GE (Eritrea)), R (on the application of) v Secretary of State for the Home Department & Anor [2015] EWHC 1406 (Admin)

Case No CO/7378/2011[2015] EWHC 1406 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/05/2015
Before
MS ALEXANDRA MARKS QC(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Between
The Queen (on the application of GE (Eritrea))ClaimantSecretary of State for the Home Department1 st DefendantBedford Borough Council2 nd Defendant
Mr Joshua Dubin (instructed by Scott-Moncrieff & Associates LTD)) for ClaimantMr Paul Greatorex (instructed by Bedford Borough Council) for for the Second Defendant for The First Defendant did not appear, and was not representedHearing Hearing dates: 26 and 27 March 2015
JudgmentMs Alexandra Marks QC :INTRODUCTION
[1]This case has a long and complex litigation history which I need not set out here. Suffice to say that this hearing is taking place as a result of the Court of Appeal’s order on 21 November 2014 for a re-trial of the issue of GE’s age.[2]Counsel for each of GE and the Council (the claim against SSHD having been stayed) have helpfully agreed a note of the scope of this hearing. I agree with their conclusion that this court is asked to determine:a. GE’s age; andb. GE’s judicial review challenge to the lawfulness of the Council’s age assessments. BACKGROUND GE’s arrival in United Kingdom, arrest and detention (24 May 2011)

BACKGROUND

[3]On 24 May 2011, GE was arrested at Dover as she emerged from a lorry which she had boarded with others at Calais. GE immediately claimed asylum, telling officials that she was an Eritrean national, born on 27 September 1994. GE said that she had travelled by boat from Libya to Italy, and had then travelled through Italy and France till she reached Calais.[4]GE immediately underwent an asylum screening interview, with an Amharic interpreter providing translation over the telephone.[5]GE was also fingerprinted that day. According to a fax from the UK Border Agency’s Immigration Fingerprint Bureau during the afternoon of 24 May 2011, GE’s fingerprints were of insufficient quality to be searched on the Eurodac system because of “poor quality skin”. The fax stated that a further set of prints would need to be taken in two-three weeks. The fax stated GE’s date of birth as “1/1/93” but the provenance of this date is unclear.[6]The UK Border Agency’s Chief Immigration Officer also handed GE a letter dated 24 May 2011, stating her nationality as Eritrean, her claimed date of birth as “1/1/1994” and that “your physical appearance/demeanour very strongly suggests that you are significantly 18 years of age or over” (sic).[7]Having been assessed as being an adult, GE was immediately detained at Yarl’s Wood Immigration Detention Centre.[8]According to the Detention Review Record (“DTR”) entry for GE on 27 May 2011, “the subject has attempted to conceal his (sic) true identity, and there is strong likelihood of absconding”. The DTR stated GE’s birth date as 1 January 1993 (making her just short of 18 years and 5 months old on arrival in the United Kingdom).[9]Whilst at Yarl’s Wood, GE was befriended by a Nigerian woman who helped her complete a claim form challenging her removal directions to Italy. On 3 August 2011, by order of Mr Justice Supperstone, SSHD was restrained from removing GE from the United Kingdom because GE’s claimed date of birth (27 September 1994) made her 17 years old rather than an adult.[10]Through the Yarl’s Wood Befrienders and the Refugee Council, GE established contact with a firm of solicitors, her current representatives, who wrote to the Council on 18 August 2011 to request an urgent age assessment.

First age assessment (24 August 2011)

[11]On 24 August 2011, without any prior notice to GE or her representatives, three employees from the Council’s Social Services department and a male interpreter arrived at Yarl’s Wood and conducted an assessment of GE’s age.[12]On 16 September 2011, GE brought judicial review proceedings to challenge that age assessment. The Council refused to withdraw its age assessment but by order of Sir Michael Harrison (sitting as a Deputy High Court Judge) on 27 September 2011, the Council was ordered “on 30 September 2011…[to] carry out a further assessment of GE’s age… without any regard to the first age assessment dated 24 August 2011”.

Abortive age assessments (30 September 2011 and 7 October 2011)

[13]On 30 September 2011, two male assessors from The Bain & Dahle Partnership (“BDP”) who had been commissioned by the Council to conduct a further assessment of GE’s age, came to Yarl’s Wood. Due to difficulties between the interpreter and the appropriate adult who also attended the interview, it was abandoned after about 20 minutes.[14]On 7 October, the same two men from BDP came to Yarl’s Wood to conduct an age assessment of GE. On that occasion, the interview did not proceed because no interpreter attended. A further interview was arranged for 10 October 2011. Second age assessment (10 October 2011)[15]The same two male assessors returned to Yarl’s Wood on 10 October 2011 to conduct GE’s age assessment. They were accompanied by a different interpreter and also in attendance was an “appropriate adult” with whom GE says she felt comfortable.[16]On 15 November 2011, GE amended her judicial review proceedings to add challenge of the second age assessment. LEGAL BACKGROUND ON AGE ASSESSMENT OF CHILDREN Age an issue of fact for the Court

LEGAL BACKGROUND ON AGE ASSESSMENT OF CHILDREN

[17]R (A) v London Borough of Croydon [2009] UKSC 8, the Supreme Court held that the question of whether an individual was a child or not was, upon challenge by judicial review, one of fact for the decision of the Court itself. Baroness Hale said at paragraph 27:
“[…the question whether a child is in need requires a number of different value judgements]. But the question whether a person is a "child" is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.”
Lord Hope, in his concurring judgement, said at paragraph 51:
“It seems to me that the question whether or not a person is a child... is a question of fact which must ultimately be decided by the court. There is no denying the difficulties that the social worker is likely to face in carrying out an assessment of the question whether an unaccompanied asylum seeker is or is not under the age of 18. Reliable documentary evidence is almost always lacking in such cases. So the process has to be one of assessment. This involves the application of judgment on a variety of factors...”

