Osbornes succeed in important Upper Tribunal case

13 Aug 2019

Challenges to Age Assessments are fast becoming common and the use of dental reports as evidence in such assessment has become a controversial topic of late. The problem is that it is inherently difficult to determine the age of asylum seekers where their dates of birth are unknown (not recorded at their births). In the UK, age is a matter which needs to determined one way or another, particularly if an asylum seeker claims that he/she is a child and is therefore entitled to accommodation and support from the Local Authority under the Children Act 1989. Local authorities have insisted on relying on dental experts as a basis of determining the age of asylum seekers.

Solicitor, Edward Taylor, acted for AS in his Judicial Review against Kent County Council. AS arrived in the UK on 7th September 2015 seeking asylum from Afghanistan. He claimed to be aged 15. Kent subsequently assessed him with a date of birth of 7th September 1998. Osbornes sought to challenge that decision by Judicial Review proceedings. The High Court transferred the proceedings to the Upper Tribunal (Immigration and Asylum Chamber) for the fact-finding exercise.

Kent sought to instruct a dental expert, to conduct a Dental Age Assessment and prepare a report. Osbornes vehemently resisted Kent’s application, in light of the decision of the Vice-President of the Upper Tribunal in the case of ZM and SK against Croydon, which cast doubt on the reliability of Dental Age Assessments. Nevertheless, permission was granted for Kent to instruct the dental expert.

The Dental Age Assessment considered that AS is “very likely to be over 18 years old with an age of approximately 23”. Kent subsequently resiled from their initial age assessment and filed fresh evidence from new age assessors considering AS to be aged 24.5.

Osbornes, concerned with the reliability of the Dental Age Assessment, instructed Leading Counsel, Ian Wise QC, to represent AS together with Junior Counsel, Tessa Buchanan. Osbornes also instructed a statistician expert, to report on the dental expert’s use of statistics.

A 5-day hearing was listed before two Upper Tribunal Judges; this being considered a case of wider public importance. The question for the Judges was AS’s age, with the two parties asserting ages around 8 years apart. The Upper Tribunal heard evidence from the two experts and then from witnesses.

In relation to the controversial Dental Age Assessment, the Upper Tribunal considered the dental expert to be an unreliable witness. The judgment criticises the dental expert stating “there is a strong tendency to overstate the value of research he has undertaken and his methodology. This extends to overstating the weight of the validation of his work, an exercise, which, as became clear in oral evidence, was far from satisfactory.” Consequently, the Upper Tribunal did not consider that they could rely on the Dental Age Assessment.

In this case, Kent also sought to rely on a booklet of photographs to help determine the age of AS and young asylum seekers generally. They were heavily criticised by the presiding Judges: “There is simply no basis for that assertion that they are “typical” of the individuals at the age stated. There is, in fact, nothing to suggest that they were representative as opposed to skewed, and worryingly, several of the photographs are distorted by being stretched vertically or horizontally. We are, frankly, concerned that such inadequate evidence could have been thought capable of bearing any weight whatsoever.”

The Upper Tribunal ultimately decided, doing the best with the evidence they have, that AS’s date of birth is, on a balance of probabilities, 7th September 1998.

Following this judgment, it is going to be very difficult for Local Authorities to adduce dental expert evidence in Age Assessment cases. It remains to be seen whether Kent will seek to appeal the judgment to the Court of Appeal.

Osbornes specialises in challenging Age Assessments on a regular basis. For further information, please do not hesitate to contact the Housing and Social Welfare Department on 020 7485 8811.

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