Article by Tricia Lawlor and Shannon Wheeler at Invicta Law instructed by Kent County Council.
The Local Authority’s role in age assessment is not to make determinations on the authenticity of documents but rather to assess whether an individual’s claim as a minor is reasonable and credible.
R(MS) v KENT COUNTY COUNCIL
One of the ongoing challenges faced by local authorities and public bodies in the UK is the accurate determination of the age of individuals seeking asylum. Age disputes can have significant implications for the services and support that individuals are entitled to receive. This article explores a recent case involving MS, a young Afghan asylum seeker, whose age was contested during a hearing for interim relief. Perhaps even more significant in this case is the role played by MS’s tazkira – an Afghan national identity document – used as part of the evidence to establish his age. The tazkira is commonly relied upon by asylum seekers from Afghanistan to prove their identity and, in some cases, to support claims about their date of birth. Yet, as the Upper Tribunal and experienced legal practitioners know, the tazkira has often been a problematic document, prone to issues around authenticity and reliability.
What makes MS’s case particularly unusual, however, is the proximity of his 18th birthday. His claimed birthday fell just one day after the hearing, creating a small but critical window in which to determine whether he was, in fact, under 18 and entitled to the Children Act support as a child. I do not think that MS would have sought interim relief for support as a former relevant child if he had turned 18 by his claimed age during the limitation period.
Expert Evidence
As is commonly encountered in cases involving young Afghan asylum seekers presenting a tazkira, MS’s legal team instructed Drs Giustozzi and Zadeh to prepare expert reports. Dr Zadeh, a document examiner, firmly concluded that the tazkira was authentic, seemingly overlooking the alterations identified by Mr Johnson, Home Office expert. Given the significance of the tazkira in this case, it appears that further examination is critical, and as such, Pepperall J has decided to defer the decision on permission until additional clarifications are provided by Drs Giustozzi and Zadeh.
It was noteworthy that Pepperall J took the opportunity in his judgment to address both Dr Giustozzi’s and Dr Zadeh’s reports. The judge was particularly critical of Dr Giustozzi’s report, which, he held, did not qualify as expert evidence. The judge pointed out that Dr Giustozzi’s approach in this case – which mirrors his method in numerous other cases – was to rely on a series of informal checks by third parties: Dr Giustozzi would provide Mr Safi, a journalist and researcher in Kunar, (one of the 34 provinces of Afghanistan, located in the northeastern part of the country) with a scan of the tazkira. Mr Safi would then ask his contact Mr Pakteen, a civil servant in Kabul, to verify the tazkira against government records. Mr Pakteen would report the findings of his search of the database to Mr Safi, who would then relay this information to Dr Giustozzi for him to produce his expert report. Pepperall J ruled that this constituted second-hand hearsay rather than expert testimony. Notably, this point appears to have been accepted by MS’s solicitors and counsel. This finding has significant implications: it means that Dr Giustozzi’s evidence cannot be regarded as expert testimony, and importantly, local authorities should not be held liable for his fees in cases where they lose.
Further, Pepperall J concluded that Dr Zadeh’s expertise should be limited to document examination and that he should refrain from offering opinions on linguistic or other matters relating to Afghanistan, areas he had previously ventured into. This ruling may offer some relief to local authorities, who are often required to scrutinise Dr Zadeh’s reports, as it clarifies the scope of his expert testimony.
The Tazkira and Document Alteration
In this case, MS’s tazkira became a focal point in the dispute over his age. As with many Afghan asylum seekers, the document is key to the age assessment process, and the authenticity of such documents is frequently under scrutiny. The tazkira itself can sometimes contain inaccuracies or be subject to alterations, making it difficult to rely on as definitive proof of identity or age.
In MS’s case, the National Document Fraud Unit (NDFU) was tasked with verifying the legitimacy of the identity document presented by MS. The NDFU, which is regularly called upon to examine documents in age dispute cases, found that MS’s tazkira had been altered in at least one place. This raised serious concerns about the authenticity of the document and its reliability as a basis for determining MS’s age.
The document examiner, Mr Johnson, was careful in his conclusions. While he did not definitively state that the tazkira was entirely fraudulent, he demonstrated, through a detailed report, that the number on MS’s tazkira had been altered. This alteration cast doubt on the document’s reliability, adding an additional layer of complexity to the age dispute.
