This judgement concerned a case in the Upper Tribunal to examine when/where it might be appropriate to gain disclosure and inspection of a person’s (applicant) social media accounts for the purpose of an age assessment.
The applicant, from Afghanistan, arrived in the UK on the 8th of September 2021 reporting they were born in 2008. A brief enquiry was completed, which concluded that the person was an adult aged between 22 and 25 years old, based on the following points:
The applicant disputed this decision and was given permission to apply for judicial review. The judge asked all parties to provide all relevant documents that could determine the applicants date of birth however the applicant did not include their Facebook information, despite including a statement from their brother.
A case management hearing was held in which the judge directed that the applicant provides their usernames and passwords for all of their social media accounts and ordered the Local Authority go through all these and provide an updated report on the findings.
However, the applicant challenged this part of the order with their legal advisor arguing;
The order extends beyond the power provided to the Upper Tribunal by the Procedure Rules; it is contrary to Articles 8 and 10 ECHR; it is inadequately reasoned; or it represented an unlawful exercise of the Tribunal’s discretion.
The order is too broad and ill-defined to be proportionate, sufficiently clear and specific to be capable of fair and effective compliance, or consistent with the duty of candour in public law.
The Local Authority disagreed stating there was nothing wrong with the directions as this would assist the Court in determining the probable age of the applicant.
The judge considered both positions and through discussions with both legal teams they agreed the following searches would take place:
The applicant’s legal representation agreed to file a social media list and they would apply a duty of candour to the search ensuring all information would be shared even if it would be averse to the applicant’s case.
The duty of candour in judicial review proceedings is well established and all parties are under a very high duty to assist court with full and accurate explanations of all the relevant facts for the court to decide.
These judgements are clear that it is an applicant’s duty to submit all documents, adding context to them. They must disclose all documents that could be adverse to their claim and draw attention to this for the judge considering their application. Basically, all parties from the outset are responsible to disclose all their evidence whether that supports or disputes a young persons claimed age.
To be honest, it is impossible to be prescriptive about the types of documents which must be disclosed in an age dispute. However we would always advocate a fair and balanced assessment that includes all evidences both supportive and adverse.
Social workers and team managers need to be aware that any communication, whether that is written in supervision notes, via teams messages or within the case file should be disclosed in the event of a legal challenge, so the court can consider whether this may be prejudicial to the case.
At ISWS we have started to see these social media checks completed and submitted as evidence for the assessments of age disputed young people and been able to explore the adverse points in their assessment. However, our experience so far has found this evidence to be neutral and we have not been able to add significant weight to either support or dispute age.
If you need to consider social media as evidence in your age assessment, we would recommend looking at our vlog post here, where we examine another judgement looking at practical things to consider when presenting this type of evidence.
As always, if you need support with your age assessment please do get in touch
Author: Rachele Button
