“It is the professional opinion of the [assessors], that [the claimant] is aged over 18 years old; therefore, he is legally an adult. Although it would be incredibly difficult to determine the exact age that [he] is, based upon the factors identified within this assessment, including his presentation, demeanour, and language skills, it would be estimated that [he] is likely to be around the age of 23 years old…”
“[The claimant] reports that he has no identification documents with him in the UK, and he does not believe that he has a Tazkira. The Tazkira is the Afghanistan national identification document which all Afghan citizens are eligible for. Although it is recognised that the Tazkira is not an automatically issued document, it would be expected that, given [the claimant’s] father’s employment with the Afghanistan government, that he would have recognised the importance of acquiring such a document, particularly with the threats posed towards the family from the Taliban.”
“Based on physical appearance age assessed as Ten (10) years old in 1396 (2017)”
“A photograph of a young child has been affixed on the top left corner of this Taskira. This photo was compared by me and my colleague Palwasha Latif against a recent digital photo received from Obsbornes Law and also matches the facial features of the person we both interviewed on04 March 2024 . Photo change is one method of Taskira forgery. This scan does not show signs of photo change.”
“This Taskira contains the correct age assessment. When dates of birth are unknown which is the case for many Afghan children, government of Afghanistan conducts an age assessment procedure and then records its findings in a cell assigned for age assessment. The age assessment section reads “Age assessed as TEN (10) years old”
“5. Response to the proposed claim The defendant’s refusal to re-assess the Claimant’s age (a) The ADCS Age Assessment Guidance states that where the authority believe that “a significantly different conclusion might be reached and that the child or young person may be notably older or younger than initially assessed, then a new assessment should be undertaken” (see page 31 [of the Guidance]). (b) In this case, the new information comprises: (i) expert report that the claimant’s tazkera is genuine: (ii) photograph; and (iii) scanned copy of tazkera (c) The defendant has considered the new information and has concluded that it does not believe that it might reach a significantly different conclusion as to his age and that the claimant might be notably younger than 23 for the following reasons. (d) Obtaining a tazkera (an Afghan identity document issued by the Population Registration Department) requires, amongst other things, the identity of the applicant to be verified. Where (as in the claimant’s case), the applicant does not have a birth certificate, verification of identity requires the presentation of a tazkera of a male family member on the father’s side and two testimonies are required, for example from a civil servant, recognised local leaders or religious dignitaries. It does not follow from the fact that the claimant’s tazkera is a genuine document that the information which it conveys is genuine, particularly where its issue is based on oral testimony, there is no way of checking whether the correct procedure for issue was followed or the quality of the testimony relied on, the claimant (sic) has no knowledge of the circumstances surrounding its issue and was not present at its issue and, according to the Transparency International Corruption index, Afghanistan ranks the 150th (out of 180) most corrupt country in the world. (e) The defendant has concluded a Merton-compliant age assessment. It has concluded that this meets with the requirements set out in R (on the application of BM v Hackney Borough Council[2016] EWHC 3338 (admin) and there is no basis on which to re-assess due to deficiency within the age assessment process. (f) In these circumstances, the defendant’s decision not to conduct a new assessment is not irrational.”
“… (ii) he had not provided credible evidence to support his claimed age, basing this on one discussion with his mother: (iii) the claimant was asked whether he had ever had a tazkera and responded that he had ‘never tried to obtain this as it is not needed’. At ten years of age (assumed age) it is reasonable to expect that a child would remember having a photograph taken for his tazkera document. The claimant told Dr Zadeh…that he could not remember when the photograph was taken. The claimant did not share this information with the age assessors.”
“Taskira departments have a professional age assessor. The age assessor conducts age assessment for tens of thousands of citizens who apply for Taskira documents. The phrase “Based on physical appearance age assessed as” means the age assessor identifies the age based on one’s physical appearance which includes height, stature, facial marks, hair, eyebrows, face, eyes, wrinkles and anything else that is visible on one’s face and body. Age assessment carried out in Afghanistan is comprehensive and is based on scientific observations for one’s growth and maturity which is the most important indicator of assessing one’s age. The methods and approaches to age assessment are very different in Afghanistan compared with the UK. The MERTON case- law is very useful judicial guidance. However, in the absence of cultural and historical knowledge of Afghanistan, it (sic) government and legal system, often Merton case-law leads to social workers interpreting the guidelines in ways which encourage them to compare an Afghan child and adult with a British child and adult. This often leads to erroneous conclusions when using the Merton guidelines.”
