ZU, R (On the Application Of) v Kent County Council [2022] UKAITUR JR015402021 (6 July 2022)

Upper Tribunal

(Immigration and Asylum Chamber) JR/1540/2021

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 14 and 15 June 2022
	.......................................

Before

UPPER TRIBUNAL JUDGE LANE

Between

THE QUEEN

on the Application of

(By his Litigation Friend, the Official Solicitor)

Applicant

And

KENT COUNTY COUNCIL

Respondent

SOUTH GLOUCESTERSHIRE COUNCIL Interested Party

Representation:

For the Applicant: Mr Fripp, instructed by Duncan Lewis, solicitors

For the Respondent: Mr Hoar, instructed by Kent County Council

JUDGMENT

Background

1. The applicant is a male citizen of Pakistan. The following summary is drawn from the Agreed Statement of Facts filed by the parties at the Upper Tribunal.

2. The Applicant states that he is from Gabarai village in Bajaur, until 2018 an agency in what were called the Federally Administered Tribal Areas, but since that year a district in Khyber Pakhtunkhwa province, Pakistan. Bajaur District is a remote mountainous area just within Pakistan, near the international border with Afghanistan.

3. On 27 March 2020 the applicant was in Slovenia, according to a EURODAC trace. The Slovenian authorities record him as having absconded on 19 May 2020 and his file was closed on 18 June 2020. No age assessment was carried out in Slovenia.

4. The applicant arrived in the United Kingdom on 22 July 2020 by small boat from France. The Applicant sought international protection on or soon after arrival.

5. On his arrival, the respondent became responsible for the applicant's welfare. On 22 July 2020, the Applicant is placed with Fay Nicholson as foster carer, on an emergency placement. As at the date of the final hearing, the applicant remains with Fay Nicholson on a 'staying put' arrangement with the interested party, which is now responsible in law for the applicant's welfare.

6. The applicant claims that he was told by his mother before he left Pakistan that he had been born on 10 May 2006. No documentary evidence of the applicant's date of birth exists. An expert witness instructed by the applicant, Ms Uzma Moeen, states that there exists no system of formal or informal registration of births in the tribal areas of Pakistan. That evidence was not challenged and the absence of documentary evidence of the applicant's birth has not been an issue in the application.

7. On 14 September 2020, Fay Nicholson was asked by social workers to comment on the applicant's age. She stated, 'It is not easy to say what age [the applicant] is, because there are times when he seems to be mature and at other times he has a younger child action. He appears to look 15 years and 4 months old, however some children look younger or older than their age' and 'My guess is he looks 15 years and 4 months old' (this would indicate a date of birth of May 2004).

8. On 16 October 2020, the applicant's allocated social worker was asked her advice re applicant's age and stated, 'I am of the view that [the applicant] is older than his claimed age. His physical appearance clearly indicates that he is a young adult between 16 and 18 years' (indicating a date of birth between October 2002 and October 2004).

9. An initial age assessment was carried out by the respondent's officers on 2 October 2020. Following three further interviews, the age assessment was completed on 19 November 2020. The applicant's age is assessed as 17 years and 6 months at that date (a date of birth of 10 May 2003).

10. Permission to apply for judicial review was refused on the papers on 29 April 2021. Permission was granted on oral renewal on 14 July 2021.

Legal Framework

11. Part III of the Children Act 1989 ("the 1989 Act") imposes a range of duties on local authorities in respect of children within their area who are in need. Section 17 of that Act, for example, obliges local authorities to safeguard and promote the welfare of such children and to provide a range and level of services appropriate to their needs. Section 20(1) of the Act requires that every local authority 'shall provide accommodation for any child in need within their area'. By section 23C of the Act, a local authority may continue to be obliged to perform certain functions in respect of a 'former relevant child' (or a person who should be treated as such ) even after that individual has attained the age of eighteen.

12. By section 105(1) of the 1989 Act, 'child' means a person under the age of eighteen. In R (A) v London Borough of Croydon [2009] UKSC 8; [2009] 1 WLR 2557, the Supreme Court held that whether a person is a child is a question of precedent or jurisdictional fact to be determined by the courts: per Lady Hale at [32], with whom Lords Scott, Walker and Neuberger agreed, and Lord Hope at [51].

