GB, R (on the application of) v The Secretary of State for the Home Department

Neither party to these proceedings carries any burden of proof. It is for the court to

Both parties accept that the applicant is an Albanian citizen.

At the outset of the hearing, Ms Luh, for the applicant, submitted that the documentary evidence adduced by the applicant was sufficient to determine his age without further reference to other evidence being necessary. She sought support from the Court of Appeal authority of SA (Kuwait) v Secretary of State for the Home Department [2009] EWCA Civ 1157. In that case, an appellant in an asylum claim had produced an identity card and a birth certificate showing that she was an ethnic Bidun from Kuwait. The documents had been “verified as authentic”. The Court of Appeal held that the Secretary of State was not entitled to reject her asylum claim based on apparent inconsistencies in her account of past events in Kuwait; the only issue that mattered in the determination of her asylum claim was the fact of her ethnicity. Giving the leading judgment, Sedley LJ held at [14]:

“Without seeking in any way to modify this guidance, I would observe that it has to be applied with careful regard to the particular issue before the tribunal. In many cases an appellant's unreliability on aspects of his or her history may legitimately colour the tribunal's appraisal of documents on which reliance is placed; but it depends very much on the kind of document. Where the only issue is the appellant's status, and the documents relied on, if genuine, are conclusive of status, it can only rarely be helpful or relevant to test out the appellant's veracity or dependability in other ways. IJ Jones recognised this, although he did not give effect to it: see §5 above. Here, for example, it simply did not matter to the genuineness of the two documents whether the appellant's family had been harassed by the police or whether an unreliable witness purported to confirm her status. It might have mattered if there had been evidence showing that her date of birth was different from that on the birth certificate or casting doubt on the genuineness of the aliens registration certificate; but there was none.”

Sedley LJ went on to record that:

“It is also worth bearing in mind in cases turning on the authenticity of official documents that there are two different kinds of inauthenticity: forgery of the document itself, and the making of false entries on a genuine document. It is useful, and sometimes essential, for advocates and tribunals to be clear which kind is in issue. The Home Office letter which I have quoted, for example, accepts that the documents produced by the appellant "correlate with [available] descriptions". The HOPO at the resumed hearing went further, making it clear that they had actually been compared with examples held by the Home Office. This being so, there was no ground for suspecting forgery of the documents themselves. Was there then reason to suspect that the entries on them were false? There are parts of the world where it is known that false entries on official forms can be procured for a bribe; but the immigration judge was given no evidence and heard no suggestion that this can be done in Kuwait by biduns, much less that it had been done here.”

Sedley LJ proposed a two-stage test:

If the answer to both questions is in the negative, then the documents adduced in evidence should be determinative of the fact which they purport to prove.

The documents relied on by G B in the instant claim are helpfully summarised in [5] of Ms Luh’s skeleton argument, which I quote in full below. I am not aware that the contents of this paragraph are in any way disputed by the respondent:

“This is a different and unusual age case. In this claim, the court has before it five pieces of documentary evidence of different nature each confirming the claimant’s claimed age – his biometric passport; his birth certificate; his personal certificate; a school certificate for his final year, Year 9, at school; and his immunisation record. Significantly, the claimant’s biometric passport and birth certificate have been accepted by the Albanian Embassy as genuine; the claimant’s biometric passport has also been accepted by the Home Office as genuine following checks by its forgery expert. A jointly instructed expert has also confirmed the same findings as the Albanian Embassy and the Home Office. Additionally the jointly instructed expert has confirmed that the claimant’s school certificate and immunisation record are consistent with the correct format expected in these documents issued in Albania.”

Addressing the documents in greater detail, Ms Luh submitted that the Home Office Forgery Office (in an email to the defendant dated 19 August 2013 – bundle [2/F334]) confirmed that G B’s passport:

“contained all the expected document safeguards. There is no evidence available … to suggest that the document had been fraudulently obtained … given this and the fact that [G B] visibly looked under 18, the passport was accepted as establishing [G B’s] identity and nationality and the officer accepted his age as 15.”