No burden of proof

[18]The Supreme Court was silent as to who bears the burden of proof but this issue was determined by the Court of Appeal decision in R (CJ) v Cardiff City Council [2011] EWCA Civ 1590. At paragraph 21,

Lord Justice Pitchford said:

“It seems to me that once the court is invited to make a decision upon jurisdictional fact it can do no more than apply the balance of probability to the issue without resorting to the concept of discharge of a burden of proof.” and at paragraph 23: “Where the issue is whether the claimant is a child for the purposes of the Children Act it seems to me that the application of a legal burden is not the correct approach. There is no hurdle which the claimant must overcome. The court will decide whether, on a balance of probability, the claimant was or was not at the material time a child.”

Court’s general approach to evidence in age assessment cases

[19]In R (AM) v Solihull Metropolitan Borough Council (AAJR) [2012] UKUT 00118 (IAC), delivering the judgement of the Upper Tribunal, Immigration and Asylum Chamber, CMG Ockelton, Vice President said (at paragraph 15):
“In the present case the evidence is wide ranging. It may therefore be appropriate to make some general observations about the impact of evidence of various sorts and from various sources in this type of case. First, we think that almost all evidence of physical characteristics is likely to be of very limited value. That is because, as pointed out by Kenneth Parker J in R (R) v Croydon [2011] EWHC 1473 (Admin) there is no clear relationship between chronological age and physical maturity in respect of most measurable aspects of such maturity.” and at paragraph 19: “…we find it difficult to see that any useful observations of demeanour or social interaction or maturity can be made in the course of a short interview between an individual and a strange adult. There may of course be cultural difficulties in such an interview but there are the ordinary social difficulties as well.” and at paragraph 20: “The asserted expertise of a social worker conducting an interview is not in our judgement sufficient to counteract those difficulties. A person such as a teacher or even a family member, who can point to consistent attitudes, and a number of supporting instances over a considerable period of time, is likely to carry weight that observations made in the artificial surroundings of an interview cannot carry.” and at paragraph 23: “Finally, we should note that, as the task of age assessment is for the court or the Tribunal, it is important that the court or Tribunal be given the material to perform that task. When all the material available has been gathered in, the judicial decision-maker will need to reach a final conclusion on it… In order for that to be done, the judicial decision-maker needs to have the raw evidence. It needs to be told the range of ages to which the evidence appears to point. It needs to be advised as how to select an age within that range…”

Age assessment disputes - “Merton” principles and AS minimum standards

[20]In R (B) v London Borough of Merton [2003] EWHC 1689 (Admin), Mr

Justice Stanley Burnton said (at paragraph 36):

“The assessment of age in borderline cases is a difficult matter, but it is not complex. It is not an issue which requires anything approaching a trial, and judicialisation of the process is in my judgment to be avoided. It is a matter which may be determined informally, provided safeguards of minimum standards of inquiry and of fairness are adhered to.” and at paragraph 37: “It is apparent from the foregoing that, except in clear cases, the decision maker cannot determine age solely on the basis of the appearance of the applicant. In general, the decision maker must seek to elicit the general background of the applicant, including his family circumstances and history, his educational background, and his activities during the previous few years. Ethnic and cultural information may also be important. If there is reason to doubt the applicant's statement as to his age, the decision maker will have to make an assessment of his credibility, and he will have to ask questions designed to test his credibility.”
[21]In R (AS) v Croydon LBC [2011] EWHC 2091 (Admin), HHJ Thornton QC (sitting as a Deputy High Court Judge) said (at paragraph 17):
“The relevant minimum standards to be expected of such assessment interviews were originally set out by Stanley Burnton J in Merton. The relevant standards are now commonly called "Merton compliant" standards and they are used as the starting point for any assessment of the fairness and reliability of a disputed local authority age assessment.” and at paragraph 18: “Beyond the very useful general guidance given in the Merton case, there is no formalised Central Government Guidance as to how local authorities should conduct age assessments...” and at paragraph 19: “The minimum standards that are to be expected of an age assessment are not, therefore, clearly defined and the same standards are not universally adopted or applied. The current appropriate standards for application in age assessment cases were considered by the Court of Appeal in FZ v Croydon LBC [2011] EWCA Civ 59.Taking that decision and the Mertondecision, which was approved in FZ, together, the relevant standards applicable to the defendant's assessments that were undertaken in this case may be summarised as follows: (1) An appropriate adult should accompany the child and should be present during the interview. (2) A full and careful explanation should be given to the child of the nature of the assessment and its purpose and of the role of the assessing social worker. A careful check should be made to ensure that there is full understanding between the child and the interpreter and that the interpreter is skilled in both the language and dialect of the child and has experience of interpreting in the kind of situation created by the age assessment process. (3) The interview should be conducted in a structured, fair, non-adverserial, non-stressful and informal manner and an informal but full note of the questions and answers should be taken by one of those present. (4) The assessors should pay attention to the level of tiredness, trauma, bewilderment and anxiety of the child and his or her ethnicity, culture and customs should be a key focus throughout the assessment. (5) The assessors must take a history from the child. All relevant factors should be taken into account including, but not limited to, physical appearance and behaviour. The objective is to undertake a holistic assessment. (6) Each interview should, if practicable, be conducted by two assessors who should have received appropriate training and experience for conducting age assessment interviews on young and vulnerable children. (7) The assessors should establish as much rapport as possible with the child (a process known as "joining"), should ask open-ended non-leading questions using, as appropriate, circular questioning methods. The assessors should be mindful of the child having been "coached" and that the child may have had to answer questions on relevant topics several times previously thereby unwittingly blurring the possible accuracy of the answers. Giving the child the benefit of the doubt should always be the standard practice. (8) The assessors should give the child a fair and proper opportunity to answer any potentially adverse findings at a stage when an adverse decision is no more than provisional to so as to enable him or her to provide any appropriate explanation or additional facts which might counter or modify such findings. (9) The conclusions reached by the assessors should be explained with reasons which, although they may be brief, should explain the basis of the assessment and any significant adverse credibility or factual finding. (10) The reasons should be internally consistent and should not exhibit any obvious error or inadequate explanation for not accepting any apparently credible and consistent answers of the child.” (1) An appropriate adult should accompany the child and should be present during the interview. (2) A full and careful explanation should be given to the child of the nature of the assessment and its purpose and of the role of the assessing social worker. A careful check should be made to ensure that there is full understanding between the child and the interpreter and that the interpreter is skilled in both the language and dialect of the child and has experience of interpreting in the kind of situation created by the age assessment process. (3) The interview should be conducted in a structured, fair, non-adverserial, non-stressful and informal manner and an informal but full note of the questions and answers should be taken by one of those present. (4) The assessors should pay attention to the level of tiredness, trauma, bewilderment and anxiety of the child and his or her ethnicity, culture and customs should be a key focus throughout the assessment. (5) The assessors must take a history from the child. All relevant factors should be taken into account including, but not limited to, physical appearance and behaviour. The objective is to undertake a holistic assessment. (6) Each interview should, if practicable, be conducted by two assessors who should have received appropriate training and experience for conducting age assessment interviews on young and vulnerable children. (7) The assessors should establish as much rapport as possible with the child (a process known as "joining"), should ask open-ended non-leading questions using, as appropriate, circular questioning methods. The assessors should be mindful of the child having been "coached" and that the child may have had to answer questions on relevant topics several times previously thereby unwittingly blurring the possible accuracy of the answers. Giving the child the benefit of the doubt should always be the standard practice. (8) The assessors should give the child a fair and proper opportunity to answer any potentially adverse findings at a stage when an adverse decision is no more than provisional to so as to enable him or her to provide any appropriate explanation or additional facts which might counter or modify such findings. (9) The conclusions reached by the assessors should be explained with reasons which, although they may be brief, should explain the basis of the assessment and any significant adverse credibility or factual finding. (10) The reasons should be internally consistent and should not exhibit any obvious error or inadequate explanation for not accepting any apparently credible and consistent answers of the child.”

