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Iraqi asylum-seeking young person successful in establishing his claimed age in a complex case concerning identity documents

The Upper Tribunal yesterday handed down judgment in the case of R (ZBR) v Kent County Council (JR-2022-LON-000431) accepting ZBR’s claimed age and date of birth with the consequence that he established his entitlement to leaving care support under the Children Act 1989.

The case ultimately turned on upon identity documents that ZBR had been issued in Iraq, and the weight that the Tribunal placed upon various original and copy documents when determining his age in an inquisitorial fact-finding hearing. 

Cases involving identity documents are often complex, including where they are relied upon to establish age in age assessment challenges.  This case is an interesting example of how the Tribunal carefully approached the question of the validity/authenticity of documents and the difficult balance the Tribunal must strike when considering a range of documents when a number of those documents have been found or assessed to be potentially altered or not genuine documents.

Factual background

ZBR is an Iraqi national of Kurdish ethnicity who consistently claimed to have been born on 29 March 2004.  He was initially age disputed by the Home Office upon claiming asylum although was treated as a child for the purpose of his asylum claim and referred to Kent County Council until further evidence was available in relation to his age. 

Kent County Council took him into care and then commenced an assessment of ZBR’s age.  ZBR refused to cooperate with the assessment, including refusing to attend the age assessment interviews, on the basis that he considered that his identity documents should properly establish his age.  Kent, after a largely paper-based assessment, determined that ZBR was an adult likely 24 years of age at the time of the assessment and therefore born on 29 March 1997, 7 years older than he claimed to be.

Identity documents

ZBR produced his Civil Status Identity Document (CSID) and Iraqi Nationality Certificate (INC) as well as a photograph of an Iraqi passport which all bore his name and clamed date of birth.  His CSID and INC were considered by the NDFU who determined that they contained substitute photographs and should not be relied upon as evidence of identity or nationality.  ZBR, through his representatives, then went to great lengths to verify/authenticate his documents, including instructing Dr Rebwar Fatah to consider the documents and Mr Peter Swann to consider the thumb impressions that appeared on his Iraqi ID documents.  Dr Fatah had similar concerns to those expressed by the NDFU and found that the CSID and INC “lack the main characteristics of similar reliable documents.”  At the same time, Mr Swann found that the INC bore a fingerprint which matched with ZBR’s print, taken under forensic conditions in the UK.

ZBR further relied upon a copy of the identity page of an Iraqi passport issued to him which was found by Dr Fatah to have the main characteristics of a reliable document.  The passport copy was further verified by ZBR’s solicitors with the Iraqi Embassy in London who confirmed the Applicant’s name and date of birth as claimed as recorded in the passport.

The issues at hearing

At hearing, there was a substantial focus on ZBR’s credibility and on the reliability of his identity documents.  The Tribunal was faced with the task of considering how the conclusions of the NDFU and Dr Fatah in respect of the CSID and INC fitted with ZBR having been issued with an Iraqi passport bearing his claimed date of birth, which had been confirmed by the Iraqi Embassy in the UK.

The Tribunal Judge (Upper Tribunal Judge Canavan) carefully considered how the documents; various authentications and country information fitted together.   She reiterated that the burden of proving an allegation of forgery (as alleged by Kent) rests on the party making that assertion [§14] and the importance of considering the evidence as a whole. 

The Judge weighed up all of the sources of evidence and concluded that:

  • Dr Fatah’s reports were detailed and well-balanced and he was “best placed to give the most detailed opinion on the authenticity of these documents based on his knowledge of the customary features of Iraqi identity documents and his expert knowledge of the procedures by which they are issued” [§21].

  • Dr Fatah considered that it was “likely that officials who issue passports would be able to recognise inauthentic documents”, he considered it a “highly uncommon scenario” for a genuine passport to be issued using an inauthentic CSID and INC “because Iraqis can easily obtain authentic identity documents” ‘§34].

  • ZBR arrived in the UK with copies of his CSID and INC but seemed reluctant to produce the original documents.  He gave a plausible explanation for not wanting to admit he had an Iraqi passport, being worried that he may be sent back to Greece [§48].

  • ZBR’s credibility was also impacted by a lie as to his contact with his brother which may have been explained by the fact that he wanted to obscure that his brother was in prison at the time [§49].

  • The overall picture was thus that ZBR had not been honest about several matters, he failed to engage with the age assessment process and at times sought to obstruct it [§55].

  • The evidence suggests that there is good reason to doubt the reliability of the CSID and INC [§56].

  • The background evidence is mixed, it shows that it is possible to obtain false “breeder documents” to apply for a genuinely issued Iraqi passport.  On the passport is issued, an enquiry, such as one made by the Embassy in this case, is not likely to elicit a more detailed consideration of the authenticity of the underlying documents [§57].

  • Dr Fatah’s report and the background evidence suggest that most officials in Iraq are likely to be able to identify false documents fairly easily due to the important role documents play in everyday life. Although corruption is a serious problem in Iraq, the evidence shows that it might not be all that easy to obtain a passport with the use of false “breeder documents” albeit it could be done [§58].

Tying all of these matters together, the Judge concluded that:

  • Although it was possible on the country information to obtain a passport based on false “breeder documents” she considered the alternative possibility that the family were scared to send the original documents in case ZBR were refused, noting SMO and KSP (Civil status Documentation, article 15) CG [2022] UKUT 00110 (IAC) [§61].

  • Some of the credibility issues surrounding ZBR’s reluctance to disclose the original documents or to be honest about the level of contact he had with family in Iraq, might relate to that issue as opposed to trying to avoid authentication [§61].

  • Having considered the arguments in full, the decision just tips in ZBR’s favour.  Although there is a strong suspicion that the CSID and INC might not be genuine documents, there is evidence to show a genuine Iraqi passport has been issued to ZBR [§64].

  • The details on the passport page have been verified by the Embassy of Iraq and verification of an identity document by the national issuing authority “should be given weight” [§64].

  • The Judge concluded that “it was not necessary for me to be certain that the date of birth on the passport is correct” with the standard of proof leaving room for doubt [§65].

For the purpose of the proceedings, the Judge concluded that ZBR was issued with a genuine Iraqi passport which was enough to show on the balance of probabilities that the date of birth on the passport should be treated as reliable [§65].  On that basis, the Judge declared ZBR’s age and date of birth as claimed.

Kent County Council sought permission to appeal to the Court of Appeal against the Judgment of Upper Tribunal Judge Canavan which was refused as disclosing no material error of law.

ZBR was represented by Edward Taylor, Senior Associate at Osbornes Law, assisted by Mary Rizk.  Antonia Benfield of Doughty Street Chambers was counsel instructed for the fact-finding hearing, further to the grant of permission, with Philip Rule of No.5 Chambers previously instructed.