Likewise, the Albanian Embassy in London had stated in an email of 5 November 2013 [1/B61] that:

“based on our records, the biometric passport and birth certificate pertains to [G B] [and] are authentic issued from the Albanian authority (sic).”

Further, Dr Korovilas, the expert jointly instructed by both parties in the judicial review proceedings, confirmed that the birth certificate:

“appears in the correct format. … This birth certificate contains the appropriate municipal stamps that you would expect to see on a genuine certificate.”

He also noted that:

“the personal certificate … also appears to be in order with the correct format and appropriate stamps you would expect to see on a genuine certificate.”

As regards the contents of the documents, Ms Luh directed me to documents in the bundles before the court which, she submitted, should lead the Tribunal to accept the entries on the documents as accurate and true. It had been accepted by the Albanian government that its management of statistical data required modernisation. The Albanian government, in association with Statistics Norway, had embarked upon a project to digitalise municipal records of civil registration, including births. A National Civil Register had been established in 2008 and local Civil Status Registers had been computerised. Existing manual records had been scanned, including those from the Diber area of north eastern Albania, where G B claims to have been born and lived.

In addition, Ms Luh submitted that the Immigration and Refugee Board of Canada (7 February 2014) had found that an Albanian citizen could apply for and possess simultaneously multiple copies of birth certificates, each copy emanating from the central registers. Further, G B’s passport is a modern biometric document and the process by which G B claimed to have obtained the passport was, she submitted, consistent with the IRBC (Immigration and Refugee Board of Canada) evidence; he had submitted an application together with a birth certificate and a fee and had been given a coupon which he exchanged, several weeks later, for his completed passport.

Finally, the applicant had given an account of how he had obtained his school certificate and immunisation record (for vaccinations detailed on the immunisation record the first entries on which appeared shortly after his claimed date of birth). Ms Luh submitted that the applicant had provided evidence to the age assessors in July 2013 and to the Home Office in August 2013 which had been consistent with the details appearing on the immunisation record which only came into his possession in the United Kingdom after those interviews. The school certificate indicates that GB had completed Year 9. It is dated 10 July 2013, a date consistent with the applicant’s account of having finished Year 9 before he left Albania. The certificate indicates that the applicant performed particularly well in mathematics, a claim which he had also made in his witness statement.

Mr Dubin, for the defendant, submitted that it would be unfair for the claim to be terminated in the summary fashion proposed by Ms Luh and without a proper consideration of the oral evidence. In answer to queries which I put to him, he confirmed that the defendant did not seek to argue that the documents referred to above related to any other individual than the applicant, G B or, indeed, that the applicant himself may be living in the United Kingdom under the assumed identity of G B, the person to whom the (genuine) identity documents referred. Finally, Mr Dubin told me that he would not seek to persuade the Tribunal, in the light of the evidence from the Home Office and the joint expert witness, that the documents themselves were forgeries. Instead, he told me that the defendant’s position was that the information upon which the documents had been based may itself have been inaccurate including, for example, the applicant’s date of birth as recorded on the central Albanian register.

As I have noted above [4] it is the duty of the Tribunal to consider the evidence as a totality before reaching any conclusion. If I were to have acceded to Ms Luh’s submission, I would have denied the defendant the opportunity of testing the applicant’s evidence by cross-examination and of adducing oral evidence from the Social Services officers who had prepared the age assessment; Ms Luh had not submitted that the age assessment was not Merton compliant (see B v Merton LBC [2003] EWHC 1689 (Admin)). I considered that I could not discount the possibility that the oral evidence might prove to be significant in enabling the Tribunal to reach a decision in this case and it was for that reason that I refused Ms Luh’s application to determine the claim on the basis of the documentary evidence alone. Having said that, for reasons which I shall give later in this judgment, that documentary evidence proved to be a considerable significance.