Role of appropriate adult

[22]In R (MW) v Croydon LBC CO/10832/2011, Upper Tribunal Judge Southern giving judgment of the Upper Tribunal (Immigration and Asylum Chamber) said at paragraphs 57 and 58 (about the role of the appropriate adult):
“57. Ms Sylejmani told us that she and her colleagues: “…have had a long standing dispute with Croydon because they do not accept our role, they insist on intimating that our role should be as independent observer. We are asked many times not to pass comment or intervene, just to observe...” 58. That, it seems to us, is to fundamentally misunderstand the role of an appropriate adult at such an interview. Such a person should be alert to any problems that may arise and should not hesitate to intervene if it was felt necessary. This does not mean, of course, the appropriate adult is there to give advice on how to answer questions.” “…have had a long standing dispute with Croydon because they do not accept our role, they insist on intimating that our role should be as independent observer. We are asked many times not to pass comment or intervene, just to observe...”

Opportunity to respond

[23]Later in the judgment in MW, at paragraph 63 (about the structure of the age assessment process) the Tribunal says:
“63. This procedure raises concerns because MW had no opportunity to respond to anything arising that might be held against him, even though both social workers recognise that for the process to be “Merton compliant” that is an essential requirement.”
FACTS Screening interview

FACTS

[24]GE told the UK Border Agency at her screening interview on arrival in Dover on 24 May 2011: a) her date of birth is 27 September 1994 (though her attributed date of birth recorded on the interview form is 1 January 1993 and there is a manuscript note “age assessed as over 18”); b) GE is Eritrean and a Pentecostal Christian; c) when she was 8 years old, she left Eritrea with her mother and uncle, to live in Sudan; d) she never went to school in Sudan and when her mother died after about four years, her uncle took her to live in Libya; e) she never went to school in Libya but had worked as a domestic helper to a Libyan family. After five years in Libya, she travelled by boat from Tripoli to Italy where she was met by the Italian Red Cross in Lampedusa on 28 March 2011; f) she had no passport, ID card or any other documentation; g) she had not been fingerprinted nor made any asylum claim in the UK or any other country; h) she had no family and was unable to practise her faith in her country so she decided to come to the United Kingdom; i) she gave the names and dates of both her father and her mother, who had died in 2001 and 2005 respectively. She had no brothers or sisters; j) at Lampedusa, she was taken first to a camp and then “by a large boat” to somewhere “a long way from Lampedusa” but she didn’t know what the place was called; and k) a week later, she arrived in Rome and stayed there for five days before leaving for Calais by train to try to get to the United Kingdom. First age assessment (24 August 2011)[25]During the first age assessment interview on 24 August 2011, GE’s interviewers recorded that: a) she is Eritrean; b) her date of birth was 27 January 1994, making her 17 years old at the date of interview; c) her father died when she was 8 years old, and her mother died in 2005. The report states “Her mother passed away from a heart condition when she was 14 years old in 2005. (GE changed this information later during the assessment, claiming she was 11 years old when her mother passed away in 2005)”. In the interviewers’ manuscript notes, it is first recorded “2005 – mother died. (14 years old)”, but later in the notes that “mother passed away when I was11 (2005)”, and later still “11 years - mother died - heart condition”; d) about a year after GE’s father died, she moved to Sudan with her mother and uncle. She was about 8 years old then. They lived in Sudan for 4 years, and when she was about 12 years old, she moved to Libya with her uncle; e) her first menstruation was at 13 years old; f) GE and her uncle lived in Libya for about 5 years until the war started there, earlier in 2011; g) whilst in Libya, GE did some child care work. She was 15 years old when she started doing this, and looked after children for a year. She finished this in 2009, after which she did some cleaning jobs; h) on leaving Libya, after about four days on the boat, she arrived at Lampedusa. Her uncle was in a different boat (women and children were given priority) but he never arrived. She heard after a few days that his boat had sunk; i) from Lampedusa, the Italian authorities took those from the boat to Catania (in Sicily); j) her fingerprints were taken in Italy but she did not know why, and did not make an asylum claim in Italy; k) she had escaped from the camp at Catania with a few others, and stayed outside the bus station there for about a week. A group of drunken white people “attempted to come close” and though they ran away, her good friend (MT) was caught and “they did what they did to her”; and l) shocked and frustrated by this, they went to Rome after advice from a Sudanese man they had met. They stayed in Rome for about a week before travelling through France to Calais.[26]In the written assessment, the assessors wrote:
“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 later, in the conclusion of assessment: “..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.”
[27]During the interview, GE says, she was asked questions by all three social workers who attended, one of whom she later learned was supposedly acting as an “independent adult” though nobody explained this to her at the time, nor had she ever met or spoken to any of the social workers before.[28]At the end of the two hour interview, GE says she was handed a sheet which was not translated for her. She was not told that she had an opportunity to clarify what had been recorded at the interview, nor was she told that she could disagree with the assessors’ decision.[29]On 26 August 2011, GE received via her solicitors the Council’s written age assessment. A few days later, she went through the document with her solicitors. GE learnt that: a) a Eurodac match had been made between her fingerprints and those of someone called Kedest Dege (apparently an Ethiopian woman, date of birth 1 January 1991). That person had been fingerprinted in Catania on 28 March 2011. This information is recorded in the written age assessment but GE says that she was not asked about it at interview. When GE was told the name “Kedest Dege” by her solicitors, she had never heard it before, nor had she ever gone by that name herself or even know how to pronounce it; b) the written assessment records that 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 Council’s assessors had written in the assessment 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 written assessment stated 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 2011.