Upper Tribunal (Immigration and asylum chamber), 2019-11-22, JR/04027/2019

JurisdictionUK Non-devolved
Date22 November 2019
Published date22 November 2019
Hearing Date14 November 2019
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberJR/04027/2019

JR/4027/2019

Upper Tribunal

Immigration and Asylum Chamber

JR/4027/2019



Field House,

Breams Buildings

London

EC4A 1WR


Heard on: 12 to 14 November 2019



Before



UPPER TRIBUNAL JUDGE KEITH


Between



The Queen (on the application of FS)


Applicant

v


Secretary of State for the Home Department

Respondent


Ms R Moffatt, instructed by Duncan Lewis Solicitors, on behalf of the applicant

Mr A Campbell, instructed by the Solicitor, London Borough of Croydon


APPLICATION FOR JUDICIAL REVIEW

JUDGMENT


‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑


  1. I gave this judgment and reasons orally at the end of the hearing on 14 November 2019. These written reasons are the approved record of those reasons given orally.


The application


  1. The applicant applied on 18 April 2019 for judicial review of the respondent’s decision of 31 January to refuse to re-assess the applicant’s age; and, amongst other things, for a declaration that the applicant’s date of birth is 1 July 2002, rather than his date of birth as assessed by the respondent of 1 July 2000 (the ‘assessed date of birth’). The respondent had made its decision on 2 May 2018 that the applicant had the assessed date of birth, following assessment interviews on 8 and 18 December 2017 and 19 February 2018.


The proceedings


  1. Following the respondent’s May 2018 decision, the applicant’s solicitors wrote to the respondent on 22 January 2019 making further submissions. These included a new age assessment, which they said was compliant with the well-known ‘Merton guidelines,’ conducted by two independent social workers, with the date of assessment being 23 November 2018; and the conclusion for which was that the applicant had the date of birth as he claimed. The further submissions also included witness statements from volunteers who had known the applicant at the Old Hamptonian’s cricket club; workers with the ‘Refugee Cricket Project’ or ‘RCP’, including an adviser with the Refugee Council childrens’ 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.


  1. Despite the further submissions, the respondent replied on 31 January 2019, asserting that the documentation provided did not identify significantly material evidence to warrant a review or reassessment. In particular, the respondent did not accept any independently commissioned age assessment as the respondent had its own qualified age assessors.


  1. There followed a letter before action from the applicant’s solicitors dated 26 February 2019, enclosing the previous the material; reciting the applicant’s claimed background history; and asserting that the respondent had failed to consider the new evidence. Whilst the respondent appeared to have disputed the reliability of the applicant’s Taskera, the applicant had asked for the return of the original in order to authenticate it, which the Secretary of State for the Home Department (‘SSHD’) had refused. On the one hand, the respondent asserted that they were unable to carry out verification of the Taskera; but on the other hand, the respondent did not accept its reliability and placed no weight on it. The applicant had been denied the opportunity to verify it, through no fault of his own.


  1. The applicant further asserted that the respondent failed to consider the additional evidence, noting the report of the two independent social workers and their assessment that his date of birth was as claimed. The applicant’s solicitors also referred to the written testimony of those who had worked with, or volunteered alongside, the applicant and who had testified as to his youthful and relatively immature behaviour, which was consistent with his claimed date of birth.


  1. The respondent replied to the letter before action on 19 March 2019, the gist of which was: to attach only very limited weight to the Taskera, noting that they could not assess its authenticity and in any event, the year of birth was stated in the Taskera as being based only on the applicant’s physical appearance; to assert that the applicant had been given the opportunity to acknowledge that he understood the interpreter and the role of other professionals during the assessment interviews; and that the applicant’s answers and manner of answering questions had led the respondent’s assessors to doubt his credibility. In response to the applicant’s evidence, the fact of his interaction with younger people was still consistent with the assessed date of birth; his ‘moods’, lack of engagement and lack of independence could be explained by cultural challenges; and that some of the supporting witnesses had limited direct involvement with the applicant.


  1. The applicant applied for judicial review in the High Court on 18 April 2019. Her Honour Judge Evans-Gordon gave initial directions on 29 April 2019 and the respondent filed an acknowledgement of service on 14 May 2019. Her Honour Judge Coe QC granted permission to proceed to a full hearing, without the need for a litigation friend, in a decision sent on 23 May 2019, in which she also transferred proceedings to the Upper Tribunal. 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.


The applicant’s account


  1. The applicant is a citizen of Afghanistan, who claims to have fled Afghanistan, on a precise date which he is unable to confirm, but which is in or around May 2017; due to feared adverse interest from Daesh or the Taliban, who sought to recruit him. He has a separate appeal against the SSHD’s refusal of his asylum and human rights claims which is before the First-tier Tribunal (‘FtT’), but the FtT proceedings are stayed, pending the conclusion of these judicial review proceedings. In the context of his protection and human rights claims, he has attended a screening and substantive asylum interview.

  1. The claimed adverse interest began around two years prior to the applicant leaving Afghanistan, when his paternal uncle, whom I will refer to as ‘MS’, also fled Afghanistan’s because he too feared adverse interest, as a result of having acted as an interpreter for US forces and contractors for many years. MS is now living in the United States, claiming to have been granted asylum and having left Afghanistan in May 2015. Around a year later in May 2016, having been approached, on the applicant’s account, either via letters or through face-to-face contact, or both means, to join the Taliban and having refused, the applicant’s father then disappeared. The applicant feared that his father had been abducted by Daesh/the Taliban.

  1. The approximate nature of the above dates is illustrated by the fact that the Takera, which the applicant says that he obtained when he was present with his father, from local government offices, was produced on 30 May 2016, and in his witness statements he said that his father disappeared around either a year after his uncle left Afghanistan (which would date his disappearance to around May 2016); or in oral evidence to me, a month or two after he got the Taskera, which would date his father’s disappearance to anywhere between June to August 2016.


  1. The applicant claims that after his father’s disappearance, he was then approached by Daesh/the Taliban on his school journeys. Fearing that he too would be abducted, his mother and maternal uncle arranged for his passage from Afghanistan. He travelled clandestinely through a number of third countries; was encountered and fingerprinted in Slovenia on 2 August 2017, as recorded in Eurodac results; and claims to have entered the United Kingdom clandestinely in early November 2017; and attended the SSHD’s offices in Croydon on 6 November 2017, presenting his Taskera, which was reviewed by the SSHD who informed him that based on what was recorded, he then claimed to be 15 years’ and four months’ old.


  1. The applicant also relies on a subsequent medical report of Dr Dosani which diagnoses him as suffering from a post-traumatic stress disorder (‘PTSD’) and a major depressive episode with anxiety symptoms, which is said to corroborate his account and also to explain any possible inconsistencies in the recollection of events and dates.


  1. In his judicial review application, the applicant asserts that he could be expected to be aware of his age (contrary to the respondent’s assertions), having attended school for seven years until he left Afghanistan at the age of 14; he was literate and it was plausible that he had been made aware of his age by his parents. There was no inheritance plausibility in the SSHD’s interpreter attributing a westernised day and month to a translation of an Afghan date which had been given as a year in the Taskera, noting that birthdays are not celebrated in Afghanistan.


  1. Whilst there might be deficiencies in the regional and...

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