Document alterations like this are not uncommon in cases involving asylum seekers from countries such as Afghanistan, where personal documents may be lost, destroyed, or altered for various reasons. The possibility of forgery or tampering is particularly high in regions with significant political instability, as identity documents may be manufactured or modified to suit various needs, including facilitating migration.
Interim Relief – The Legal Context
There can be significant dispute regarding the law on interim relief in age assessment cases. However, the legal position can be summarised as follows: In a public law case, a claimant must demonstrate:
(a) that there is a serious issue to be tried, and
(b) that the balance of convenience favours the granting of interim relief.
At this stage, a more stringent test is applied to account for the public interest. This follows the standard American Cyanamid approach, with consideration given to the public interest, as outlined in Smith v Inner London Education Authority [1978] 1 AER 411.
Efforts have been made to establish a general rule that interim relief should be granted in every case, with R (BG) v Oxfordshire County Council [2014] EWHC 3187 (Admin) coming close to adopting such an approach. However, the courts have resisted this notion. In his analysis of the case law in R (KRA) v Cheshire East Council [2024] EWHC 575 (Admin), Fordham J reaffirmed that each case must be assessed based on its specific facts.
Given that the threshold for granting permission is relatively low in judicial review cases, if permission is granted, it should therefore be accepted by both parties that there is a serious issue to be tried. This is implicit in the judge’s decision to grant permission.
The primary consideration, therefore, for the court to consider is the balance of convenience.
In many cases, such as BG, the key factor has been the potential harm to an individual who, if ultimately found to be a child, would have been placed in adult accommodation. As a result, it has become increasingly difficult for local authorities to oppose applications for interim relief when the claimant continues to assert they are a child. Resistance is more feasible, however, when the individual asserts they are over 18 at the time of the interim relief hearing. That said, case outcomes can vary, and there are examples in which local authorities have succeeded in defending interim relief claims.
Each case in the end will be a matter for judicial discretion as regards the balance of convenience.
Although Pepperall J did not rule on permission, the judge did conclude that there was a serious issue to be tried. This was an inevitable finding, given the apparent dispute around the expert evidence. It will only be once Drs Giustozzi and Zadeh provide their responses that Kent will be in a position to assess the strength of its case.
The expert evidence in this case was crucial, as the age assessment has already considered and dismissed all other evidence that MS could rely on. He did not challenge the age assessment but had provided new evidence through the tazkira and sought interim relief while that new evidence was being considered and reviewed.
Pepperall J correctly outlined the applicable law in his judgment on interim relief. What ultimately tipped the balance in the claimant’s favour, as noted at [46], was the evidence of MS’s particular vulnerability. While this evidence was not especially strong, it is possible that a different judge might have reached a different conclusion.
Conclusion: Lessons from MS
MS’s age dispute highlights the significant challenges local authorities face when handling complex age assessment cases. While age determination may seem like a straightforward issue, the reality is far more complicated. Disputed documents, conflicting expert opinions, and the ethical duty to safeguard vulnerable individuals create a web of legal, moral, and procedural considerations.
For local authorities, MS’s case underscores an important lesson: that you can challenge ID documents, not just tazkiras, and you can challenge expert evidence if you know how – and that is why, although the judge granted interim relief, he made a significant interim judgement evaluating whether the so-called expert evidence about the tazkira was in fact expert evidence at all.
As MS’s case progresses, local authorities will continue to navigate these challenging waters, striving to balance fairness, integrity, and compassion, along with careful investigation and scrutiny of the information and documentation offered by the young person.
The outcome of this case could not only determine MS’s future but could also offer valuable insights into how age disputes in asylum cases should be handled more broadly.
In conclusion, the case of MS underscores the critical importance of analysing expert evidence and the integrity of documents in legal proceedings. The way expert reports are handled, including the qualification of experts and the scope of their findings, can significantly impact the outcome of a case. The MS case highlights the need for rigorous scrutiny of expert reports, ensuring that they are based on credible, consistent, and verifiable data.
This case serves as a reminder that legal practitioners must exercise due diligence in scrutinising both the qualifications of experts and the authenticity of documents presented as evidence. The lessons from MS also emphasise that when document integrity or expert reports are in question, courts apply a heightened level of scrutiny to safeguard the fairness and reliability of proceedings. Ultimately, this case reinforces the broader legal principle that evidence – whether expert or documentary – must be handled with the utmost care to ensure justice is served.