[30]On 30 August 2011, the Council’s social workers returned to see GE. She had not been told that they were coming. GE’s solicitor had told her that she should have had an opportunity to correct or clarify anything that was not right with the assessment, and to disagree with the decision. However, GE says that when she attempted to raise the above matters with the Council’s assessors, they refused to let her do so and asked her to sign some papers. GE says that she refused to do so because of inaccuracies in the written assessment. The Council’s Case Note Report dated 30 August 2011 states “Report was read out, GE wanted to comment on some areas but worker stopped her from doing so.” GE says that the document she was asked to sign showed deleted in manuscript (and initialled by one of the two social workers) the printed words, “I was provided with the opportunity to respond to the contents of the assessment.” Abortive age assessments (30 September 2011 and 7 October 2011)[31]GE’s solicitors had arranged for Tsega Abate, a Yarl’s Wood Befriender, an Ethiopian woman who speaks Amharic and had visited GE several times in detention, to act as the appropriate adult at GE’s age assessment interview on 30 September 2011.[32]The male interpreter who attended was the same interpreter as had attended the first age assessment.[33]Once the interview was underway, Ms Abate interrupted the interpreter a few times because she was not happy with the way he was translating the interviewers’ questions and GE’s answers. GE says she did not fully understand what was going on but remembers the interviewers becoming annoyed, and they left the room to speak to somebody outside.[34]GE said that when the interviewers returned, they asked Ms Abate to leave the room so they could speak to her outside. GE says they would not allow Ms Abate to return so she spoke to GE through the window and explained that she had to leave. GE says that, when the interviewers returned, she was asked if she was willing to continue the interview without Ms Abate there. GE says that she told them she was not: she did not feel comfortable after what Ms Abate had said about the interpreter, and she also felt uncomfortable about being in a room with three men by herself.[35]BDP’s notes record “…We consulted with a representative from the UKBA who was attending the IDC and their view supported our own which was that Tsega would be asked to not take any further part in the interview and that [GE] would be offered the opportunity [if she so desired] to continue the interview without Tsega’s presence… We communicated our decision to Tsega and she left the unit. [GE] was asked if she was prepared to continue the assessment without Tsega’s presence… on both occasions she declined to continue.”[36]On 7 October 2011, a further attempt at an age assessment interview, again attended by the same two individuals from BDP, was abandoned due to the lack of an interpreter. Second age assessment (10 October 2011)[37]On 10 October 2011, a new interpreter and a different appropriate adult but again the same two interviewers from BDP attended Yarl’s Wood. The lead interviewer - Mr Joe Elwidai - was “Merton Compliant trained”; the second interviewer was a qualified social worker.[38]During the interview, the interviewers’ handwritten notes recorded: a) GE’s date of birth was 27.09.1994 and she was now aged 17; b) GE knew her age because she was born in 1994 and was told by her uncle about the calendar (she said the Eritrean calendar is the same as the British one); c) recapping GE’s answers after about an hour, the assessors repeated back to GE their understanding that she was born in Eritrea, left Eritrea aged 2 for Ethiopia from which she was deported after about 4 years aged 6; she then went to Sudan aged 8 where she stayed for about 4 years before going to Libya with her uncle aged 12; d) during her journey from Libya to the United Kingdom, GE’s close friend, MT, was raped in Rome, and a Sudanese man helped them with the fare to travel to Paris, and then on to Calais where they slept in the forest for around 28 days before boarding a container lorry travelling to England.[39]After nearly three hours, the interview ended at 12:24pm. At 12:50pm GE was invited back into the interview room to hear the outcome. She was told that she was assessed as older than the age she claimed. GE says she was handed a two page document. This stated the reason for the social workers’ decision as “TAKEN (SIC) ALL INFORMATION OR LACK OFF (SIC) DURING THIS ASSESSMENT IN TO (SIC) CONSIDERATION”. GE says she had no idea from this what the assessors had decided or why: the document did not state what age they thought she was. She therefore saw nothing in the document she had been given with which she could agree or disagree. On being asked if there was anything she wanted to say, GE said no.[40]GE says that she was later told by her solicitors that the assessors had decided she was over 21 but the assessors did not tell her this themselves, nor why they thought so. GE says that she would have told them that she was not over 21: she says she was 17 at the date of the assessment, and knows both her date of birth and her age.[41]GE says that she has since gone through the written assessment with her solicitors. The assessors state that she was vague and evasive about her life in Eritrea. However, GE says that she was very young then. She remembered where she had lived, playing with children nearby and living with her mother and father but there was nothing much more she could say about her life in Eritrea. Had the interviewers wished to know more, they could have asked her for more information: she had answered all the questions she had been asked.[42]The conclusion to the typewritten assessment states: a) GE was “unable or unwilling to discuss parts of her childhood and certain parts she avoided sharing further information.” b) GE “avoided or refused to share certain aspects of her life and childhood and in my professionals (sic) opinion this is due to wishing to be assessed as a child. I do not believe [GE] has given a reasonable account of events and has not been open in disclosing her full family history, her educational history or her reasons to (sic) coming to the UK.” c) “When the outcome of this assessment was shared with [GE], she appeared a little phased… and she asked what we have based our opinion on...”[43]The assessors concluded that GE was older than claimed, and their written report estimated her date of birth as 27 September 1990.[44]The Outcome of Age Assessment form was signed by the two interviewers and countersigned by the Council’s Head of Children’s Services on 13 October 2011. It stated “Appearance, demeanour and lack of evidence to prove otherwise – professional view is that applicant is above age of 18”. The oral evidence GE’s evidence