The applicant gave his evidence in Albanian, with the assistance of an interpreter. He adopted his written statement as his evidence-in-chief. In that statement, G B claims that he was born on 5 April 1998 in Peshkopi in northern Albania. His father was an alcoholic with mental health problems. His parents separated two years before G B left Albania. G B’s father abused him physically, on one occasion injuring his head and damaging the sight in his left eye. G B left home because he could not tolerate repeated beatings by his father. At first, he had lived in an abandoned house and relied on friends to bring him food. He told his mother that he intended to leave Albania but did not say where he was going. He had “tagged along” with other friends who were leaving the country and who, as it turned out, were heading towards the United Kingdom where they had relatives. G B had applied for his passport earlier in 2013 and had it with him on the journey from the country. He and his friends were given a lift by a lorry driver travelling through Macedonia and Austria. G B was exhausted by the time he reached the United Kingdom and found himself in Oxford where he met with “a couple of Albanians who were already living there” [21]. G B made himself known to Oxfordshire Social Services who interviewed him on a number of occasions and “kept asking me for documents about my age” [23]. G B could not remember exactly when he obtained the birth certificate and personal certificate. He did recall that he was living at Cowley Road, Oxford, when a housemate told him there was somebody at the door who wished to see him. G B went to the door and there met a man whom he did not know but who gave him an envelope containing the birth certificate and personal certificate. G B had spoken once with his mother after arriving in the United Kingdom but he was aware that Oxfordshire Social Services had contacted her by telephone also (again, on one occasion only).

When Oxfordshire Social Services did not accept his age as claimed, G B contacted a friend in Albania. His friend had obtained a copy of G B’s school certificate and sent it to him. G B’s aunt (who worked in a clinic in Peshkopi) was also contacted by the Albanian friend who obtained a copy of the immunisation record. This was also sent to G B in the United Kingdom.

G B claimed that he had done well at school, especially at mathematics. His last day at school on 14 June 2013 had been followed by a graduation ceremony (which he had also attended) on 20 June 2013. His examination results and school certificate had been issued in July 2013, after G B had left Albania.

Cross-examined by Mr Dubin, G B was asked why, in the record of an interview with the Council age assessors [D53] he had said that, when he had applied for a passport, “no documents were used, [he] just presented his coupon.” In the witness statement, G B claimed that he had produced his personal certificate and birth certificate in order to obtain the passport. G B said he could not remember telling the assessors that he had produced no documents.

In the age assessment [D54] the following account is recorded by the assessors as to how G B obtained his passport:

“[G B] explained on the day before the first age assessment meeting, the assessors confirm this to be Wednesday July 17^th, he had been walking along Cowley Road in Oxford. He was approached by an adult male who, in Albanian, asked [G B] to confirm his name upon which he passed him his passport, birth certificate and family certificate. [G B] was asked how he thought it possible to be reunited with his documents under these circumstances. He said he was surprised. Secondly, as one of the assessors had, having spoken to his mother just two days prior to the age assessment, been advised that he had left Albania with his passport and that she had his birth certificate with her in the home. [G B] said he was unsure and unable to answer this question.”

G B said that he could not remember saying that to the assessor. The documents had arrived, as detailed in the written statement, to his home address in Oxford.

When G B had claimed asylum, he had given a Screening Interview. This interview recorded [G13] that no documents had been used by G B during his journey from Albania to the United Kingdom. In court, G B said that he had used a passport; he could not explain why this fact had not been recorded in the interview.

G B was asked by Mr Dubin why Social Services officers had recorded the fact that he had been visited at his lodgings in Oxford by several 50 – 40 year old men. G B said that he had “no adult men friends.”

I found it helpful to hear G B give oral evidence. I am well aware that limited weight should be placed on impressions gained in court, but I record that the applicant was confident and at ease whilst giving evidence (including under cross-examination) and has, in my opinion, a physical appearance consistent with his claimed age. There were inconsistencies in his evidence. First, the evidence of the age assessment differs from the oral evidence of the applicant as regards the documents which he had been required to produce in order to obtain his passport. Secondly, the applicant has given inconsistent evidence as to how he obtained identity documents after he had entered the United Kingdom; in one account, he met a stranger at the door of his home who gave him the documents and, according to an alternative account, he had been encountered by a stranger whilst walking in Cowley Road, Oxford. Finally, the Screening Interview records that the applicant did not use any documents on his journey to the United Kingdom whereas G B claims that the driver of the lorry had arranged for his passport to be stamped as they travelled to the United Kingdom.

