Bedford County Council v GE (Eritrea) [2017] EWCA Civ 1521

Case No C1/2015/1848[2017] EWCA Civ 1521
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Ms Alexandra Marks QC (sitting as a deputy judge of the High Court)
CO/7378/2011
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 1/11/2017
Before
THE SENIOR PRESIDENTLORD JUSTICE UNDERHILLLADY JUSTICE THIRLWALL
Between
Bedford County CouncilAppellantGE (Eritrea)Respondent
Mr Paul Greatorex (instructed by Bedford Borough Council Legal Services) for AppellantMr Martin Westgate QC & Mr Joshua Dubin (instructed by Scott-Moncrieff & Associates Ltd) for RespondentHearing Hearing date: 27 July 2017
JudgmentSir Ernest Ryder, Senior President:Introduction:
[1]The appellant local authority, Bedford Borough Council, appeals against a decision of the Administrative Court made on 22 May 2015 which assessed the age of the respondent, GE, and quashed two previous age assessments undertaken by the local authority. The decision was the consequence of earlier Court of Appeal proceedings which remitted the question to the High Court. The question of fact was determined by Ms Alexandra Marks sitting as a deputy judge of the High Court on 26 and 27 March 2015.[2]In 24 May 2011 GE entered the UK hidden in a lorry. She was arrested at Dover and immediately claimed asylum. She had a screening interview with the UK Border Agency on the same day. She gave an account of her life that has not substantially altered since.[3]She was born in Eritrea in 1994 and has no siblings. Her father died when she was eight years old. About a year later she moved with her mother and uncle to Sudan. She lived in Sudan for about four years during which time her mother died. When she was twelve she moved to Libya with her uncle. During the next five years she carried out work looking after children and cleaning. When the Libyan war began in 2011 she and her uncle left for Europe. She believes that her uncle’s boat sank on the journey to Italy and she has not seen him since. GE made no asylum claim in Italy but instead travelled from Italy across France to the UK.[4]On the same day as her arrival in the UK GE was fingerprinted but a document from the Immigration Fingerprint Bureau confirms that the fingerprints could not be searched on the Eurodac system because of “poor quality skin”. The same document recorded GE’s date of birth as 1 January 1993 but, as the judge noted, the provenance of this date is unclear. Also on the same day, the UK Border Agency gave GE a letter which this court has not seen but which apparently stated that: “your physical appearance/demeanour very strongly suggests that you are significantly 18 years of age or over”.[5]GE was detained at Yarl’s Wood Immigration Detention Centre. On 3 August 2011, she successfully challenged the Home Office’s attempt to remove her to Italy. An earlier hearing in the Administrative Court led to an order that the Secretary of State be restrained from removing her.[6]The local authority’s first age assessment took place on 24 August 2011. Given the legal principles that are well settled, and to which I shall refer in due course, the judge’s description of the essential elements of that process are important. She found that: a) Three social workers attended the interview: two interviewers and one ‘independent adult’. b) GE had not met the independent adult before the interview and was not made aware of her function. c) Handwritten notes were taken at the interview which the court has had the opportunity to read. d) At the end of the interview GE was not given an opportunity to respond to the conclusions reached by the interviewers. e) The interviewers wrote a written assessment. In that document, the interviewers concluded that GE:
“seems to have provided accurate information about her journey and eventual arrival in the UK, which corresponds with the limited information available to the assessors” and “the assessors are in agreement that there were (sic) sufficient information provided by [GE] to confirm that she is not a young person under the age of 18 years. This is based on the information provided by [GE] – she indicated that she was 16 years old in 2009 when she stopped looking after children. She was 14 years old in 2005 when her mother passed away. She also provided her date of birth in Italy as that of a 20 year old.”
[7]In her judgment, the judge reports GE as subsequently becoming aware of the following important issues which the assessors included in the assessment document but which they did not disclose to her at the time of the assessment. The judge records GE’s contrary evidence. The importance of this is that GE had no opportunity to challenge the conclusions with the assessors themselves: a) A Eurodac match had been made between GE’s fingerprints and those of someone called KD who is apparently an Ethiopian woman born on 1 January 1991. That person had been fingerprinted in Catania on 28 March 2011. GE says that she was not asked about it at interview. When GE was told the name ‘KD’ by her solicitors, she said that she had never heard it before, she had never used it and did not know how to pronounce it. The information relied upon contradicts the document provided by the Immigration Fingerprint Bureau. b) GE had damaged her fingerprints. GE says that she had always cooperated with fingerprinting when asked, although she knew that there were often difficulties with the scanner picking up her fingerprints. GE says she had never been told that anyone thought she had damaged her fingerprints, nor had she done so. c) The assessors reported that GE had told them that she was 14 when her mother died. GE says that she never said this: she was 11 when her mother died. d) The assessors reported that GE was 16 in 2009 when she was looking after children in Libya. Again, GE says she did not tell the interviewers this: she had started looking after the children in her 15th year, and did so for about a year until she left Libya in March 2009.[8]On 30 September and 7 October 2011, there were two further failed attempts to undertake an age assessment as the result of a court order made on 27 September 2011. Two assessors were contracted by the council and the same interpreter was used. A friend of GE acted as the ‘appropriate adult’. The appropriate adult disagreed with the way the interpreter was translating the questions and answers. The interviewers asked the appropriate adult to leave. GE did not want to continue the interview without her. The next interview, set for 7 October 2011, was abandoned due to the lack of an interpreter.[9]A further age assessment took place on 10 October 2011 which is referred to as the ‘second age assessment’. The following features of that assessment can be ascertained from the court’s judgment: a) The assessors were the same as those involved in the previous failed attempts. There was a new appropriate adult with whom GE said she felt comfortable. There was a new interpreter. b) After interview, G was called back into the room to hear the outcome. She was told that she had been assessed as being over 18. She was handed a document which gave the stated reason for the decision as:
‘the assessors had taken all information or lack thereof into consideration’
. GE says that she saw nothing in this reasoning with which she could agree or disagree. When she was asked if there was anything she wanted to say about that, she said ‘no’. c) The written record of the second assessment explains that the assessors considered that GE had been evasive regarding her childhood, her family history and her reasons for coming to the UK. The ‘Outcome of Age Assessment’ form stated:
“Appearance, demeanour and lack of evidence to prove otherwise – professional view is that applicant is above age of 18.”
[10]On 13 October 2011, the local authority emailed GE’s solicitors attaching a decision letter. They decided that GE had been over 18 when she entered the UK. The consequence for GE was that she was not treated as a child in need under the Children Act 1989 so that accommodation was not provided for her. GE commenced judicial review proceedings against the local authority and the Secretary of State for the Home Department which went to the Court of Appeal. The Court of Appeal decided that it was necessary for her age to be determined by the court (reported at [2014] EWCA Civ 1490). That Court remitted the matter to the High Court. It was in this way that the Administrative Court came to make the decision that is the subject of this appeal.

