R (on the application of ES) v Hounslow Borough
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Latter |
| Judgment Date | 24 November 2011 |
| Neutral Citation | [2012] UKUT 138 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 24 November 2011 |
[2012] UKUT 138 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
UPPER TRIBUNAL JUDGE Latter
UPPER TRIBUNAL JUDGE Coker
In the Matter of an Application for Judicial Review
For the Claimant: Ms Shu Shin Luh, instructed by Pierce Glynn, Solicitors
For the Defendant: Mr J Swirsky, instructed by London Borough of Hounslow
R (on the application of ES) v London Borough of Hounslow (AAJR)
This is an application for judicial review by the claimant, a citizen of Afghanistan, of decisions by the defendant, the London Borough of Hounslow, assessing his date of birth as 1 June 1993 as opposed to his claim that it is 1 June 1996. Permission was granted by the High Court to challenge the defendant's decisions on 11 April 2011 and the application has been transferred to the Upper Tribunal. In the light of the judgment of the Supreme Court in R (A) v London Borough of Croydon [2009] UKSC 8, the task of the Tribunal is to assess the claimant's age.
We heard oral evidence from the claimant and Balbona Mejzini from the Refugee Council and on behalf of the defendant from Jacinta Kayne, Hannington Nuwamanya and Cyril Leroy, all social workers in its employment, Gwyneth Austin, a tutor at West Thames College and Celina Dennis, an education support mentor at the Institute of Education Centre (IEC) at Brentwood Football Club.
We had written evidence from Elaine Fehrman, an independent social worker instructed on behalf of the claimant. There was a witness statement from Lizette Villaverde on behalf of the defendant. She was unable to attend the hearing as she was abroad. The defendant instructed Dr Philip Marsden to carry out a dental age assessment. His report was considered by Professor Graham Roberts on behalf of the claimant. A joint report was submitted dated 4 November 2011.
The documentary evidence is in the trial bundle which is divided into nine sections indexed and paginated 1.1 – 9.19. A notice of hearsay evidence dated 18 November 2011 in respect of the evidence of Lizette Villaverde was produced by the defendant. On the day of the hearing the claimant sought to adduce a response by Professor Roberts to a series of questions submitted by his solicitor, the defendant subsequently producing a response from Dr Marsden to that further evidence on 23 November 2011. Both counsel produced full and helpful skeleton arguments and following the hearing Ms Luh produced a further supplementary note on the burden of proof dated 21 December 2011 drawing our attention to the judgment of the Court of Appeal in R (C)J v Cardiff CC [2011] EWCA Civ 1590, Mr Swirsky filing a response on 13 January 2012. We were also provided with a bundle of authorities.
The claimant is a citizen of Afghanistan who arrived in the UK on 2 September 2009 making a clandestine entry by lorry. He was arrested and then claimed asylum. In his screening interview on 3 September 2009 when asked his age, he said that he was 13 years and 6 months (7.3). He explained that he had left Afghanistan two and a half months previously for Iran where he stayed for a week before going to Turkey. He was in Istanbul for six days and then travelled to Greece by lorry and ferry where he stayed for about 45 days. Whilst he was there he was arrested and fingerprinted. He then travelled to France by train where he stayed for about a month, leaving on 2 September 2009 by lorry for the UK.
He submitted a Statement of Evidence Form dated 12 October 2009 again claiming to be 13 years 6 months old. In answer to the question (A21) on which date he left his home country, he replied that he was not sure, may be it was about three and a half months ago. He supported his claim by a written statement also dated 12 October 2009 repeating his claim that he was 13 years 6 months old and saying that when he had left Afghanistan, his mother had told him that this was his age but he did not know his calendar date of birth (7–44A).
The claimant's application for asylum was refused. He based his claim on a fear of the Taliban. He said that his father had been working for the Taliban but had disappeared about four years before he left Afghanistan. He and his family moved in to live with his maternal uncle and about four years later, his uncle went missing. He claimed that about three months after his uncle's disappearance the Taliban came to his uncle's house and bombed the yard. An aunt and cousin were killed. Later they returned asking him to become a suicide bomber saying they would come back the following week to take both him and his brother.