13. In R (CJ) v Cardiff City Council [2011] EWCA Civ 1590; [2012] PTSR 1235, Pitchford LJ (with whom Laws LJ and Lloyd Jones J agreed) held that the nature of the court's enquiry under the Children Act is inquisitorial and that it was inappropriate to speak in terms of a burden of establishing a precedent or jurisdictional fact: [21]. The court is required to apply the balance of probability without resorting to the concept of discharge of a burden of proof, and that a 'sympathetic assessment of the evidence' is appropriate.

The Hearing

14. The final hearing took place at Field House, London on 14 and 15 June 2022. Mr Fripp appeared for the applicant and Mr Hoar for the respondent. The interested party was not represented. I am grateful to both counsel for their constructive approach to the efficient consideration of this application.

15. At the outset of the hearing, I approved an order by consent for additional evidence of the applicant to be admitted notwithstanding that it had been filed and served late.

16. I heard oral testimony from the applicant who gave his evidence with the assistance of a Pashtu interpreter. Whatever age I ultimately attribute to the applicant, he is a young person who has travelled to and now lives in the United Kingdom without face to face contact with any family members. He presented as a fit and intelligent individual who appeared to have little difficulty giving evidence before the Tribunal but I have assessed his evidence having regard to his circumstances (there is evidence from a clinical psychologist, Dr Amolafe, that the applicant may exhibit symptoms of PTSD). I am aware also that the applicant comes from a cultural, educational and social milieu in a remote area Pakistan which differs considerably from the society in which he now finds himself.

17. I also heard evidence from Fay Nicholson, the applicant's foster carer. I told both counsel during submissions that I had no doubt whatever that Fay Nicholson had sought to give truthful evidence to the Tribunal throughout.

18. Having heard the oral evidence of both witnesses and the oral submissions of the advocates, I reserved my judgment.

19. I have a comprehensive bundle of documents in both electronic and paper form. I have considered all the evidence before reaching any settled findings of fact. The fact that I have not referred to a specific item of evidence does not mean that I have ignored or overlooked it. I do not propose to set out the evidence received in extenso. I have addressed all relevant evidence in the discussion and findings which follows below.

Discussion

20. During the course of the evidence, aspects of the applicant's physical and emotional development were addressed. I shall consider these in turn.

21. Teeth : On 20 October 2020, Fay Nicholson took the applicant to a local dentist. Fay Nicholson said that the applicant had been complaining of pain at the back of his lower jaw. The (very brief) report from Jazz Dental Practice records, under the heading Discussion and Recommended Plan, that the applicant should brush 'well around wisdom teeth.' The report also contains the words 'adult dentition' without further explanation.

22. In her oral evidence, Fay Nicholson said that she did not know whether the tooth which the applicant complained was hurting was a wisdom tooth. She admitted that she 'did not have a clue about wisdom teeth.' She said that there had been no discussion with the dentist during the brief examination. The applicant's teeth were not considered by the assessing social workers. In his oral evidence, the applicant said that the painful tooth had been at the back of his right lower jaw.

23. It is unfortunate that the dentist's report was produced at a very late stage in the proceedings, leaving no time for a more detailed examination. The case law repeatedly warns against relying on dental development as an indicator of age. In R(M) v Waltham Forest LBC [2021] EWHC 2241 (Admin), the dental evidence before the court was significantly more extensive. The court record a dentist as stating, 'At [the Claimant's] visit here ... I mentioned to his carer that wisdom teeth, the third molar teeth, and the last adult teeth to come through, normally emerge between 17-21 years of age. The average being at 19 years of age." The dentist continued, "According to the dental charting, it seems that the [Claimant's] upper left and upper right third molar/wisdom teeth are through." The letter also noted that the Claimant's second molars were "grossly carious and broken down".' None of that detail is available in the present case. In R (on the application of AM) v Solihull Metropolitan Borough Council (AAJR) [2012] UKUT 118 (IAC), the Tribunal stated:

