The applicant, a Malian national, applied for asylum on 21 December 2019. The Minister for Asylum and Migration did not consider it credible that the applicant was born in 2003, and was thus a minor at the time of his application. Upon further investigation, the Minister considered based on the principle of mutual trust, that they could rely on the findings of an age assessment conducted by Belgium which found that the applicant was an adult, born in 1995. Following a judgment of 1 March 2022 pronounced by the District Court of the Hague, seated in Rotterdam, the applicant filed a further appeal before the Council of State, arguing that the District Court was wrong to assume that the principle of mutual trust can be relied upon with regards to the findings of age assessments.

The Council referred to Work Instruction 2023/6 on age determinations, through which under section 2.4, the Minister is generally allowed to rely on the accuracy of an applicant's date of birth as registered in another EU Member State, based on the principle of mutual trust. The Council noted that this principle implies that such foreign records are assumed correct unless the applicant can credibly challenge their accuracy.

The Council noted that this approach is supported by prior case law from the Council, however, in this current case, unlike previous cases, the Council had to directly address whether the principle of mutual trust should apply to age assessments. The Council concluded that the principle should not apply when the Minister includes an age registration from another EU Member State in assessing an applicant's age, thus reversing previous case law and calling for the Minister to amend its policy.

The Council referred to European case law related to the rights of the child. The Council noted that in the judgment Darboe and Camara v Italy (5797/17), the ECtHR ruled that when there is uncertainty regarding an individual's age, the presumption of minority should apply. The Council highlighted that this presumption of minority ensures that protections for children, derived from both national and international standards, are enforced, and prevents the risk of violating their fundamental rights by failing to recognise their minority. The Council referred also to the CJEU judgment K and L v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) (C-646/21), which emphasised that the best interests of the child should be integral not only in the substantive review of applications involving children but should also influence procedural safeguards throughout decision-making processes.

Moreover, with reference to  CJEU judgment Abubacarr Jawo v Bundesrepublik Deutschland (Case C-163/17), the Council noted that the Common European Asylum System and Dublin Regulation operate on mutual trust, meaning that each Member State should be assumed to be compliance with EU Charter, the Refugee Convention and the ECHR. Nevertheless, the Council found that EU law does not prescribe specific methods or safeguards for age assessments, nor does it regulate the weight assigned to age registrations from other Member States. Thus, the Council ruled that the principle of mutual trust is not applicable to age assessments.

The Council also addressed the comparison that the Minister invoked with the CJEU judgment C.K. and Others v Republic of Slovenia (Republika Slovenija) (C-578/16) which clarifies that mutual trust presumes asylum seekers receive adequate care across the EU when considering the conditions an applicant will face following a Dublin transfer, however the Council noted that that judgment is not comparable as in this case, the Netherlands itself must assess the age of an applicant.

In this judgment, the Council noted that, in the absence of specific EU procedural rules, Member States have procedural autonomy to establish rules for assessing and registering the age of asylum applicants, which must adhere to EU principles of equivalence and effectiveness, and must uphold EU fundamental rights.

The Council highlighted that under national law, the burden of proof for age and identity lies with the applicant. However, as asylum seekers face unique challenges in submitting evidence, the Council argued that the Minister must meet the burden of proof on the basis of the duty to cooperate under Article 4(1) of the Qualification Directive. The Council highlighted that if an applicant claims to be a minor, the presumption of minority applies initially, placing the burden on the Minister to rebut this presumption with further investigation if necessary. Furthermore, the Council emphasised that this process must prioritize the best interests of the child, following Article 24 of the EU Charter and Article 3 of the Convention on the Rights of the Child, and grant applicants the benefit of the doubt where evidence is scarce.

Significantly, the Council noted that if the Minister identifies an age registration from another Member State indicating that the applicant is an adult, he may consider it but must thoroughly investigate and clearly justify the importance he assigns to it. The Council elaborated that the Minister should, if possible, clarify the basis of the registration, whether from source documents or a medical age assessment, and consult with the Member State for further details to determine its reliability. If the registration is solely based on the applicant's own statement, the Council stated that the Minister should investigate the circumstances of the declaration and that any conflicting explanations from the applicant must be reasonably justified, as discrepancies could impact credibility. In evaluating an applicant's age, the Council emphasised that the Minister must review all relevant evidence, including both official and unofficial identification documents and statements from Nidos guardians.

With regards to the Minister's assessment of the applicant's age in the present case, the Council upheld the Minister's assessment that the applicant is an adult based on conflicting age documentation and findings from prior investigations in Belgium and Switzerland, and from data extracted from the applicant's mobile phone. The Council noted that although the foreign national presented a Malian identity card indicating he was a minor, this claim was undermined by multiple inconsistent records, including a Belgian bone scan suggesting a 1995 birth year and a Swiss record linking him to an earlier birth date (1997) verified by the Malian embassy in Rome.

Moreover, the Council considered that the applicant's identity card and statements from guardians and psychologists suggesting he appeared and behaved as a minor were considered, but were ultimately outweighed by the evidence supporting an adult age. Furthermore, the identity card's authenticity was questioned, particularly due to procedural inconsistencies with Malian requirements for issuing ID documents. Consequently, the Council determined that the Minister correctly prioritized the Belgian findings and refuted the presumption of minority.

In light of the above, the appeal was dismissed.