Sudanese refugee “more likely than not” born in year he claimed, Upper Tribunal judge rules in age assessment dispute

The Upper Tribunal has allowed a Sudanese national’s claim for judicial review and declared him to be a child of 17 years of age, after his age was disputed by the Home Office on the basis of an assessment of his “physical appearance and demeanour”.

In ARIA v London Borough of Hounslow, Upper Tribunal Judges Frances and O’Brien concluded that the applicant was a child when he arrived in the UK, and that it was “more likely than not” his year of birth was 2007.

The tribunal judges said the applicant is a Sudanese national from Darfur. He fled Sudan in 2022 travelling through several countries in North Africa, Spain and France before entering the UK by small boat on 20 July 2023.

The applicant was interviewed by the Home Office on 25 July 2023 and stated his date of birth was 1 June 2007.

However, his age was disputed by the Home Office on the basis of an assessment of his physical appearance and demeanour which was deemed to “very strongly suggest” that he was significantly over 18 years of age. The Home Office recorded his date of birth as 1 June 1998, making him 25 years of age at that time.

As a result of the Home Office’s decision, the applicant was placed in an adult asylum-support hotel in Hounslow’s area.

In August 2023, on the request of the Refugee Council, a social worker from the London Borough of Hounslow held a meeting with the applicant to assess his age and also concluded that he was an adult.

The applicant was dispersed to adult asylum support accommodation in Aberdeenshire, where he remained at the time of the hearing.

Proceedings were issued in the Administrative Court seeking declaratory relief that the applicant was a child and entitled to support and accommodation under the Children Act.

Outlining the applicant’s case, the tribunal judges said: “The applicant claims to have been born in 2007 but he does not know the day or month of his birth. He lived in a village in Darfur with his mother, brother, sister and grandfather. […] He did not go to school. His did not think about his age or date of birth and did not celebrate his birthday.

“In 2018, he was playing with friends when one asked how old he was and he asked his mother who said he was born in 2007. She remembered the year because there was an attack on the village by the Janjaweed and one of her friends was killed.”

The Tribunal heard evidence from the applicant, his litigation friend (‘EK’), Ms Schofield (‘JS’), who prepared an independent age assessment report and NC, a social worker employed by the council.

The judges agreed that Ms Schofield’s was the only age assessment carried out in the applicant’s case which was consistent with the guidance in R (B) v LB of Merton [2003] 4 All ER 280 and R (AS) v Kent County Council (age assessment; dental evidence) [2017] UKUT 446 (IAC).

The judges therefore attached “significant weight to her opinions and conclusions.”

The tribunal judges said: “The applicant has given a consistent account of how and when he became aware of his year of birth. It is not unusual that he does not know his exact date of birth because there is not a great deal of attention paid to dates of birth in Sudanese villages and the significance of dates of birth in Sudan in general is considered less important than in the UK.

“[…] There was no indication the applicant had rehearsed his account or learned a false narrative. We accept the evidence of JS that he would not have been able to do so because he did not have the academic ability to create a false narrative that would stand up to scrutiny. We conclude it is not uncommon for the applicant to refine his account over time. We accept JS’s opinion that the applicant presents dates as fact when they are actually estimates because he gathers information from other people retrospectively and then works out the date. For example, the applicant accepted in cross-examination that he worked out he was 11 years old in 2018 after arriving in the UK. We accept the applicant has tried to provide information when asked and that there have been some difficulties with interpretation.”

The judges considered evidence from EK, who has known the applicant since he arrived in the UK.

EK submitted that the applicant requires her support in dealing with the hotel in which he lives and that he has made “strong and lasting friendships” with two other young people aged 17. The judges observed: “[EK] gave clear, consistent and objective evidence of the applicant’s reliance on her and his friendships with others under the age of 18. We attach weight to her evidence.”

The judges attached “little weight” to the assessments by the London Borough of Hounslow and Aberdeenshire Council, as both were based on physical appearance and demeanour which are “notoriously unreliable bases for assessing age”.

The Tribunal judges noted: “We attach little weight to the evidence of NC [social worker employed by Hounslow] because she accepted her decision was primarily based on physical appearance and demeanour. In cross-examination NC accepted she had not made notes on 1 August 2023 and she was relying on the notes of the other social worker present at the meeting which he had put into the system. She had not asked detailed questions about leaving Sudan as that was not the purpose of the meeting.

“The level of inquiry was not that of an age assessment and, after her meetings with the applicant in May 2024, NC went on to comment on the applicant’s credibility without following a fair procedure. These adverse credibility points were not put to the applicant and a Merton compliant assessment was not conducted.”

Concluding the case, the judges said: “Looking at all the evidence in the round, we accept the applicant’s year of birth is 2007 as he claimed because his account is credible and we attach significant weight to the independent age assessment report. We find the applicant was a child when he arrived in the UK.”

The Tribunal determined that the applicant’s date of birth is 1 January 2007 so that on arrival in the United Kingdom on 20 July 2023, he was 16 years of age.

The applicant was represented by Antonia Benfield of Doughty Street Chambers throughout the claim, instructed by Basmah Sahib and Javaria Ahmed of Bindmans LLP. He was supported by Erinç Argün Kayım of the Refugee Council as his litigation friend.

Basmah Sahib said: “This ruling should serve as a reminder to local authorities that long established age assessment principles have stood the test of time. Consequently, brief meetings to determine age, and age decisions which are predicted on appearance and demeanour, are unlikely to stand up to scrutiny at trial.”

Lottie Winson