Expert evidence in age assessment judicial reviews

24 October 2024

In the recent case of R(MS) v Kent County Council [2024] EWHC 2661 (Admin), Joshua Swirsky represented the local authority in an application for interim relief by a young Afghan asylum seeker. The case is significant, not for the decision, but because of what Pepperall J said about expert evidence.

The judgment is a timely reminder that anything doesn’t go in age assessment cases and the ordinary Civil Procedure Rules regarding expert evidence have to be followed.

Background to the decision

Unusually, the claimant, MS was due to turn 18 on the day after the hearing. Nonetheless Pepperall J granted interim relief, limited to leaving care services, having applied American Cyanamid principles. He concluded that the balance of convenience pointed towards the grant of relief.

MS accepted that he did not know his date of birth but had produced a Tazkira (Afghan national identity document) which he said proved his claimed age. The authenticity or otherwise of the Tazkira was therefore likely to be a key issue.

Obtaining permission before adducing expert evidence

The judge reminded the parties of CPR 35.4(1) about the need to obtain permission before putting expert evidence before the court.

He reminded the parties that this applied to judicial review proceedings as much as ordinary civil claims. This is clear from the Administrative Court Guide at 23.2.1 and 23.2.5.

He also stressed the importance of obtaining permission for expert evidence at the earliest opportunity and not when actually in court on an interim relief application.

Issues related to the specific expert evidence

In support of the local authority’s position, there was a statement from an officer at the NDFU (National Document Fraud Unit). As is often the case, this was in the format used in criminal proceedings.

Pepperall J gave permission for this evidence, applying the test on CPR 35, but directed that it be re-served with the correct civil expert’s declaration.

The judge then turned to the evidence relied upon by MS.

In common with other age assessment judicial reviews involving young Afghans and Tazkiras, MS relied upon reports from Drs Giustozzi and Zadeh.

Dr Giustozzi, as in many other cases, had contacted a journalist friend in Kabul, who then contacted a government employee, who purported to check some records to verify the Tazkira. This was then reported by Dr Giustozzi.

Pepperall J held that this was not expert evidence. It was second-hand hearsay.

Although it would be admissible in civil proceedings by virtue of s1 of the Civil Evidence Act 1995, it should not be described as ‘expert evidence’ as Dr Giustozzi was not giving an expert opinion in these circumstances.

Pepperall J gave permission to MS to rely on Dr Zadeh’s report insofar as it dealt with document examination, his area of expertise.

However, the judge refused permission to rely on Dr Zadeh’s evidence relating to MS’ linguistic ability or the similarities between MS’ photograph on the Tazkira and MS himself. These were not matters within his expertise.

MS’ solicitors were ordered to re-reserve the report, should they wish to rely upon it, with these passages removed.

Read the judgment in full in MS, R. (On the Application Of) v Kent County Council [2024] EWHC 2661 (Admin) (22 October 2024)