18. The other sign of physical maturity to which we must make reference is that relating to the eruption of the third molar. As the paper by Olze and others, 121 Int J Legal Med 445 (2007) makes clear, both racial and sexual differences are observable. There are no figures for Afghan males: perhaps there could not be, because of the difficulty about accurate aging to which we have referred. But it does appear that it would be right to say that the full emergence of the third molar is typically a characteristic of adulthood rather than adolescence. It would be quite wrong to say any more than that. We are, we hope, fully aware of the dangers of misuse of material of this sort. But these two physical features seem to us to be so characteristic of the period of adolescence having finished that it may be right to give them some weight, although they will, we think, never be of any help in picking an age within the teenage years.

24. The absence of any research data from Pakistan renders any attempt to extrapolate studies which have focussed on other ethnic populations hazardous. That would be the case even if we had a detailed dental report which indicated exactly how many and which wisdom teeth the applicant may have. The words 'adult dentition' in the report may mean that the applicant has all or some of his wisdom teeth but they may also mean (as Mr Fripp submitted) simply that the applicant has lost all his baby or milk teeth. Likewise, the advice 'to brush around wisdom teeth' but be prospective rather than current; the applicant will in any event have to deal with all his wisdom teeth in due course.

25. However, I find that there is force in Mr Hoar's submission that the fact that the applicant had any wisdom teeth (and the evidence, no matter how scant, indicates that he had at least one) plainly goes against his claimed age in October 2020 of 14 years and 5 months. The age at which wisdom begin to emerge (17-21 years of age, according to the dentist in Waltham Forest, a statement with which Mr Fripp did not take issue) may vary across different ethic demographics but I find that it overstayer reasonable to consider that any variation across populations for the initial emergence of wisdom teeth is likely to be as great as three years.

26. Facial Hair: The assessing social workers considered it 'likely ... the [the applicant] had been shaving before he left Pakistan based on the prevalence of rough stubble.'

27. Fay Nicholson said in oral evidence that she 'did believe that [the applicant] had facial hair in October 2020' At around that time, she had noticed 'stubble under [the applicant's] chin' and, after the applicant had asked how he should remove hairs on his face, she had arranged to take him shopping for shaving equipment. She also said that she did not believe that the applicant had been shaving when he arrived in the United Kingdom in July 2020. In his oral evidence, the applicant corroborated Fay Nicholson's account. He denied having begun to shave before October 2020 and whilst still in Pakistan.

28. I was shown a colour photograph of the applicant from July 2020 [I339] when the applicant had been granted immigration bail. Mr Hoar put it to both witnesses that the photograph shows that the applicant had stubble on his chin. Fay Nicholson said that the applicant is, in her opinion, 'naturally hairy'.

29. During one of the assessment interviews (3 November 2020), the applicant had been asked when he had started shaving facial hair. He was asked, 'Do you know when [you started shaving]? In this country?' He replied, 'I had a really little bit [of facial hair] in France so then I started to shave.'

30. Mr Hoar submitted that the applicant's response showed that he had started shaving whilst still in France so at a time when (on his own evidence) he had only been about 14 years old. I disagree with that submission. There is no inconsistency between the applicant's statement that he only started shaving after he reached the United Kingdom and his response at interview that he had 'a really little bit' of facial hair in France. The interview response does not necessarily only admit the interpretation that he both had facial hair and began shaving in France.

31. I found the photograph unhelpful. It may show that in July 2020 that the applicant had facial hair or even stubble on his chin but equally it may show a dark shadow between his chin and his neck caused by lighting in which the photograph was taken. I also cannot see in the photograph the Adam's Apple which Mr Hoar submitted I should note. In my opinion, the photograph takes the matter no further forward in either direction.

32. I find on the evidence (including that of Fay Nicholson and the applicant himself) that the applicant began shaving for the first time in or about October 2020. I find that the assessing social workers were wrong to consider that the applicant had been shaving before he came to the United Kingdom.

33. That finding, however, does not greatly assist my assessment of the applicant's age. I take judicial knowledge that teenage boys start shaving from about 13 or 14 years of age whilst some may not do so until their later teenage years.