“The age assessors talk to the parents/guardians of a child and check many things before they return their opinion on age. There are no ulterior motives that a child in 2017 receives a Taskira which contains untrue information. The age being older or younger does not make a difference in any services the government of Afghanistan offers to her citizens. There is no benefit for the age assessor to fail to make all the checks and verifications. In Britain, most financial help depends on what information is provided. There is different criterion to receive different benefits. This incites certain people to provide untrue information to receive these financial gains. None of these exist in Afghanistan. The government does not pay citizens benefits, subsidies, bonuses, wages pensions. When there are no reasons as to why one could provide lies and untrue testimony in Afghanistan, at least the distrust which exists in the UK about cheating a system to gain financial benefits does not exist in Afghanistan.”
“(d) Dr Zadeh advises that the Afghani age assessor determines age based on physical characteristics and the process is comprehensive and based on scientific observations of growth, although he does not go on to explain what these observations area. This is not disputed but it remains the case that the claimant told Dr Zadeh that he was not present for the taskera interview. Thus, it is difficult to see how the official could have carried out a comprehensive and reliable age assessment at that time. The evidence available was the witness testimony and the photograph. There would have been no way for the official to independently verify the claimant’s identity from the photograph or determine when the photograph was taken, or indeed, whether it in fact was of the claimant. Therefore, an assessment of age in the absence of the claimant, based solely on that material may be unreliable. This is in contrast with the defendant’s age assessment where the independent social workers spent several hours over several days in face-to-face meetings with the claimant. The age assessors were in a much better position to make a reliable determination of the claimant’s age.”
“(e) Dr Zadeh’s opinion about testimony is noted but it remains the case that we do not know in this case who provided the testimony and whether it was reliable. The claimant provided conflicting information about his age which was challenged in the assessment. He is stated to be a student on the taskera document but reported in the age assessment that he had never attended school. He also told Dr Zadeh that he had been vaccinated. Dr Zadeh’s advice was the taskera would be needed to authenticate identity by charities such as the Red Cross. The claimant stated that he was not aware of the taskera.”
“Dr Zadeh’s advice that Afghanistan has very stringent procedures to verify age does not appear to have been followed in this case. Dr Zadeh also comments about the cultural expectations in Afghanistan where it is normal for children aged 7/8/9 years of age to be working to support the family. The claimant was asked about this in detail in the age assessment but was unable to provide a detailed account of his role within the family as a child. The assessors clearly attempted to elicit as much information from the claimant as possible about his role in the family and the differing cultural expectations. The assessors fully considered the differing cultural expectations.”
“It seems to me that once the court is invited to make a decision upon jurisdictional fact it can do no more than apply the balance of probability to the issue without resorting to the concept of discharge of a burden of proof.”
“In my view, a distinction needs to be made between a legal burden of proof, on the one hand, and the sympathetic assessment of evidence on the other. I accept that in evaluating the evidence it may well be inappropriate to expect from the claimant conclusive evidence of age in circumstances in which he has arrived unattended and without original identity documents. The nature of the evaluation of evidence will depend upon the particular facts of the case.”
“I do not find it necessary to decide this issue. However, it is plain that the ADCS Guidance is relevant to any consideration of whether the Defendant had cogent reasons for departing from the Statutory Guidance, both because of the expertise of its authors and because of the involvement in its production of the Defendant's own Director of Children's Services.”
“Age assessment is a difficult process for children and young people and for social workers undertaking the assessment it should only be undertaken when there is significant reason to do so. However, there will be occasions when a further assessment is required. Other than on those occasions when reliable and authoritative information is available, an assessment will not allow the assessing social workers to know the age of a child or young person and will only allow them to come to a balanced and reasonable conclusion based on the information to hand and on the benefit of the doubt. Other information may come to light at a later stage, for example, in the form of documentation or as professionals get to know the child or young person over time, which leads them to think that the assessed age is wrong.”
“Where you believe that a significantly different conclusion might be reached and that the child or young person may be notably older or younger than initially assessed, then a new assessment should be undertaken. [My underlining] In most circumstances you will need to talk with the young person about this new information. There may be occasions when a re-assessment does not have to involve further questioning; for example, where new documentation has been provided which supports the child or young person’s claim and it can be relied upon, a decision on age can be made on that basis. Any new decision and the reasons for it must be clearly communicated with the child or young person, and if they are to remain in your service, then thought must be given to rebuilding trust and confidence. The Home Office must be advised of any new decision, and the child or young person will need to be issued with new immigration documents which reflect their assessed age.”