Legal principles:

[11]The relevant legal principles are set out in the Administrative Court’s judgement. There has been no dispute about them. An age assessment must be compliant with the principles set out in R (B) v London Borough of Merton [2003] EWHC 1689 (Admin) – the ‘Merton principles’ – as approved and added to by the decision in FZ v Croydon LBC [2011] EWCA Civ 59. Relevantly, there must be an ‘appropriate adult’ present, ready to intervene where necessary when an age assessment takes place. Further, the person being assessed must be given a reasonable opportunity to respond to anything arising that may be held against them.[12]The local authority, recognising the hurdle that they have to overcome in what is essentially an appeal against a finding of fact, rely upon R (AE) v Croydon LBC [2012] EWCA Civ 547 where the Court of Appeal accepted that the scope for interference in an appeal of this kind is limited but on the facts of that case found that the judge had erred in her analysis of the evidence. On behalf of GE it is submitted that too much store should not be placed on the comparability of decisions that are limited to their facts unless a fundamental methodological failure is relied upon. Where a judge acknowledges the importance of the contemporaneous evidence and written material and undertakes an holistic evaluation, it is difficult to criticise her for preferring the oral evidence that she has heard.

The age determination:

[13]In this case the judge’s age determination is challenged on her assessment of the evidence. That challenge is not supported by a submission that she made an error of law, for example, in determining credibility without reference to the written materials or an existing expert country report. The reason there is no challenge on a methodological basis is that the judge did not fall into that error, she undertook an holistic evaluation on all of the available evidence as she was required to do on the authorities.[14]The challenge is not supported by transcripts of the oral evidence to demonstrate, if it is possible so to demonstrate, that no reasonable judge could have come to the factual conclusions that she did i.e. that the decision on the facts is wrong because it is perverse. Instead, the challenge identifies inconsistencies in the evidence which the local authority submit the judge should have weighed more heavily in the balance to come to the conclusion that GE’s story is unreliable.[15]The judge gave detailed reasons for her conclusion that GE was a child when she entered the UK. Those reasons include: a) not being able to place much weight on the assessor who gave oral evidence because he could not remember the important detail, b) the assessor’s failure to challenge with GE her factual account, c) the consistency of GE’s account, d) the lack of insight, sensitivity and judgment evidenced by some of the opinions held by the social worker leading the assessment, and e) the impact that a very real memory that GE has of the age when she began menstruating on the evidence and the court’s assessment of her and her age. For all these reasons the judge accepted that GE’s date of birth was 27 September 1994.[16]Given the fact that it is not submitted that the judge made an error of law and that her factual determinations were reasoned, it would not normally be appropriate for this court to entertain an appeal which amounts to no more than a disagreement with the judge. In deference to the permission that was granted by the single judge, the court has listened carefully to the submissions of the local authority, the essence of which are that the judge was inconsistent and selective in the material she chose to rely upon. I do not accept that submission. The material to which the judge referred in her judgment demonstrates her reasoning and in the absence of any contrary material, for example in the form of transcripts of evidence, or internal inconsistency that reasoning is patently cogent.[17]I shall set out the judge’s analysis to illustrate why her reasoning is cogent. The factors that she identified include witness credibility, the reliability of GE’s account, the fingerprinting evidence, the evidence about the age of GE when her mother died and when her uncle went missing.[18]The judge assessed GE as a highly credible witness. She seemed to her to be honest and to have attempted to answer questions accurately. The judge noted that her story had remained consistent over the years including as to her date of birth and time in Africa. There was no extraneous evidence of fabrication and the judge took the view that fabrication would have been unlikely. In contrast the judge concluded that the social work assessor was honest but could not remember the details of the age assessment. The judge was unable to attribute much weight to his evidence. The judge took an informed and appropriate line about impressions of credibility drawn from demeanour. She noted that the Chief Immigration Officer and the second interviewer had attributed significant weight to their impression of GE’s appearance and demeanour albeit that in the case of the former, that impression would still have meant that GE was only aged 18 when she entered the UK.[19]The judge was unconvinced of the value of the demeanour evidence, as the insight retrievable from a short interview in strained circumstances is limited. On that point she held that:
