Upper Tribunal finds asylum seeker was a child when he arrived in the UK

Rahul Kanani

Introduction

On 4 September 2026, following a fact-finding hearing to determine MA’s age and date of birth, Upper Tribunal Judge Mahmood handed down judgment in favour of our client (“MA”) in his challenge against Hampshire County Council (“Hampshire”).

The Upper Tribunal accepted that MA’s date of birth is 16 October 2007, confirming that he was a child when he arrived in the United Kingdom and was under the age of 18 at the time of Hampshire’s second age assessment. As a consequence of the judgment, MA is recognised as a former relevant child and is entitled to support under the Children Act 1989.

 

Legal Challenge

The case concerned a Judicial Review challenge against Hampshire. We challenged the factual correctness and procedural fairness of Hampshire’s age assessment decision dated 7 July 2025, which incorrectly assessed MA’s date of birth as 16 October 2000. This assessment treated MA as having been 22 years old when he entered the United Kingdom and 24 at the time of the age assessment decision.

 

Background

• 5 August 2023: MA arrived in the United Kingdom, unaccompanied and seeking asylum from Afghanistan. He was ascribed a date of birth of 5 September 2000, following a visual assessment by two Home Office members of staff. As a result, MA was not referred to a local authority’s Children’s Service for assessment and support. Instead, he was placed in adult asylum hotel accommodation.
• August 2023: MA came to the attention of Hampshire and, following a brief interview, was accommodated by Hampshire Children’s Services as a Looked After Child pending a full Merton-compliant age assessment to determine his correct age.
• 26 July 2024: Hampshire’s assessing social workers completed their age assessment (the “first age assessment”) and concluded that MA was an adult. Hampshire decided that MA was not eligible for Children’s Services, and he was discharged from their care.
• 20 August 2024: We were formally instructed by MA to assist in establishing his true date of birth and in obtaining appropriate care, support and accommodation in accordance with age.
• August – October 2024: Between this period, we gathered supporting evidence and instructed two experts to report on the authenticity of MA’s Taskira (Afghan identity document) and Birth Registration Certificate. During this period, we exchanged significant pre-action correspondence, including representations against the adverse first age assessment decision. Following our submissions, on 23 October 2024, Hampshire agreed to withdraw the first age assessment and undertake a fresh age assessment. In the meantime, MA was to be accommodated and supported in line with his claimed age pending the outcome of the fresh assessment.
• 7 July 2025: MA was discharged again following a second age assessment, in which the assessing social workers assessed MA to be 24 years old.
• 3 September 2025: Following Hampshire’s failure to provide a substantive response to the evidence supporting MA’s age and our representations challenging the factual correctness and procedural lawfulness of the second age assessment, we issued Judicial Review proceedings against Hampshire’s decision.
• 18 September 2025: Permission to apply for Judicial Review was granted by Hugh Southey KC, sitting as Deputy Judge of the High Court. MA’s application for interim relief was also granted, which meant that Hampshire was ordered to treat MA as a child and provide him with accommodation and support under sections 17 and 20 of the Children Act 1989 until the claim was determined or until further order. In line with usual practice, the case was transferred to the Upper Tribunal.
• 2 to 5 June 2026: The fact-finding hearing took place over four days.

 

Key Evidence Heard in the Upper Tribunal

MA (Applicant)

1. MA’s own evidence

The Upper Tribunal heard evidence from MA on the first day of the hearing. He was cross-examined by Hampshire’s instructed counsel and also responded to questions from Judge Mahmood. Judge Mahmood found MA’s evidence to be ‘consistent, logical and coherent’.

2. Three professional witnesses

The Upper Tribunal heard evidence from a support worker, a Youth Welfare Officer at a charity called Young Roots, and a manager of one of the young people’s homes where MA had been residing while in Hampshire’s care.

The Judge considered the evidence of the three professional witnesses to be ‘compelling’. It was further noted that their observations had been made ‘in every day situations’, and that each had ‘extensive experience of working with children and young people’.

The Judge concluded that the ‘lengthy observations of the Applicant by each of the witnesses is strong and independent evidence of the Applicant’s age’.

3. Expert evidence

MA instructed two experts to verify the authenticity of the scanned copies of the Taskira and Birth Registration Certificate. Both experts verified them as genuine, using different but complementary methodologies. While there were concerns in relation to the evidence of one expert for reasons

unrelated to MA’s case, the Judge considered that ‘the evidence of Dr Giustozzi is reliable evidence that the Taskira and Birth Registration Certificate (both issued to MA) are genuine documents’.

4. Other Evidence

MA also provided two written witness statements from his mother and uncle, and disclosed his social care, social media and medical records, which the Judge considered in the round when reaching his decision.

 

Hampshire County Council (Respondent)

1. Age Assessment undertaken by Hampshire

Hampshire significantly relied on evidence obtained during the second age assessment, undertaken by a Social Teamwork Manager and a Social Worker, in support of its assessment that MA was 24 years old.

However, following a detailed analysis and examination of the age assessment report, Judge Mahmood found that it had ‘several deficiencies’. In particular, the Judge identified:

• the assessors’ overreliance on physical appearance as an indicator of age;
• their failure to take into account significant evidence that had been submitted, which the Judge considered to be a ‘serious omission’; and
• their reliance on the first age assessment- which the judge considered had influenced their second age assessment, despite the fact that the first age assessment decision had been withdrawn by Hampshire.