34. Other physical characteristics: Fay Nicholson acknowledged that the applicant had grown considerably since he has been in her care. When he arrived, he was shorter than her, now he is taller. In AM, the Tribunal found:

17. Looking at the authorities and the literature as we have, it appears to us that there are two physical indicators which may be of some assistance, but only at the very top end of the range. The first is general growth. As an individual matures, he increases in height, and then his body fills out, so he increases in weight. When his body is mature, the rate of increase of both height and weight drops very considerably. Unless he is becoming obese, there comes a point when there is little change in either. That is a matter that cannot be assessed by a single measurement. Nor do we think that very much assistance can be gained by attempting to assess any perceived difference or levelling off in the individual's increase in height or weight. Where, on the other hand, accurate measurements of the claimant's height and weight are available extending back over a considerable period of time (say 18 months or more) and show no, or no significant, change, we think that that is likely to be a sign that the individual is now over about 18.

18. ... we are, we hope, fully aware of the dangers of misuse of material of this sort. But these two physical features seem to us to be so characteristic of the period of adolescence having finished that it may be right to give them some weight, although they will, we think, never be of any help in picking an age within the teenage years.

35. There is no evidence that the applicant has stopped growing. In the circumstances, I attach very limited weight to evidence concerning the applicant's growth since he entered the United Kingdom.

36. Mr Fripp's Note of 15 June 2022 refers to the applicant's voice and jawline but these characteristics were not addressed in any detail at the hearing. It is clear that the applicant's voice has broken but evidence as to when it broke was not available. In any event, the same caveats arise here as in the assessment of other aspects of the applicant's' physical development.

37. Emotional Maturity: The clinical psychologist, Dr Komolafe, observed that the applicants behaviour reflected a 'level of emotional maturity most likely to arise in young adolescents.' It seems that the applicant conducted his Zoom interview with the expert whilst he was still in bed. Mr Hoar submitted that I should view such behaviour as a calculated attempt to feign immaturity.

38. I was struck by the applicant's apparent ability to follow much of the Tribunal proceedings in English, a language which he is still only just beginning to learn. He presented as an intelligent individual. He refrained from eye contact when he struggled on occasion during cross examination to explain parts of his evidence ( see below, in particular when giving evidence of the ages of his family members and whether he had been fingerprinted in Slovenia) but, frankly, such behaviour is common in witnesses of all ages. I do find that the applicant is emotionally quite immature. I find his conduct during the psychologist's interview is more likely to reflect genuine immaturity rather than a premeditated effort to appear immature in order to deceive others as to his true age (I note that assessing the applicant's age was not the purpose of the expert psychologist's involvement in any case).

39. The applicant's evidence: credibility: I have already noted the applicant's youth, the society from which comes and the indication (but not final diagnosis) of PTSD. It is in the context of these factors that I have considered the credibility of the applicant's evidence.

40. In the applicant's evidence, both written and oral, two clear issues arose which both counsel addressed in submissions. First, the applicant gave contradictory statements regarding having been fingerprinted in Slovenia. He failed to mention the fingerprinting at all in his first Home Office interview; said that he had only been in Slovenia for a day in his age assessment interview before then claiming that he had stayed there for 2 months; denied to the age assessors having been fingerprinted in Slovenia or any other country en route to the United Kingdom before, in a subsequent interview, claiming that he had been fingerprinted in Bosnia (which he had not, so far as EURODAC records indicate). The applicant had subsequently acknowledged that he had been fingerprinted in Slovenia as he confirmed again in oral evidence. The applicant's account of his journey to the United Kingdom is also, as Mr Hoar contended, prima facie implausible. It seems unlikely, for example, that the applicant could have travelled overland from one side of Iran to the other in only one day (approximately 1500 miles).

41. Secondly, the applicant was asked about the ages of his close family members in Pakistan. He has claimed that his mother is 35 and 40 years old and that his sister is 35 or 25 and that his father was either two years younger or 2 years older than his mother. He was unable to provide any explanation when it has been pointed out to him that his mother cannot be only 5 years older (or the same age) as her own daughter.