“In summary, according to the ADCS Guidance in relation to when it is appropriate to conduct a re-assessment, the Defendant had to consider not simply whether it might have a bearing on the assessment but whether “a significantly different conclusion might be reached”
“56. Process rationality includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones but is not limited to that. In addition, the process of reasoning should contain no logical error or critical gap. This is the type of irrationality Sedley J was describing when he spoke of a decision that "does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic": R v Parliamentary Commissioner for Administration ex p. Balchin[1998] 1 PLR 1 , [13]. In similar vein, Saini J said that the court should ask, "does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?": R (Wells) v Parole Board[2019] EWHC 2710 Admin at [33]. 57. Outcome rationality, on the other hand, is concerned with whether – even where the process of reasoning leading to the challenged decision is not materially flawed – the outcome is "so unreasonable that no reasonable authority could ever have come to it" (Associated Wednesbury Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223 , 233-4) or, in simpler and less question-begging terms, outside the "range of reasonable decisions open to a decision-maker" (Boddington v British Transport Police[1999] 2 AC 143 , 175).”
“The standard of review for rationality: general 75. Three relevant propositions can be drawn from the authorities about how to assess the rationality of decisions of this kind in respect of a person with a plausible claim to engage the UK Government's responsibility. 76. First, the court's approach to assessing the rationality of a decision varies depending on the importance of the interests affected by it or, to put the point another way, the gravity of its potential consequences. In this connection, it is not necessary to identify a "right" impacted by the challenged decision. It is true that, in Bugdaycay itself, Lord Bridge made reference at 531 to the "right to life", but what made a "more rigorous examination" appropriate was not the existence of such a right but rather "the gravity of the consequences" flowing from the challenged decision – i.e. the fact that the decision was said to have put the claimant's life at risk. This is consistent with the formulations used by Laws LJ in Begbie ("the nature and gravity of what is at stake") and by Lord Reed in King ("the nature of any interests engaged and the gravity of any adverse effects on those interests"). The interests in question may be such as to ground a right properly so-called (as in ex p. Smith and Pham), but not necessarily. In many of the situations in which the heightened standard of review applies, the claimant will have no prior right, whether under statute or at common law, to the benefit which the decision denies him. 77. Second, where it applies, the heightened standard of review has implications for the way the court evaluates complaints of both process and outcome irrationality. In the former case, the court will subject the decision to "more rigorous examination, to ensure that it is in no way flawed" (Bugdaycay, 531). In this connection, the court will expect the decision-maker "to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account" (YH (Iraq), [24]). Where the complaint is of outcome irrationality, more will be required by way of justification (ex p. Smith, 554); and the importance of the interests affected may, in principle, narrow the range of decisions open to the decision-maker, potentially to just one (Pham, [107]). 78. Third, however, the importance of the claimant's interests is not the only factor relevant to the court's approach to a complaint of outcome irrationality. The nature and importance of the public interests on the other side of the balance may also be important. In some fields, institutional considerations may require the court to recognise that it is less well-placed than a democratically accountable decision-maker to evaluate the impact that a particular decision may have on a particular public interest, or the weight to be accorded to that impact. Equally, constitutional considerations may dictate that the court should pay particular respect to the views of a democratically accountable decision-maker about how to balance the public and private interests. In such cases, even where a decision will have grave consequences for the individual, the court may have to afford the decision-maker a wide margin when considering whether the outcome is irrational: Hoareau, [155].”
“(2A) The High Court – (a) must refuse to grant relief on an application for judicial review, … …if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”
“In my judgment the following propositions relevant to this appeal appear from section 31(2A) of the Senior Courts Act and authorities. First there is a statutory obligation on the Courts, pursuant to section 31(2A) of the Senior Courts Act to refuse to grant relief on an application for judicial review "if it appears highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred" unless the court considers, pursuant to section 31(2B) those requirements, might be disregarded for "reasons of exceptional public interest". Secondly this statutory test replaces the previous discretion of the court hearing a claim for judicial review to refuse to grant relief in a claim for judicial review where the decision maker would "necessarily" have made the same decision, as considered in Simplex GE (Holdings) and another v Secretary of State for the Environment(1989) 57 P&CR 306 at 327 and 329. This means that a narrow construction of "conduct" is not appropriate, see Goring-on-Thames Parish Council at paragraph 47. Thirdly the threshold remains a high one see R(PCSU) at paragraph 89 and courts still have to be cautious about straying into the forbidden territory of assessing the merits of a public law decision challenged in judicial review proceedings, see Plan B Earth at paragraph 273.”