Arrangements were made through the village leader “the Malik” to arrange the sale of their house and for him to leave Afghanistan. The Secretary of State did not accept that the claimant had given an accurate account of his reasons for leaving Afghanistan or of his fears on return and his application was refused. His age was also disputed. The defendant carried out an age assessment in September 2009. It was accepted that the claimant was under 18 but his age was assessed as 16 and a few months, his date of birth being treated as 1 June 1993. That finding was disputed and the claimant's then representatives instructed Elaine Fehrman, an independent social worker, to undertake a further assessment and in her report of 26 March 2010 she set out her view that the defendant's social workers had not given adequate reasons for their decision and concluded that the claimant's age was as he claimed.
The claimant appealed against the decision to refuse his asylum claim and his appeal was heard by IJ Williams on 29 March 2010. In his determination issued on 7 April 2010 the judge said that he preferred the evidence of Ms Fehrman to the evidence of the local authority. He commented that, although it would be impossible to come to any definite conclusion that the claimant at the date of hearing was only 13, he was satisfied, at least on the lower standard of proof, that he was under the age of 16 and accepted for the purposes of his determination that the claimant was the age which he had always asserted consistently and vehemently. He concluded that he had been told the truth by the claimant and that he would be at risk in his home area. As internal relocation was not an option, the appeal was allowed on asylum grounds.
The claimant was duly granted refugee status, and the Secretary of State issued a status document giving a date of birth of 1 June 1996. However, the defendant carried out a further age assessment in November 2010 and maintained its view that he was in fact three years older than he claimed and was born in June 1993 not 1996.
The claimant gave his evidence through a Pashtu interpreter. He adopted his witness statement at 2.1–20 dated 16 August 2011. He said that he was 13 years and 3 months old when he left Afghanistan in 2009. The journey took about 2 1/2 or 3 months and he arrived in the UK in early September 2009. The birth date of 1 June was given to him by the Home Office after his first interview. He had told them that he was 13 years and 6 months in September 2009. He believed that it was possible that he might actually have been born in March. Calendars were not used in Afghanistan in the way they were in the UK but in Afghanistan the New Year, “Nawroz”, usually fell in March. It was a big event and in his village and home he had the nickname of Nawroz. He had never asked his mother about this but he thought it might be because he was born on or around New Year's Day.
He then gave details about his family. He has one older brother who is severely disabled and after him he is the oldest in the family. He has two younger brothers and sisters. His father disappeared when he was about 8 1/2 or 9 years old and he then stopped attending school. He had started attending when he was a little older than 5 but younger than 6. He had been very eager to start school early. When he first went he was not accepted because he was told that he was too young although other boys in the village were accepted. This was how he knew they were a little older than him. The head teacher had spoken to his mother about attending school and he remembered her being asked how old he was but he did not know what she had said in reply. It was suggested that he should wait a year to start but he was keen to attend school, often turning up with the other boys and eventually the head teacher accepted and registered him in the school. He went to school for three full years and was in his fourth year when he stopped attending.
He confirmed that he was now living with his foster carer in Brentford and he got on well with her. He attended the IEC Centre three days a week, describing it as a mixed school for children who had been kicked out of normal schools. He attended maths and English lessons. He was not happy there as he wanted to attend a normal school like other children of his age. He also attended a place in Hounslow called “The Spot” for two hours each day where he was taught English, IT and maths. He remembered seeing one of the teachers although he did not know that her name was Ms Dennis. There was an occasion when a boy asked him his age and he said that it was no concern of his. Normally he would not indicate his age but he said it was 15 when the other boy mentioned 17. He did not know whether he was talking about him or not but he had not said that he was 17. He repeated it was not possible that he would have said that he was 17.
He was asked about the age assessment carried out by the defendant in 2009. He said he was not asked if he wanted to have an adult with him. His social worker, Hannington was there...
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Upper Tribunal (Immigration and asylum chamber), 2012-02-07, [2012] UKUT 138 (IAC) (R (on the application of ES) v London Borough of Hounslow (AAJR))
...{ color: #0000ff } Upper Tribunal (Immigration and Asylum Chamber) R (on the application of ES) v London Borough of Hounslow (AAJR) [2012] UKUT 00138 (IAC) IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW Heard at Field House Determination Promulgated On 22, 23, 24 November 2011 ……………………......