42. The applicant's evidence about fingerprinting is damaging to his credibility. It was clear from his written and oral evidence that he claims to have lied to authorities in the countries through which he passed (including providing a false name) but that he immediately switched to telling only the truth once he had entered the United Kingdom. That claim is palpably false. The important question, however, is whether the applicant's conduct indicates that he is lying about his true age. In my opinion, his answers about fingerprinting reveal some confusion in the applicant as to how those questioning him would respond if they knew that he had been fingerprinted and made a claim for international protection in Slovenia or elsewhere in Europe. I find that it is likely that he has been told (possibly by the people smugglers, perhaps by other asylum seekers) that he needed to conceal the truth about fingerprinting but that he was not fully aware why he had to do this. If he had a mature understanding of the relevance of fingerprinting and the asylum claim he made in Slovenia, then it is not obvious why he should have volunteered the false information that he had been fingerprinted in Bosnia. I find that the applicant knew he was lying to the age assessors and the Home Office and I do not accept his claim that that he has told the truth since he entered the United Kingdom. However, I do not find his erratic attempts to dissemble reveal a calculated plan to conceal his true age.

43. I take a similar view of the applicant's evidence regarding the ages of his family. First, I find that none of the various ages he has provided for his parents render either his claimed age or that of the age assessors obviously implausible. Beyond that, the ages of his parents or siblings are not relevant to the core of his claim. Secondly, the answers he gave were palpably impossible. Had the applicant wanted to deceive, he would have given plausible answers. I find that the applicant lacked the intellectual maturity to give plausible false answers. I find that, in common with many children or young adults, especially those from societies which do not record or celebrate birthdays, the applicant has no idea how old his parents or siblings are; the ages of much older adults are of little, if any, interest to him. I find that he gave the answers he did simply because he was asked to give an answer and thought that he would continued to be asked until he did; in short, he gave random answers because he wished to satisfy his interrogators and bring the interview to a close. His account of the ages of his family members emphasises his intellectual immaturity rather than a propensity to deceive.

44. Expert Evidence : The expert reports were not discussed in detail at the hearing. I agree with Mr Hoar that the report of the country expert adds little to issues which the Tribunal needs to decide. Whether or not the applicant's asylum claim is credible is not a matter for this Tribunal. Dr Komolafe, as I have noted above, was not instructed to assess the applicant's age but rather to determine whether he is suffering from PTSD. For the reasons given by Mr Hoar in his skeleton argument at [65], Dr Komolafe's findings do not 'carry over' into the Tribunal's assessment of the applicant's credibility still less his true age.

Conclusions

45. As Mr Hoar submitted, this application has three possible outcomes. First, I can find that the applicant is correct and that the age which is mother told him before he left Pakistan is accurate, that is (as at June 2022) 16 years and 1 month (Date of birth: 10 May 2006). Secondly, I can agree with the age assessment and find that the applicant is now 19 years and 1 month old (date of birth: 10 May 2003). Thirdly, I can find that the applicant is such other age as my assessment of all the evidence indicates.

46. In his oral submissions, Mr Fripp questioned why the Tribunal should 'move away from the date of birth given by [the applicant's] mother given that it is consistent with the physical evidence'. In my opinion, it should do so because the date given by the applicant's mother, or at least as recalled by him, is unreliable. I have found that the applicant is prepared to lie to authorities both abroad and (despite his claim to the contrary) here in the United Kingdom but I find that he is not certain why he might need to lie, about what he needs to lie or the purpose for doing so; in other words, I do not find him to be devious or calculating. Rather, I agree with Mr Hoar that the applicant's evidence was often simply chaotic. I find, in particular, that he has no mature understanding of the significance of dates or ages. Indeed, I find it is likely that the applicant does not know his actual date of birth but has been told to say that is 10 May 2006 by someone (possibly his mother). To answer Mr Fripp's question, I find that there is good reason to move away from 10 May 2006 as the applicant's date of birth.

