable of fair and effective compliance with the duty of candour.

The Upper Tribunal held that requiring an applicant to surrender their login details and have their social media accounts scrutinised (as per the standard directions) is unlikely to ever be proportionate under article 8 in circumstances in which the Applicant has confirmed that they have complied with their duty of candour (§65). The Tribunal must also be aware of the need to consider whether a less intrusive measure could be used when considering proportionality. 

While a Respondent is entitled to make an application for specific disclosure of social media material, any such application must have a trigger and a target (§§67-68). The test will always be “whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly” (§63). Fishing expeditions remain impermissible, and a Respondent is not entitled, without more, to have access to an Applicant’s entire social media footprint, particularly given the privacy concerns that arise in this context, as highlighted in the expert report of Dr Veale (§64).

The Upper Tribunal also made some observations on disclosure in the First-tier Tribunal in light of age assessment cases being due to transfer to the First-tier Tribunal under Nationality and Borders Act 2022. It was noted that there appeared to be no impediment to the First-tier Tribunal making similar orders, despite there being no similar duty of disclosure applicable to appeals in the First-tier Tribunal (§§71-73).

A link to the judgment is available here. 

Donnchadh Greene is a barrister at Doughty Street Chambers. He was led by Amanda Weston KC of Garden Court Chambers and instructed by Cecilia Correale of Joint Council for the Welfare of Immigrants on behalf of the Applicant. An expert statement was provided by Dr Michael Veale, Associate Professor of Digital Rights and Regulation, University College London. A witness statement was also provided by Edward Taylor of Osbornes Law. Antonia Benfield, also of Doughty Street, is representing the Applicant in his substantive challenge to the Respondent’s age assessment.