I find that these inconsistencies are sufficient for me to doubt the credibility of the applicant’s evidence and, indeed, the reliability of anything he has told me. No explanation was given as to why the applicant’s account should differ although I accept that some of the inconsistencies appear in documents prepared by third parties following interviews with the applicant, rather than in any statement prepared by the applicant himself.

Ms Rahimi is a student social worker who obtained a degree in social work at Ruskin College Oxford in September 2014. She has worked for Oxfordshire Social Services, in particular with unaccompanied asylum-seeking children. At the time she gave evidence to the Tribunal, she was awaiting her final registration as a social worker. She was the lead social worker in the preparation of the age assessment of G B.

Ms Rahimi has carried out more than 100 age assessments and told the Tribunal that in about 80% of assessments she had found individuals to be older than they had claimed. Together with her co-assessor, Ms Juliet Romanis, Ms Rahimi had assessed G B over two days (18 July/22 July 2013). In her statement, Ms Rahimi confirms that G B had produced a school certificate and vaccination record during the course of the assessment.

Cross-examined by Ms Luh, Ms Rahimi said that she had telephoned a woman in Albania using a telephone number provided by G B. She had been satisfied that the woman she spoke to was G B’s mother. She said that G B’s mother had been anxious but not hostile. She had, however, terminated the telephone call when Ms Rahimi had indicated that Social Services were intending to return G B to Albania. Ms Rahimi said that she had no reason to doubt that G B had, as he claims, suffered abuse in his home in Albania at the hands of his father.

Ms Rahimi said that she had been lead assessor in the report for G B and that she herself had written the age assessment which her colleague, Ms Romanis, had then approved.

Ms Luh asked Ms Rahimi to explain why, in a file attendance record of the call with G B’s mother [F330] it was noted that she had:

“advised that we are in the process of arranging [G B’s] return to Albania. Mrs B said if he is returned he would just run away again so why return him. I advised that he is best placed with his family and so we are willing to meet the costs of his flight home.”

Ms Luh queried why that statement had been made at a time when the age assessment had yet to be finalised. Ms Rahimi said that she had prepared the attendance note which she described as “badly phrased but not sinister.” The repatriation of G B to Albania had been “a process, not an event.”

Ms Luh then referred Ms Rahimi to a number of emails contained at [F] of the bundle. Ms Rahimi confirmed that there had been a so-called “minded to” meeting (at which the conclusions of the report had been discussed prior to finalisation) on 25 July 2013. She was asked by Ms Luh why an email of 22 July 2013 was headed “age assessment carried out by Maria Rahimi and Juliet Romanis – outcome 18” and why an entry on the record by Ms Cabrera-Jimenez (Ms Rahimi’s supervisor at Oxfordshire Social Services) which was dated 24 July 2013 stated “age assessment approved. Adult. Case to close.” Ms Luh put it to Ms Rahimi that these records indicated that a decision had been reached before the final “minded to” meeting. Ms Rahimi said she could not explain the entries. She insisted that there had been no final decision until the meeting on 25 July 2013. Pressed on the matter by Ms Luh, Ms Rahimi said, “I have to say this throws me slightly.” Ms Rahimi insisted that her supervisor would not have “signed off” the age assessment prior to the “minded to” meeting.

Ms Luh asked Ms Rahimi about the apparent inconsistency in G B’s evidence as regards the documents which he had needed to produce in order to obtain his passport. The age assessment at [D53] recorded that he had not used any documents; However, Ms Rahimi’s manuscript note at [D15] records the answer given by G B when questioned about the documents as “can’t remember.” Ms Rahimi said she could not explain this discrepancy. She acknowledged that she should have put this question in greater detail to G B at the “minded to” meeting. She said, “we didn’t address the process of obtaining the passport or our doubts about how he had obtained it.”

She acknowledged that she should have asked G B how he had been able to obtain the passport without any documents; she said, “I see the logic of the question and I would certainly ask in the future.”

