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Reported Case

FS v London Borough of Croydon - Success in age-assessment judicial review (13 March 2020)

Date: 13/03/2020
Duncan Lewis, Reported Case Solicitors, FS v London Borough of Croydon - Success in age-assessment judicial review

We were successful in a judicial review concerning the Respondent’s – the London Borough of Croydon - decision to refuse to re-assess our client’s age. We were issued with a declaration that his date of birth is 1 July 2002 rather than his ‘assessed’ date of birth of 1 July 2000.


Background

Our client, the Applicant, is a citizen of Afghanistan who claims to have fled the country in or around May 2017 due to fears that he would be recruited by Daesh or the Taliban.

These fears were exacerbated by his paternal uncle’s flight to the US following his fears of adverse interest in May 2015. A year later in May 2016, the Applicant’s father disappeared after refusing to join the Taliban, sparking fears that he had been abducted. These fears resulted in his family arranging his passage from Afghanistan and he claims to have entered the UK clandestinely in November 2017. Upon presenting his Taskera (Afghan identity card) for review, he was revealed to be 15 years and four months old, however the Respondent determined his age to be 17 years and four months following their age assessment.


Case Summary

After obtaining further evidence we wrote to the Respondent making further submissions to request that the applicant’s age was reassessed. The further submissions also included an independent age assessment, witness statements from volunteers who had known the applicant at the Old Hamptonians’ cricket club; workers with the 'Refugee Cricket Project' or 'RCP', including an adviser with the Refugee Council children’s section; emails from the applicant's uncle in the United States; and a translation of a Taskera, purporting to indicate the applicant's age, which was consistent with his claimed date of birth. Despite these further submissions, the Respondent asserted that the documentation provided – including the Taskera – did not identify significantly material evidence to warrant a review or reassessment.

We submitted a letter before action enclosing information on the Applicant’s background history and asserting that the Respondent had failed to consider the new evidence. Following a dissatisfactory response we applied for judicial review in the High Court. Permission was granted to proceed to a full fact finding hearing in a decision on 23 May 2019 with proceedings being transferred to the Upper Tribunal.

The matter was heard over three days. Upper Tribunal Judge Coker gave further directions on 19 September 2019 at a case management hearing, which included that there would be no cross-examination of assessing social workers; but the fact that such assessors were not called to give oral evidence did not mean that the applicant was unable to make submissions on the assessors' contemporaneous notes; witness statements; or age assessment report.

Both the Applicant and Respondent provided a number of witnesses during the course of the hearing, with the witnesses and evidence that we provided for the Applicant deemed to be highly credible by the court.


Outcome

The judge accepted that there were some inconsistencies in certain aspects of the Applicant’s evidence, particularly in regards to his account of the circumstances in which he travelled from the lorry in which he had travelled to the UK clandestinely, to the SSHD’s offices in Croydon where he concluded that the Applicant ‘chose not to be frank’. However, he also found a number of weaknesses in the criticism of the Applicant’s credibility and despite some areas of concern in the Applicant’s account he overall found that;

“…the broad thrust of the respondent’s criticisms as to the applicant’s credibility are not sustained. For the purpose of these proceedings, there remains broad consistency in most of the applicant's core account.”

The judge found that the broad consistency of the Applicant’s account of fleeing Afghanistan coupled with the established circumstances in which the Applicant was likely to know his age, and the powerful evidence of caseworkers at the Refugee Cricket Project who were able to give detailed and specific reasons for why they believed that the applicant was more likely to be of his claimed age, having observed him for a far greater period of time than either the age assessors or the applicant's personal advisers; and whose evidence was corroborated by the Old Hamptonian Cricket Club volunteers, who once again had regular dealings with people of the contested age range and were able to give specific examples.

Upper Tribunal Judge Keith found;

“Standing back from the weaknesses in the respondent's criticism of the applicant, and looking at the totality of the evidence, both for and against applicant, I have come to the conclusion that it is more likely than not that the applicant is telling the truth about his age. The positive aspects of his case outweigh the negative aspects. I find that the applicant is more likely than not to have been born on 1 July 2002.”


Representation

Solicitor Claire Ryan of the public law and immigration department in Croydon represented the Applicant with Counsel Rowena Moffatt of Doughty Street Chambers.


 

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