“despite the purported expertise of the social worker leading the interview in this case, there seems to me to have been lacking an appropriate level of insight, sensitivity and judgment, as illustrated by events at the abortive September assessment when the same assessors consulted with the UKBA, and then expelled the appropriate adult.”
. She went on to comment that judging age by appearance is very difficult, as young women can vary significantly in how old they look.[20]The consistency of GE’s account factored through into the judge’s assessment of the reliability of it. The judge noted that the assessors at the first age assessment found the respondent to have provided “accurate information”. It is notable that neither the screening interviewer nor the second age assessors had challenged GE’s account which had remained essentially the same.[21]The fingerprinting in Italy raised the question whether GE was truthful in her response in interview that she had not been fingerprinted. The judge did not ignore that inconsistency but concluded after hearing evidence on the point and reading all the relevant documents that GE’s evidence to the effect that she had not known what “fingerprinting” meant was plausible. That was a conclusion to which the judge was entitled to come.[22]As respects GE’s age when her mother died, the judge accepted the possibility that GE had described herself as 14 at the date of her mother’s death in 2005, although the judge thought that this was unclear from the interviewers’ notes. The judge was unsure that GE had understood the question or that the answer had been properly translated. The judge had the benefit of oral evidence and the interview notes. In any event and of more importance to the assessment of all the available evidence on the point, the judge relied upon GE’s witness statement which described her first occurrence of menstruation when she was 14 and which described events in a way consistent with her mother no longer being present.[23]As to the death of GE’s uncle, the judge saw no difficulty in the fact that GE had not referred to her uncle when asked about her immediate family during the screening interview. GE said that when she tried to tell the interviewer about her uncle, she was stopped from doing so. The judge concluded that it was plausible that she mentioned her uncle but the interviewer made no note. Again of some significance, the judge concluded that there was no reason to assume that GE would have known the legal significance of being an unaccompanied minor and there was no opportunity for her to have been coached.[24]Finally, the fact that GE described herself as seventeen when she was just short of seventeen was explicable in accordance with her evidence. The judge accepted GE’s explanation of this, namely that she used to calculate her age as if she were aged one when she was born. Her lack of education in that regard was significant. The judge held that:
“The absence of milestones such as schooling, the lack of family life beyond the age of 11 and cultural differences as well as an impoverished lifestyle may well have meant that birthdays were not much celebrated, and age had little significance for GE.”
[25]The local authority’s submissions focused upon whether that reasoning was sufficient and also whether GE’s failure to mention the circumstances of her arrival and processing in Italy, the history of fingerprinting and the implausibility of her route through Europe when taken together were fatal. The local authority brought a commendable attention to detail in their dissection of the documents and the judge’s record of evidence which is contained in the judgment. They are able to highlight inconsistencies as between the written and oral evidence and inherent implausibilities. That would make for relatively powerful cross examination material which may or may not have been successful if this had been a first instance tribunal concerned to make the findings in issue. However strong a case it might be, this court is not such a tribunal. We have not been given the transcripts of evidence to read the answers given by GE and others to the points that were put in cross examination. We are unable to assess the very issues that the judge carefully reasoned and there is nothing that is fatal to the judge’s findings and reasoning i.e. there is nothing that demonstrates that her conclusions or approach were perverse.[26]Accordingly, on the age assessment question, I have come to the conclusion that the judge was right and I would dismiss the appeal.

Quashing the previous assessments/decisions:

[27]The judge considered and ruled upon the lawfulness of the following public law determinations which she quashed for procedural reasons: a) The first age assessment (24 August 2011). b) The second age assessment (10 October 2011). c) The local authority’s decision as to the respondent’s age (13 October 2011).[28]Although her decision to move to consider questions of lawfulness is challenged, there are at least three bases upon which that was appropriate. The judge was aware that the lawfulness of the relevant decisions would affect other outstanding litigation between the parties. Whether that is still the case is not relevant to its importance at the time. The Court of Appeal had thought it open to the judge to consider these issues when the age assessment was remitted to the High Court and to the extent that permission had not already been granted in respect of the relevant issues, the judge granted it. There was accordingly ample justification in the court dealing with these issues. It was arguably proportionate and necessary for the decisions to be made and no sufficient challenge was put before the court or this court to doubt that permission was at large and the judge had the power to grant it.[29]Counsel for the local authority does not seek to defend the first age assessment. That is wise. As the judge found, it fell far short of the Merton guidelines, for two reasons:(a) the “appropriate adult” (a local authority social worker) was unknown to GE and the role was not explained to her; and(b) the local authority assessors gave GE no opportunity to respond to matters that could be held against her. The first assessment was procedurally unfair and there is no argument other than it had to be quashed.[30]The second age assessment did not comply with the Merton guidelines. Again, GE was given no opportunity to respond to the interviewer’s interpretation of what was said (or not said). The judge’s conclusion cannot be gainsaid:
“To enable GE fairly and properly to respond, she should have been told precisely which of the information she had given, and what lack of detail, had led the assessors to conclude that she was older than claimed.”
. Furthermore, the assessors gave inadequate reasons for the decision they came to as a consequence of the interview.[31]In my judgment, the second age assessment was flawed for six reasons:(i) It did not explain the reasoning behind the conclusion that GE had not given a reasonable account of events.(ii) The assessors complained about GE’s reticence around her early life. This is not borne out by the notes of the interview.(iii) Similarly, the assessors complained about the GE’s reticence about her life in Libya. This is not borne out by the notes.(iv) On the same point, but more generally, the assessors stated that GE had been unwilling to discuss certain matters. This is not reflected in their notes.(v) There was no adequate explanation for the assessors’ decision not to accept GE’s account.(vi) The assessors’ report relied on GE’s appearance and demeanour yet did not give adequate reasons for reaching their conclusions.[32]I agree with the judge on three bases: First, the six reasons that I have extracted from the judge’s reasoning demonstrate that she undertook an holistic review of the evidence and the process. Second, there can be no valid criticism of the findings of fact that are implicit in the judge’s reasoning. Third, the reasoning amply justifies the judge’s conclusion that: “I therefore regard the second age assessment as failing in essential respects to comply with the Merton guidelines. The result is that I find the process was so unfair and the conclusions of that assessment so inadequately reasoned that it was unlawful.”.[33]Although not an essential component of her decision on the second age assessment, I have considerable sympathy for the judge’s additional conclusion that the second age assessors were aware of the previous age assessments and they were the same assessors who had expelled the appropriate adult in controversial circumstances just a few days previously. I would be minded to agree with the judge that the second age assessment was tainted by the unlawfulness of the first age assessment.[34]Accordingly, the judge had ample reason to quash both the first and second age assessments and it necessarily follows that the local authority’s decision based on the latter could not stand and likewise fell to be quashed.[35]For the reasons I have given I would dismiss this appeal.

Lady Justice Thirlwall:

[36]I agree.

Lord Justice Underhill:

[37]I also agree.