Ms Rahimi was asked about the school certificate and vaccination certificate. In her statement, she claimed that she had these documents before her when she prepared the age assessment. She admitted in cross-examination that she was not sure that she did have them. She acknowledged that the age assessment itself does not refer to the school certificate or vaccination certificate. She said that she had no recollection of having seen the school certificate or vaccination certificate at all. She said that her statement at [12] (“G B disclosed a school certificate and vaccination record”) was not true or accurate. She denied, however, that she had embellished the statement.

Ms Rahimi also acknowledged that she should have checked what G B had said about his school career against the school certificate which had been produced. She could not explain why she had not done this.

I found Ms Rahimi to be a helpful and candid witness. The fact remains, however, that the cross-examination of her evidence exposed serious inadequacies in her recording of information, including that in the assessment report itself. I was concerned that she was unable to offer any explanation for the statement made in the assessment report that G B had not used any documents in order to obtain his passport; that statement is plainly at odds with her handwritten, contemporaneous note. I was also concerned that, despite her protestations to the contrary, the computer record appears clearly shows that a final decision had been taken as to G B’s age before the “minded to” meeting at which any discrepancies in G B’s evidence should have been put to him. Any responses should have been considered by the assessors before they made a final decision. It was also surprising that Ms Rahimi adopted a witness statement the contents of which she later denied, in part, in her oral evidence. I do not find that Ms Rahimi has deliberately sought to mislead the Tribunal or the applicant but I do find that the problems exposed in cross examination lead me to attach less weight to her evidence (including the assessment report itself) than might otherwise be the case in a Merton compliant report. In particular, it is difficult to see how the Tribunal should consider that the weight attaching to G B’s evidence has been diminished because it conflicts with statements which he had allegedly made to the assessors and which are recorded in Ms Rahimi’s own unreliable witness statement and oral evidence.

Ms Romanis is a social worker working for the Children, Education and Families Department at Oxfordshire County Council. She has fourteen years’ experience with that council and had been an assessment social worker for the last nine years. The assessment of G B was her fourth age assessment.

Examined by Mr Dubin, Ms Romanis said that she had been trained in age assessment by Ms Rahimi and others. Cross-examined by Ms Luh, Ms Romanis admitted that she “probably should” have arranged for an assessment to be made of the authenticity of the documents produced by G B. She had assumed that Ms Rahimi had asked the Albanian Embassy how, for example, an Albanian birth certificate may be obtained. In her written statement at [4] Ms Romanis records that she had:

“read Maria Rahimi’s written statement produced for these proceedings and confirm that it accords with my recollection of what happened during the two assessment days.”

She told the Tribunal that she had not seen the final, signed version of Ms Rahimi’s statement. To that extent, her statement at [4] was not accurate.

Ms Romanis said she had not been aware of G B’s school certificate or vaccination records. She said that, had she been aware of those documents, she and Ms Rahimi should have invited G B back for a further interview to discuss the documents with the likely result that his age would have been reassessed.

Ms Luh asked Ms Romanis (as she had asked Ms Rahimi) why she believed that her supervisor had signed off the report before the “minded to” meeting. She could offer no explanation. Ms Romanis commented on the nature of the manual records which had been uploaded onto the computer register in Albania. She said that her comments were based upon her reading of the Norwegian report. She described the system as “chaotic” but admitted that she did not know how the records were actually uploaded; she was not suggesting that births had been inaccurately registered in Albania under the previous manuscript system.

Finally, Ms Romanis was asked whether, if she were now to consider all the evidence including the school report and vaccination document, she would reassess G B’s age. She said that she would. She said, “if I had all the documents, I probably would have accepted his age.” At the very least, Ms Romanis said that there should have been a reassessment of G B’s age.

I accept that both Ms Rahimi and Ms Romanis have endeavoured to give truthful and accurate evidence before the Tribunal. I do not accept any suggestion that they have deliberately given false evidence. However, in acknowledging the failings of the process as conducted by her and Ms Rahimi, Ms Romanis was particularly candid as was shown by her final admission that, knowing what she now knows and having been directed to important documentary evidence which she had previously not considered, she would accept G B’s claimed age or, at the very least, would have considered a reassessment necessary. As I have noted in my account of her evidence, Ms Romanis’ written statement and the age assessment report contain statements which she told me she can no longer describe as accurate.