The oral evidence

[45]At the hearing, GE gave oral evidence, on oath, in Amharic through an interpreter. She adopted as her evidence in chief her three witness statements (dated respectively 26 January 2012, 20 March 2013 and 20 March 2015).[46]During cross-examination: a) GE told the court that she now speaks and reads English a little. Her witness statements - in English - were the result of interviews with her solicitors during which their questions and her answers were translated to and from Amharic; b) during her screening interview, she had told the interviewer that she knew her date of birth was 27 September 1994 because her mother and her uncle had told her so; c) when examined at the Healthcare Centre at Yarl’s Wood on her day of arrival there (25 May 2011), the medical record states “Nil significant health issues apart from eczema on back of neck and arms. Appears very dry, itchy and scally (sic). Has had it since 3/12”. The GP’s record the next day (26 May 2011) also records “eczema on arms and neck” for which aqueous cream was given. Nearly two months later, on 20 July 2011, GE’s medical record again refers to her scaly eczema. GE said that she had suffered eczema for “a long time”, it was “itching me” which she gestured in court by scratching her arms and wrists; d) GE had been fingerprinted on arrival in the United Kingdom but did not know whether her fingerprints could be read. However, she was fingerprinted again about a month later; e) GE accepts now that she was fingerprinted in Catania in March 2011, but she could not remember the exact date. She remembers putting her fingers on a screen and, in court, she gestured by splaying her fingers widely. GE denied that she had lied when she had told the screening interviewer on 24 May 2011 that she had not been fingerprinted in Italy. She explained that she did not know at that time what “fingerprinting” meant, and she had not asked because she was very tired, and did not know what to ask or what to do; f) GE denied that she had damaged her fingerprints, or that she wished to avoid detection. She did not know why her first fingerprints in the UK could not be read; g) GE said she did not understand Counsel’s proposition that her fingerprints enabled her to be matched with someone who had claimed asylum in Italy; h) GE accepted that in her application for Judicial Review dated 3 August 2011 (completed “in prison” - Yarl’s Wood - by a woman “like my mum” who knew how to write it for her) the form stated in three places, “I am only seventeen years old”; i) GE remembered the woman in prison, but not meeting anybody from the organisation Medical Justice who had completed a referral form on 1 August 2011. Medical Justice’s form records, “I suffer from post traumatic stress after seeing my friend being raped… [when] we were in Catania”. That form also twice records GE’s age as 17; j) GE denied that she had lied at her screening interview when saying that she did not know the name of the place where she was between Lampedusa and Rome. She knows now that it was Catania but, in re-examination, said that she only learnt the name of the place whilst she was travelling with others through France. Even then, she had not grasped the name properly by the time she was interviewed by officials in the United Kingdom; k) GE denied that she had mentioned her uncle only for the first time in August 2011 when interviewed by Medical Justice. She said that she had mentioned him to the screening interviewer in May 2011. At that interview, she had said that her mum and dad had died, and that she did not know where her uncle was. She had been stopped from saying more about her uncle because they were interested in family in the UK; l) As regards the first age assessment – on 24 August 2011 – GE denied that she had “changed” information during the age assessment interview. She told the court that the truth is that she was 11 when her mother passed away in 2005 and that is what she had told the interviewers. GE denied that she had ever said that she was 14 when her mother died; m) GE explained that she knew she was 11 when her mother died because her last birthday before her mother got sick was when she was 10 years old and her mother gave her gold earrings; n) GE said that, during the second age assessment on 10 October 2011, she could not remember whether she had corrected any errors in the report. That report records that she had said her friend was raped in Rome. Counsel pointed out she had told Medical Justice in August 2011 that her friend had been raped in Catania. GE said in reply that she thinks she said Rome, not Catania; o) Counsel asked GE if, in order to be released from Yarl’s Wood and provided accommodation by the Council, she “wanted to be treated as a child”. GE did not understand the question; p) Counsel pointed out to GE that she claimed to be “only 17” in August 2011 when she completed her Judicial Review application and her interview with Medical Justice in August 2011. However, if GE was born in September 1994 as she claimed, in fact she would not yet have been 17 years old in August 2011. GE accepted that was correct. She said that she now knows that age is counted from zero at birth, rather than one as she had previously thought. She said that she is not educated, had never attended school and did not know about the calendar. She agreed with Counsel that it was “a big shock” to discover when she came to this country that she had been miscalculating her age. During re-examination, however, GE stated that she had never told anybody her date of birth incorrectly.

The Council’s evidence

[47]Mr Joe Elwidai also gave evidence under oath. He told the Court that he is a qualified social worker, and an employee of BDP which undertakes specialist assessments, including “Merton compliant” age assessments as agents for local authorities.[48]Mr Elwidai was the lead interviewer for the two abortive assessment interviews with GE and her second age assessment on 10 October 2011.[49]On all three occasions, Mr Elwidai was accompanied by George O’Brien, a social worker and colleague employed by BDP.[50]Mr Elwidai testified that he had conducted “countless” age assessments, and was “Merton compliant” trained.[51]During cross-examination, Mr Elwidai testified that: a) GE’s age assessment interview had taken place so long ago that although he could remember conducting it, he could not recall much detail; b) He was unable to quantify the number of age assessment interviews he had conducted saying, “We do quite a lot” and that he had been lead assessor in “most of them probably”; c) At the date of GE’s age assessment, Mr Elwidai had finished his training as a social worker, but was not yet registered as such. He was registered a few days later. However, Mr Elwidai had undertaken “Merton compliant” training in 2007, and more training since then through the Refugee Council and other ongoing training; d) Mr Elwidai said that all his working career, he has worked “with children in various stages and capacities” and therefore felt it was appropriate for him rather than his colleague, Mr O’Brien, a qualified social worker, to lead GE’s assessment interview saying that “in the field…more weight is put on experience than qualifications”. Mr Elwidai also testified that he had worked closely with asylum seekers; e) when asked whether, at the first abortive assessment interview (in September 2011), he had challenged the interpreter after Ms Abate had expressed her concerns about his mistranslation, Mr Elwidai said that the interpreter had complained that he felt Ms Abate was “putting words in GE’s mouth”. Mr Elwidai could not recall whether he had sought Ms Abate’s views about this because the interview was so long ago but said that, “I know whatever process I undertook would have been fair”; f) Mr Elwidai denied that he had failed to get to the bottom of Ms Abate’s challenge but could not recall what he had done to resolve the issue: overall, however, he had concluded that “regardless of who was right”, it was “not possible to undertake the interview that day” so it had to be aborted; g) having seen Ms Abate’s written statement, Mr Elwidai denied that, as she claimed, his behaviour had been “quite aggressive” or that he could have been perceived as aggressive because “I know that’s not how I am”; he also denied Ms Abate’s claim that he could have come across as hostile, or have appeared so to GE, because “I am not a hostile person”; h) Mr Elwidai accepted that, at the time he conducted GE’s age assessment interview, he knew that on two other occasions she had been found to be over 18. He also stated that even if he knew that the Council’s decision was being challenged by judicial review proceedings (which he could not recall), it would not have changed anything in his process and that he would still conduct a fair process and undertake an independent assessment; i) Mr Elwidai accepted that he and his colleague had reached their conclusion on GE’s age within around 20 minutes of the end of the interview. He also accepted that GE had been given a pro forma, stating that in the assessors’ opinion, she was considered to be older than the age claimed. He denied that GE had not been given an opportunity to respond to specific reasons for the assessors’ conclusion, saying “Throughout the assessment, she would have been given opportunity to explain and elaborate in any way she wished”; j) as for the assessors’ finding in the typed report that GE had “avoided or refused to share certain aspects”, he could not recall whether this had been put to GE during the interview: the fact it was not recorded in his written notes nor those of his colleague did not mean that it had not been put to her; k) as for GE’s account of her life until leaving Libya, Mr Elwidai said that he “really could not say” whether her account was consistent with her date of birth being September 1994. Having re-read the assessment before coming into court, he said there was “nothing in there I would change: I believe the assessment was conducted fairly and with accuracy and to the best of my knowledge the conclusion is correct. I stand by it and there is nothing different I would do today”; and l) on further questioning by Mr Dubin, Mr Elwidai said that he and his colleague had taken all information into consideration when reaching their conclusion, and denied that GE’s appearance and demeanour had counted for more than the chronology of her account. Mr Elwidai denied that this was the effect of the Outcome of Assessment form. He explained that the form did not list everything but he “just put in some areas we took into consideration”. DISCUSSION AND DECISION Approach to determination of GE’s age

DISCUSSION AND DECISION

[52]There is little documentary evidence or other independent evidence in this case, so I have to apply my judgment to a variety of factors and decide, on a balance of probability, GE’s age at the material time.

General credibility of the witnesses

[53]The “raw evidence” available to me obviously includes oral testimony from GE herself, and from Mr Elwidai. My judgment of their general credibility is based not just on my observation of the way in which they gave evidence from the witness box but also their written words. In the case of GE, her documentation was actually written by others (albeit in some cases signed by her) and includes her witness statements, her accounts at interview and her applications and statements of facts in these proceedings. In the case of Mr Elwidai, his written documents comprise his handwritten notes of the interview, his pro forma decision, typewritten report and outcome of age assessment form.[54]I found GE a highly credible witness. She was somewhat reserved, perhaps understandably so given the formality of the court setting. She came across as straightforward, honestly attempting to answer truthfully the questions put to her, saying when she did not understand the question, or when she wanted it repeated or did not know the answer. Her gestures during oral evidence were, Mr Dubin submits, “hallmarks of truth”. At times, she appeared genuinely bemused by Mr Greatorex’s cross-examination: her puzzlement at his question “You wanted to be treated as a child, didn’t you?”, would seem a natural reaction from any young woman. Issues that can arise from translation were illustrated too: in one exchange, Mr Greatorex leapt on GE’s denial of 27 September 1994 as her birthdate until the interpreter intervened to apologise for having mistranslated the question. Overall, I felt able to attribute very considerable weight to GE’s oral evidence. I found her accounts, repeated on numerous occasions since these proceedings began in August 2011, largely consistent over that period of years.[55]Mr Elwidai came across as an honest witness, conscientiously trying to do his job and to assist the court. However, I found his evidence somewhat vague and unhelpful as, by his own admission, he had little recollection of the specific details of GE’s case. This was unsurprising given Mr Elwidai’s evidence that he has conducted “lots” of age assessments, perhaps rendering unmemorable GE’s case some 3¾ years ago. Mr Elwidai had no witness statement from which to refresh his memory so instead had to rely on his recall, prompted only by various documents he had written at the time. Much of Mr Elwidai’s evidence was, perhaps as a result, couched in general terms. Despite reminders that he should answer Counsel’s questions by reference to what he himself had done in GE’s particular case, he repeatedly slipped into the first person plural (for example, “We do a lot of age assessments”; “We conduct independent assessments”; “I believe we would have shared the outcome with GE”); told the court what he would have done (“Whatever process I undertook would have been fair”; “I probably would have tried to get to the bottom of allegations of mistranslation”) rather than specifically describing what he actually did; and he made general assertions (“I am not a hostile person”; and on being asked about these judicial review proceedings, “that doesn’t change anything in my process because I still conduct a fair process”). Overall, I felt unable to attribute much weight to Mr Elwidai’s oral evidence.

Credibility of GE’s account

[56]As regards GE’s chronology, it is striking that the assessors at the first age assessment found GE to have provided “accurate information” at least about her journey and eventual arrival in the United Kingdom. I return later to their reasons for finding she was not under the age of 18.[57]It is also notable that neither the screening interviewer, nor the second age assessors, challenged any specific aspects of GE’s chronology or account. I set out below the challenges to GE’s account which have been pursued at this hearing.

GE’s fingerprinting in Italy

[58]Mr Greatorex makes much of GE’s denial during her screening interview – and lack of recollection in her Statement of Facts a few months later – that she was fingerprinted in Italy, yet she now admits it. I do not accept Mr Greatorex’s submission that this is significant. I find plausible GE’s evidence that, at the time she was asked about fingerprinting at her screening interview, she did not know what “fingerprinting” was – and after the journey she had just made, that she was tired and did not know what to do. I also find plausible Mr Dubin’s explanation that reference in GE’s witness statement to fingerprinting soon after her arrival in Italy was her solicitors’ interpretation of her description of placing her splayed fingers on a screen.[59]Documentation at the point of GE’s entry into the United Kingdom provides evidence that GE’s fingerprints were unreadable because of “poor skin”, supported by contemporaneous medical records which showed GE had very dry, scaly eczema at that time. No evidence has been produced in support of repeated assertions in UKBA’s monthly detention record and in the first age assessment report that GE had deliberately damaged her fingerprints to conceal her identity. I therefore attach no weight to this assertion, and do not accept any inference that GE was evasive or deceitful about her fingerprints or tried to hide her true identity.[60]Reliance was placed both by SSHD and the first age assessors on the Eurodac match between GE’s readable fingerprints obtained in June 2011, and those taken in Catania in March 2011, apparently from a woman called Kedest Dege. It was not argued before me that such a match means that GE is Kedest Dege. Even Mr Greatorex suggested that there could possibly have been some kind of error. Kedest Dege is apparently recorded as being Ethiopian (yet GE’s Eritrean nationality has never been challenged). It may be coincidence but as Ms Dege’s date of birth is stated as 1 January 1991, it may have been an attributed or estimated age, rather than a claimed or documented date of birth. GE described in her witness statement being taken from Lampedusa, where she had arrived in a small boat with 350 others, in “a big ship” to Catania. There, she queued up with other women in a large hall before being taken to a room to place her fingers on a screen. To me, this paints a picture of an environment in which one individual’s personal data might readily have been confused with another’s.[61]I do not find alleged inconsistencies in GE’s account about fingerprinting, or the conclusions drawn as a result of the Eurodac match, damage GE’s credibility or undermine her overall account. To the extent that the first age assessors and the Council drew support from the Eurodac match, I find their conclusions about GE’s age correspondingly weakened.

GE’s age when her mother died

[62]Mr Greatorex places weight on the first age assessment’s record that GE was 14 when her mother died in 2005, and that she “later changed her account”. Mr Dubin points out there is no evidence that GE actually said that she was 14, and she was denied the opportunity to correct any errors in the first age assessment report.[63]I believe this solitary reference to GE being 14 when her mother died is an error. Even if GE said this once - which it is unclear from the interviewers’ manuscript notes that she did - GE may have misunderstood the question, or perhaps her answer was mistranslated. Even a trusted and reliable interpreter can make mistakes, as we saw first hand in court. However, the accuracy of translation by the particular interpreter at the first age assessment was expressly challenged yet unresolved (at the abortive September age assessment). Moreover, GE had no opportunity to rectify the interviewers’ perception of what she had said. I find additional support for the proposition that GE’s mother was not still alive when GE was 14 from GE’s description of her menarche. In her witness statement, GE says she was 13, did not know what was happening because nobody had told her about it, was scared when she saw that her dress was “dirty”, and that her uncle arranged for a woman to explain what was happening to her. This account appears to me not only plausible and therefore credible, but also consistent with her account that, at the time of her menarche, she was not living with her mother but with her uncle in Libya after her mother’s death.[64]I therefore give little weight to the alleged inconsistency about GE’s age when her mother died, or to the suggestion that GE was 14 years old when her mother died in 2005. To the extent the first age assessors relied on this information, I find their conclusions about GE’s age weakened accordingly.

Reference to GE’s uncle

[65]I do not accept Mr Greatorex’s argument that the absence of any record of GE mentioning her uncle during her screening interview is significant and damages her credibility. The screening interview form refers to “immediate family”, and GE testified that the interviewer was interested in family in the United Kingdom. She says that when she tried to tell the interviewer about her uncle, she was stopped from doing so. That GE’s uncle was not noted on the form does not mean she did not mention him. I think it plausible that GE mentioned her uncle but the interviewer thought him irrelevant so made no note.[66]I wholly reject Mr Greatorex’s suggestion that GE concealed her uncle’s existence so that she might be treated as an unaccompanied minor. First, there is no evidence that GE’s uncle accompanied GE beyond Libya. GE says that she does not know where her uncle is, but believes the boat in which he was travelling may have sunk before reaching Italy. Secondly, I think it unrealistic to suppose that GE had sufficient knowledge and understanding of legal matters to appreciate the relevance of being a minor, let alone an unaccompanied one. It is difficult to see that there was any realistic opportunity during GE’s perilous journey to the United Kingdom, or before then, for GE to have been “coached” or provided with a fabricated back-story so that she could exploit this country’s immigration and asylum laws.

