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Burden of proof on claimants in age assessment challenges

26 January 2011

It is for immigrants who take councils to judicial review over age assessments to prove that they are the age claimed, the High Court has ruled.

The case concerned an Afghan asylum seeker who claimed to be 15 when he arrived in the UK by hanging on to the underneath of a lorry.

Giving judgment in R (on the application of CJ) v Cardiff City Council [2011] EWHC 23 (Admin), Mr Justice Ouseley said the leading Supreme Court judgment on age assessment was silent as to the burden of proof.

He said the question in this case was whether CJ was 17 or older than 20, making him over 18 when he arrived two years ago.

Following his arrival, CJ was dispersed to Cardiff, where the council assessed his age as 20. The court heard that, following the receipt of further documents which tallied with the date on his residence card, the council treated the asylum seeker as a child and put him in foster care.

CJ’s behaviour deteriorated in the foster home and he was sectioned under the Mental Health Act. Both his foster carers and hospital staff believed he was over 20.

Ouseley J said the Supreme Court’s decision in R (on the application of A) v London Borough of Croydon [2009] UKSC 8 had made it clear that when age assessments were challenged by judicial review, courts were not to review councils’ decisions for lawfulness but determine the question of age as a matter of fact.

Mr Justice Ouseley said he had intended to resolve the case without resorting to the burden of proof, but it had been quite a close decision mainly because of the speed with which CJ had obtained three documents from Iran supporting his case.

“And I am aware of the fragility of the basis for the age assessment decisions,” he said. “In reality, if I ask ‘has the council shown the claimant to be an adult aged over 18 now and on arrival?’, I would answer nearly but not quite.

“If I ask ‘has the claimant shown himself to be under 21 now?’, the answer is no and he is some way short of doing so.”

Ouseley J went on: “I therefore have had to decide who bears the burden of proof. In my view it is for the claimant to show that he is or was under 18 at the time that he asserts a duty was owed to him as a child.

“First, in judicial review proceedings it is for the claimant to show that the public authority has erred in its duties. Second, but obviously related, it is the claimant who is asserting that the duty is owed; the authority is not asserting a power to do something.”

Mr Justice Ouseley concluded that CJ was not under 18 when arrived in the UK, but over 20. He dismissed the claim.

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