47. Having regard to the caveats concerning the weight to be attached to physical characteristics in AM and elsewhere in the jurisprudence, I find the fact that the applicant had developed at least one wisdom tooth by the time he first visited a dentist in the United Kingdom in October 2020 indicates that he is older than he claims to be. I find that it is unlikely that he would have developed a wisdom tooth at the age of 14 years and 5 months when the earliest age is likely to be 17 Years - see R(M) v Waltham Forest LBC. I note that Mr Fripp did not take issue with the dental evidence cited in R(M) v Waltham Forest LBC. I do not find that the dental report clearly shows that he had more than one wisdom tooth at the time of the examination.

48. I find, for the reasons I give above, that the applicant only began to shave from October 2020 and that he had not done so before he entered the United Kingdom. I agree with Mr Fripp that the evidence regarding shaving does not carry significant weight. It does, however, suggest a date of birth which is earlier than that proposed by the applicant; the age at which boys develop facial hair varies considerably but 14 years is, in my opinion, probably earlier than average.

49. I was impressed by Fay Nicholson as a witness. I found that she was careful to try to give truthful evidence even when she acknowledged that she could not remember exactly how the applicant may have appeared at some date nearly 2 years ago. Her evidence deserves weight not only because it was given in good faith and without any obvious desire to assist the applicant (who sat next to her throughout her oral evidence) but also because she is the adult available to give evidence to the Tribunal who has had the longest and closest association with the applicant. She is also a very experienced foster carer who has long experience of interacting with teenage boys. When asked by social workers in September 2020 how old she considered the applicant to be, she gave a date of birth of May 2005 (1 year earlier than the applicant claims). In November 2011, she amended the date to after September 2005. Fay Nicholson also discussed the applicant's age with Ms Awodeyi, the assigned social worker in October 2020. I find that Ms Awodeyi is likely to have offered her opinion without any obvious bias. By the respondent's account, Ms Awodeyi gave a range for the date of birth of October 2002-October 2004 (17 years 7 months - 19 years 7 months as at June 2022) but Fay Nicholson recalls Ms Awodeyi indicating a range of October 2000- October 2002 (15 years 7 months - 17 years 7 months as at June 2022).

50. Although I am satisfied that Fay Nicholson has not sought to change her evidence to bring her estimated date of birth closer to that of the applicant and although it could be said that her later opinion, formed after spending more time with the applicant, is likely to be more accurate, equally the first impression of a very experienced foster carer, formed before the applicant settled into her home, began to learn English and consequently presented as a more mature individual may be the more reliable. Fay Nicholson's first estimated date of birth (May 2005) is also broadly consistent with both reported opinions of Ms Awodeyi.

51. I give appropriate respect to the date of birth found by the respondent's social workers who completed the age assessment. They conducted several detailed interviews with the applicant and brought their own experience to the assessment. However, having regard to all the evidence, I find that the estimated date of birth of 10 May 2003 is not accurate. I refer to my findings above concerning the applicant's lack of intellectual maturity. My findings as regards the applicant's physical maturity may support the respondent's estimate but equally a later date of birth. I have also (with appropriate caution) factored in my own impressions of the applicant over the two days of the final hearing; I am not persuaded that the applicant is currently over 19 years old.

52. Having all these matters in mind together with my findings and observations as regards the applicant's evidence and his physical characteristics which I have set out above, I find and declare that the applicant's date of birth is 1 November 2004. I consider that date is consistent with all the evidence including the views of Fay Nicholson and Ms Awodeyi and with my findings regarding the applicant's physical characteristics and level of intellectual and emotional maturity.

53. I direct that all parties shall, no later than 14 days after this judgment is handed down, file and serve written submissions as regards costs. There shall, in any event, be a detailed assessment of the applicant's publicly funded costs.

Decision

The Upper Tribunal declares that the applicant was born on 1 November 2004.

Signed Date 1 July 2022

Upper Tribunal Judge Lane

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant is granted anonymity

No-one shall publish or reveal any information, including the name and address of the appellant, likely to lead members of the public to identify the applicant. Failure to comply with this order could amount to a contempt of court.

	In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review	JR/1540/2021

In the matter of an application for Judicial Review

	The Queen on the application of
	ZU
		Applicant
	versus

	KENT COUNTY COUNCIL
		Respondent
SOUTH GLOUCESTERSHIRE COUNCIL Interested party
ORDER

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	United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments
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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments