Upper Tribunal judge finds refugee to be 17 years old, rejecting assessments by different councils that he was 22 or older

An age assessment carried out by the London Borough of Brent, which found an asylum-seeking person to be approximately 23 to 24 years old, was wrong, according to an Upper Tribunal (Immigration and Asylum Chamber) judge who concluded that the boy was 17 years old.

In R (K) v London Borough of Brent [2022] JR-2021-LON-001398, Judge Susan Virginia Pitt found that the weight of the findings of previous council age assessments was reduced by new evidence from a clinical psychologist who said his behaviour was "very typical" of an adolescent.

The boy, who has also been the subject of a previous High Court case which concluded he was wrongly held in an adult accommodation while awaiting an age assessment, was found by police in Leicestershire and registered as an asylum seeker in November 2019.

His date of birth was recorded by the police as 10 February 2005, and, after a referral to children's services, an age assessment was scheduled.

When the assessment concluded in June 2020, Leicestershire County Council found the boy to be 22 years old when he arrived in the UK and 25 years old at the time of the assessment.

The judge said that on the surface, the assessment appeared to be carried out well. Two experienced social workers who were trained in age assessment conducted the process, an appropriate adult was present at the meetings with the applicant, and they took into account a wide variety of sources of evidence, the judge noted.

They explicitly took into account the difficulty in assessing age, that there is no reliable medical or scientific way to establish age and that the trauma from separation from family and home and the journey had to be taken into account, the judge acknowledged.

The assessment relied heavily on the interpretation of the boy's "demanding" and "aggressive" behaviour and demeanour as indicative of him being an adult. It highlighted instances in which his behaviour was challenging and risky. For example, staying out overnight and refusing to provide details of who he had been with and an instance of smoking in his bedroom after taking out the battery of the smoke alarm.

He was later moved to adult accommodation in London, eventually being placed in a Holiday Inn for adult asylum seekers in Brent.

Following this, Brent conducted its own assessment, which found the boy to be approximately 23 to 24 years old.

The assessors highlighted the applicant's history of providing different dates of birth, including a date of birth used to obtain a mobile phone which showed him to be an adult and had also been inconsistent as to how he knew his age. They also said his physical appearance and demeanour showed him to be an adult.

They noted that the applicant appeared mature because he was independent, confident and knowledgeable and also highlighted that his evidence about his family and social background was vague and not capable of supporting his claim about his age.

In addition, the Brent assessment referenced the LCC age assessment's conclusion that found him to be an adult.

The Upper Tribunal heard evidence from Dr Argyriou, a Senior Clinical Psychologist at the Helen Bamber Foundation, who specialises in assessing and providing treatment to survivors of chronic trauma, including adults and young people.

She met the applicant for a psychological assessment in February 2021 and diagnosed him with PTSD and depression and with symptoms of an emerging emotionally unstable personality disorder.

She amassed 14 to 15 hours of clinical contact with the applicant between February and July 2021 before telling the court that "it is abundantly clear to me that [the applicant] is a child". She found that the applicant's challenging behaviour - including his suicidality, self-harm, anger, impulsivity, mood swings and testing of boundaries - was "very typical" of an adolescent.

The doctor added that the applicant's demanding behaviour that the local authorities' age assessments saw as indicative of adulthood was typical of a less mature brain in which the pre-frontal cortex was less developed.

Counsel acting for the local authority did not question Dr Argyriou's qualifications, experience or expertise and the diagnosis of PTSD, depression and emotional dysregulation was not disputed. However, the local authority submitted that Dr Argyriou's evidence had to be tested in the round against all of the other evidence.

It made the following claims in response to her assessment: 

• She was not trained in age assessment.
• Her opinion did not take into account the concerns set out by social workers who were experienced and trained in age assessment or the opinions of a number of those working with the applicant who considered him to be much older than his claimed age.
• She did not analyse the applicant's discrepant evidence on his age and how he knew his age.
• Her assessment of the applicant did not take into account that he had not always been truthful, for example, the incident in hospital on 12 August 2021 when tests indicated that he had not taken an overdose as he claimed.
• His evidence to her about his life in Iran being difficult was not consistent with his evidence as to staying at home a great deal, getting up late and playing games.

"I  considered Dr Argyriou's evidence in light of the respondent's submissions but it remained the case that I found it to be strong and that it attracted significant weight," the judge said.

She took into account that Dr Argyriou was not trained in age assessment but highlighted the doctor's training and experience in developmental psychology and in observing how mental health presents in different developmental stages and at different ages.

When it was put to her that the applicant could be pretending to be a minor, Dr Argyriou was "very clear" that this was not at all consistent with his clinical presentation and that it was features of his presentation which had informed her view of his age, not his claims as to his age, the judge added.

In concluding, the judge said: "Bringing all of the above together, it is my conclusion that the weight attracting to the LCC and the LBB age assessments is reduced by the evidence on the applicant's mental health and how this impacts on his behaviour and presentation. The LBB age assessment has other shortcomings which reduce the weight that can be placed on it.

"The applicant's evidence on his age is also unreliable as it is very inconsistent. The remaining evidence adds little to the question of the applicant's age.

"I am therefore left with very little to assist me in deciding on the applicant's age. The most reliable evidence I have is that of Dr Argyriou. Dr Argyriou's view was that, independent of the applicant's age, she adapted her approach to working with him on the basis of his presentation which was as a 15 to 16 year old child."

The judge added: "She made that assessment approximately a year prior to giving her evidence in February 2022. That would make the applicant, taking the higher age, 17 years old now. That corresponds without material difference, to the age that the applicant gave on arrival, 10 February 2005. Where this date of birth is supported by the evidence of Dr Argyriou, I find that it is the most reliable one that I can attribute to the applicant."

The judge found that the applicant's date of birth is 10 February 2005 and that he was 14 years old when he arrived in the UK in November 2019, making him 17 years old now.

A Brent Council spokesperson said: "Brent is a welcoming borough and the council has supported lots of unaccompanied children seeking asylum.

"This case is unusual in that KS's age assessment was undertaken by another local authority, concluding that they were 22 years old in 2020. KS did not challenge that assessment and, subsequently, the Home Office placed them in hotel accommodation in Brent. After being approached by KS, we undertook another age assessment and came to a similar conclusion – that KS was over the age of 18. KS challenged our assessment and this went to a Tribunal in February 2022.

"After being presented with a new psychological report by KS's legal representatives, the Tribunal Judge felt that KS's mental health diagnosis and the expert evidence of how that diagnosis affects his behaviour was typical of an adolescent. As a result the Tribunal Judge determined that KS is a child aged 17 years old.

"We have reflected fully on the judgement. We recently invested in establishing a specialist in-house team of age assessors in order to respond to rising demand and the implications for practice in this area of work from this case have been shared with them."

Adam Carey