Asylum seeker wins age assessment case against London borough

An Iranian asylum seeker has won a tribunal case over whether or not he was aged under 18 when he reached the UK in a ‘small boat’ from France.

Khatija Hafesji of Monckton Chambers represented applicant RK. The set said it was “of note that the tribunal accepted that the ‘short-form’ assessment of the applicant’s age carried out by the Kent Intake Unit should not be afforded ‘any weight’ by the tribunal either as evidence of the applicant’s age or as evidence concerning the applicant’s credibility”.

Monckton also pointed out that the tribunal accepted RK’s failure to produce an identity document should not support an adverse inference against his claimed age, and accepted his submission that since his relationship with his social worker was not “characterised by trust” this affected the weight the tribunal should attach to her evidence as to his age.

The case brought by RK against the London Borough of Newham was heard in the Upper Tribunal (Immigration and Asylum Chamber) by Upper Tribunal Judge Reeds.

He made a declaration that RK was born on 23 October 2005, and so had been nearly 16 on or about 12 October 2021 when he entered the UK.

The judicial review challenged the age assessment decision as not ‘Merton’ compliant, and argued the interview to determine his age had been procedurally unfair and that its reliance on RK’s appearance and demeanour was unfair and irrational.

There was no dispute that RK is now an adult but  the case affected whether Newham was required to continue support and accommodation as a ‘former relevant child’ under the Children Act 1989.

The judge said it appeared immigration officials had recorded that that RK had been 22 when he arrived in the absence of documentary evidence and based on the applicant’s physical characteristics, demeanour and their experience.

Judge Reeds said it was submitted that RK’s account of his life in Iran, journey to the UK and date of birth was plausible, internally consistent and consistent with a life described of growing up functionally illiterate, in a poor family, working as a shepherd and not attending school.

He heard RK had not sought official Iranian documents for fear of contacting family there as doing so might endanger them for political reasons.

Newham argued that in unclear cases, age could not be determined on appearance alone, but that physical appearance was still an important factor upon which great weight should be placed and perhaps even pre-eminent weight. It was submitted that the claim would be decided by RK’s physical appearance and credibility.

Judge Reeds said the age assessment report “does not appear to be consistent with the other documents in the additional disclosure”. Parts were missing, and the assessors ticked the box ‘clearly an adult’ without specifying the assessed age.

He said: “Looking at the interview notes themselves, the notes end in such a way that it gives the appearance that it is incomplete.Parts of it, but not all, is of poor quality.”

The judge noted there were grammatical errors, incomplete sentences and unexplained gaps in the questioning while statements were attributed to RK that did not appear in the interview note.

“It is not possible to know whether the interview note is complete, given its general difficulties and it is not known when the report was prepared,”the judge said. “Nor is there any information from the social workers themselves as to how this assessment was conducted.

“In light of those matters properly identified I place no weight on the age assessment report as evidence of the applicant’s age. Nor do I place any weight on the contents of the reports where it points to credibility issues that are either adverse to the applicant or in favour of the applicant given the inherent difficulties with the procedure adopted, the contents of the documents themselves and also by reference to the timing of the interview.”

He said the interview report could not be “viewed as representing accurate responses of what he said in view of the intrinsic problems identified in those documents…this is not evidence upon which I can draw any safe conclusions either against or for the applicant”.

Its reasons for not believing RK’s account of growing up in a poor family “are difficult to follow”, the judge added.

Judge Reeds concluded: “I have not found this a straightforward or easy case to decide and there have been weaknesses in the evidence on both sides.

“There is an aspect of the applicant’s evidence which relates to the applicant having given a date of birth in an unknown country. It was not explored in oral evidence, and nothing is known as to what that date of birth was other than that it was not the date of birth he relies on.

“This is a relevant matter which I have had to weigh in the balance when undertaking an overall assessment of the evidence and in particular the credibility of the applicant’s evidence.”

Mark Smulian