Judge Mahmood concluded that ‘these errors in the age assessment were of such a fundamental nature that it affects the veracity of the age assessment as a whole’. As a result, he ‘derived no real benefit from the age assessment in terms of assessing the Applicant’s age’.

2. Evidence of MA’s social worker

In support of Hampshire’s assessment, the Upper Tribunal also heard evidence from MA’s social worker, who had been MA’s social worker for a period of time. However, Judge Mahmood concluded that ‘her evidence was poor and one-sided’, and that she ‘had no real experience in dealing with age assessments’.

 

Conclusion

Having considered the evidence as a whole, Judge Mahmood concluded:

‘Therefore, considering the extensive evidence as a whole, I conclude that the Applicant’s age is as he claims to be. Namely, his date of birth is 16 October 2007. Therefore, at the time of the assessment of his age by the Respondent, the Applicant was under the age of 18’.

In reaching his decision, Judge Mahmood placed significant weight on the extensive observations of three professional witnesses who provided evidence in support of MA’s age, the ‘evidence of the Applicant himself (which he) found to be consistent, logical and coherent’ and the evidence of Dr Giustozzi concerning the verification of MA’s identity documents.

 

Key Takeaways from the Case

1. A fresh assessment must be fresh

‘Firstly, the Respondent had conducted an earlier age assessment and withdrew it. Yet the second age assessors still read the first age assessment. This was bound to have influenced the second age assessment’.

In this case, Hampshire agreed to undertake a fresh age assessment after withdrawing its first age assessment decision. The expectation was that the fresh age assessment would be completed by social workers who were not involved in the original decision and who had no previous knowledge of it. However, as also recognised by Judge Mahmood, it was evident from reading through the second age assessment report that the assessing social workers had considered the adverse findings in the first age assessment report before undertaking the second age assessment.

The judgment serves as a reminder of the important principles set out in R (GE) v Secretary of State and Bedford Borough Council [2015] EWHC 1406: ‘I am troubled too that the second age assessors were made aware that previous assessments of GE’s age had found her to be older than 18 […] I see no good reason for providing this information to the assessors: the risks of introducing unconscious bias, and compromising the independence of the assessors’ own conclusions, seem to me to be obvious’.

Regardless of any safeguarding measures that may have been put in place to mitigate unconscious bias, the fact that the assessing social workers had read the previous age assessment decision meant that they had, or had formed, a pre-existing view of MA’s age when approaching the re-assessment. This would inevitably risk influencing the weight afforded to both the evidence previously submitted and any further evidence provided by MA, and ultimately the outcome of the re-assessment.

2. Physical appearance is an unreliable guide to age

‘I am also troubled by the reasoning of the age assessors whereby despite knowing that physical appearance is an unreliable indicator of age, they nonetheless relied heavily on physical appearance anyway. They also relied on photographs which included a very small Home Office black and white photograph. That was not a good indicator of age in any event’.

It is well-established that relying on a young person’s physical appearance as an indicator of chronological age is an unreliable process, as has repeatedly been recognised in contested fact-finding hearings before the Upper Tribunal. It is evident in Merton case-law that physical appearance is ‘notoriously unreliable’ in the assessment of chronological age.

Osbornes Law is seeing a growing trend of local authorities conducting adverse short-form assessments of young asylum-seekers and placing undue emphasis on physical characteristics to justify not undertaking a holistic or full age assessment.

This judgment helpfully reiterates that physical appearance is an unreliable indicator of age, and assessing social workers should focus on undertaking a holistic assessment, considering all relevant evidence in order to reach an informed decision about a young person’s age.

3. Importance of Professional Workers’ Opinions

As recognised in ADCS guidance (page 14), importance is placed on the views of key workers, social care workers, advocates, teachers and college tutors. It is noted that ‘their observations of children and young people in different settings and interactions with peers and other adults can make a useful contribution’.

As per R (AM) v Solihull MBC [2012] UKUT 00118 [at para 20], ‘any person such as a teacher or even a family member, who can point to consistent attitudes, and a number of supporting instances over a considerable period of time, is likely to carry weight that observations made in the artificial surroundings of an interview cannot carry’.

4. Importance of Proper Recording of Meetings and Providing an Interpreter where Necessary

‘She confirmed that in her discussions with the Applicant there was no interpreter’.

‘The witness agreed that references attributed to the Applicant such as not wanting to stay with ‘lower social class’ were not actually said by the Applicant at all. These were words attributed to him and were not his own words. Similarly asked about her recording of notes that ‘you made my mum sad’ was said now by the witness to be a mis-recording and not something that the Applicant had said’.

In this case, significant weight and importance was placed on statements that MA did not make, which were then relied upon adversely against him. This judgment should serve as a reminder to social workers of the importance of maintaining accurate contemporaneous notes of meetings and ensuring that, where a young person is not proficient in the language being used, an appropriate interpreter is arranged who speaks the young person’s language and, where necessary, the relevant dialect.

 

Legal team

MA was represented by Rahul Kanani and Alex McMahon of Osbornes Law, with Agata Patyna and Antonia Benfield of Doughty Street Chambers instructed as Counsel at different stages of the proceedings.

We would like to extend our sincere thanks to Agata Patyna and Antonia Benfield for their outstanding advocacy, expertise and assistance throughout these proceedings, and to the professional witnesses and experts for their contributions in this case.

 

How we can help

Our Housing and Social Care team acts for young people whose age has been disputed. Read more about age assessments for asylum seekers. Contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811