Having heard the helpful oral submissions of Counsel for both parties, I reserved my judgment.

I return to the documents produced by G B which I have addressed above (see Preliminary Issue). It is clear from the judgment of Sedley LJ in SA (Kuwait) that the Tribunal may, in effect, ignore or discount an applicant’s unreliable personal testimony as to a particular fact if that fact is capable of being proved by documentary evidence the authenticity of which is not contested. Whilst I continue to consider that it was right for the Tribunal to examine all the evidence (indeed, it is arguable that it was required in law to do so) the submissions made by Ms Luh at the outset of the hearing now return with considerable force. The applicant has produced documents which, prima facie, prove that he was born, as he claims, on 5 April 1998. Evidence has been adduced detailing the administrative systems out of which those documents have been generated; (see Prenga [2010] EWHC 1765 (Admin) – whether a document can be determinative of age depends on the applicant’s country of origin and the quality of the material contained within the document). In Albania, an antiquated, manuscript (and possibly unreliable) record system has been systematically replaced by a computer system and an extensive retrospective computerisation of old records undertaken. There is no evidence to suggest that the Diber area (where G B claims to have been born) has failed to upload its records to the new system whilst the Albanian Embassy in London has confirmed that the birth certificate and passport produced by the applicant matches the central record held in Albania. Significantly, the defendant authority does not suggest that the applicant is an imposter or that the (genuine) records relate to anyone other than the applicant. The best which Mr Dubin could offer was that the applicant’s mother (to whom the Social Services officers have, unusually, spoken directly by telephone) may have innocently provided inaccurate information about G B’s birth to the Albanian registry. I have to say that it does not appear to me to be very likely at all that any mother would make a mistake as to her child’s date of birth which was wrong by a margin of several years.

I do not consider anything which I heard in evidence in court has cast significant doubt on the provenance of, or the information contained within, identity documents from Albania which both parties accept relate to G B. That is a view underlined by the fact that the Home Office Forgery Department and an independent expert (jointly instructed by the parties) could find nothing wrong with the documents GB has produced. My primary finding, therefore, is that the identity documents alone prove G B’s claimed age notwithstanding the inconsistencies (which I have recorded above) which were revealed by cross-examination and G B’s own evidence.

If I am wrong in that finding, then the documents need to be considered as part of the totality of the evidence and weighed accordingly. I accept that the manner by which G B claims to have obtained his documents appears implausible. Indeed, if one reads (4) of the addendum to the age assessment dated 21 October 2013 one can see that the only reason given by Ms Romanis and Ms Rahimi for doubting the accuracy of the documentary evidence is that they did not believe his story as to how he obtained the documents. However, as I have noted above, the fact that G B may have given an unreliable account does not, on SA (Kuwait) principles, undermine his case. Nor, in my opinion, are the implausibilities and discrepancies in G B’s evidence sufficiently serious to be trumped by the age assessment report or other evidence of Ms Rahimi and Ms Romanis. I have attached limited weight to an age assessment report which (i) contains details at odds with the assessors’ own manuscript notes; (ii) was prepared without any proper consideration of the school report and vaccination report; (iii) appears to have been “signed off” by the supervisor before a meeting at which G B was to be given the opportunity of addressing apparent discrepancies in the details which he had provided. I have also taken account of the fact that Ms Romanis candidly admitted that, if she were reassessing G B’s age in the light of all the evidence now produced, she might well agree that he is the age he claims to be.

I find, on the standard of the balance of probabilities, that the applicant’s date of birth is 5 April 1998 and I make a declaration to that effect accordingly. The parties have fourteen days following the receipt by them of this judgment to make further submissions in writing as to the terms of any further orders sought and, in particular, as to the question of costs. In the absence of any agreement on these issues between the parties, I will determine any issues outstanding on the basis of the written submissions.~~~0~~~~