Consistency of accounts of age

[67]Mr Greatorex makes much of GE’s judicial review application, and her interview with Medical Justice, stating that she was “only 17 years old” when – if her birthdate was 27 September 1994 - she was then a few weeks short of her 17th birthday.[68]I do not find “exceptionally difficult to believe”, as Mr Greatorex submits, GE’s explanation that she used to calculate her age as if she were aged one when born. GE is essentially uneducated, her early life was severely disrupted, moving country no fewer than four times and losing both her parents before the age of twelve, after which she had no family apart from her uncle. 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.[69]I find it unsurprising that, when GE recounted her story in the United Kingdom, bearing in mind her virtual illiteracy and inability to make records of her own or keep track of dates, coupled with inevitable difficulties of translation, GE was recorded as saying that she was 17 when she may have been a few weeks short of her 17th birthday.[70]Far from regarding GE’s evidence about her age as entirely unreliable, I find that she has consistently maintained that her date of birth is 27 September 1994. That she may have slightly miscalculated her age in a particular year, or at a particular stage of her life, does not, to my mind, render her evidence as to her age unreliable or unbelievable.

Reliance on physical appearance and demeanour

[71]On entry to the United Kingdom, the Chief Immigration Officer assessed GE’s age – based solely on physical appearance and demeanour – as “significantly” older than 18. Yet the officer attributed to GE a birthdate of 1 January 1993, making her barely 18 years and 5 months. In my view, such an age could scarcely be categorised as “significantly” older than 18.[72]The second age assessment report also relies heavily on GE’s physical appearance and demeanour: the Outcome of Age Assessment form’s summary of reasons to the Council refers only to this, and not to any inconsistencies in GE’s account nor any adverse findings of fact or credibility.[73]Like the Tribunal in AM v Solihull, I am unconvinced of the value of observations of demeanour made during a short interview between an individual and strange adults. People can behave in a formal interview in a way that is very different from their normal behaviour, perhaps because they are nervous, afraid, intimidated or simply want the experience to end. 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. In my view, it would normally be unsafe to reach an age assessment largely based on an interviewee’s behaviour (including a purported reluctance to share information) but particularly so in this case.[74]The same applies to physical appearance. The Merton guidelines (as refined by FZ, and summarised in AS) make clear that assessors should take a history from the interviewee, and make an holistic assessment, taking all relevant factors into account. Physical appearance should never form a major reason for an age assessment yet GE’s appearance seems to have weighed heavily with the second age assessors, as evidenced by the summary of reasons they gave the Council.[75]Mr Greatorex concedes the court’s difficulty in making its own judgment of GE’s age on the basis of her physical appearance and demeanour now that she is, by any reckoning, at least 20 years old. I am no expert in this area, but having two daughters myself who are now aged 20 and 22, I have experienced considerable recent exposure to young women of this age group. However, that exposure has revealed to me the wide range of maturity, appearance and demeanour which applies even to a homogenous group of young women, let alone those from hugely different backgrounds and cultures, and dramatically different experiences of life and trauma. Any assessment that I could make of GE’s age on the basis of her physical appearance and demeanour would therefore be no more than a guess – and that has no place in a fact-finding exercise. However, for what it is worth, nothing I have personally observed of GE’s appearance and demeanour during a day and a half in court casts doubt on her claim to be now 20 years old, and thus under the age of 18 at the date of her arrival in the United Kingdom.

Quality of evidence

[76]That GE’s case relies “entirely on her say-so”, as Mr Greatorex submits, rather than documentary or other evidence to support her case, seems to me an inevitable feature of this kind of case, and I do not hold it against her.[77]GE’s various accounts over the years – during her screening interview, her age assessment interviews, her witness statements and her oral evidence to this court – I find to have been largely consistent. For the reasons I have given, I am untroubled by supposed inconsistencies about fingerprinting, her mother’s death, and her uncle. I am similarly untroubled by other minor inconsistencies in her accounts such as the place where her friend was raped (was it Catania or Rome?); whether she was 15 when she started looking after children in Libya, or when she finished a year later; whether she knew the name “Catania” or not. It seems to me entirely natural for GE to have forgotten, or become confused about, some of these details over the course of the years that she has had to repeat her life story.[78]I also reject Mr Greatorex’s submission that “all the other evidence” is against GE, and that particular weight should be given to contemporaneous documentation at the time of GE’s entry to the country nearly four years ago. For reasons I shall return to later, to the extent that such documentation reflects the writer’s opinion of GE’s age, I do not attribute much weight to it. In any case, those opinions range from 18-20, to 21+, demonstrating their imprecision and unreliability.[79]Mr Greatorex suggests that GE has deliberately concealed elements of her account, and lied about her age, because she seeks to take advantage of the preferential treatment of children in this country. This implies a degree of deviousness, deception, and manipulation completely at odds with the impression I formed of GE in court. I do not understand when or how GE - an uneducated orphan, suddenly expelled from Libya after years of moving from country to country - could plausibly have acquired the knowledge and understanding of matters such as fingerprinting, Eurodac, immigration procedures, asylum, and protection of children in Europe necessary to tailor her account as is being suggested.[80]On the contrary, I find GE’s evidence not only credible but also broadly consistent in her accounts of her life in Africa and as to her date of birth to various different professionals, the Chief Immigration Officer and indeed this court. Her explanation for having known her date of birth is plausible and GE’s explanation of her chronological life is both cogent and positively consistent with her claimed chronological age. It is significant that neither age assessment specifically challenges GE’s chronology and, in those circumstances, it seems to me that I can properly place considerable weight on her chronology.

JURISDICTIONAL FINDING OF FACT

[81]Overall, taking all the evidence into account and making an holistic assessment, I am satisfied that GE’s account and her chronology are true, and that her date of birth - as she has consistently maintained - is 27 September 1994.

LAWFULNESS OF THE AGE ASSESSMENTS AND COUNCIL’S DECISION

[82]I do not accept Mr Greatorex’s submission that any unlawfulness of GE’s age assessments would make no practical difference. As I read the Court of Appeal’s decision in this case, if the age assessments were to be found unlawful, it would make a considerable difference to the outcome of other outstanding litigation between the parties. Sir Bernard Rix, at paragraph 79 said:
“...both age assessments made by or on behalf of the Council… are attacked in these proceedings on the basis that they were unfair as well as wrong in their conclusions (see the lengthy grounds set out at paras. 94ff and 103ff of GE’s re-amended detailed statement of facts and grounds); that such allegedly unfair age assessments have also been relied on in connections with GE’s judicial review claim against SSHD which concerns the legality of her detention, albeit that claim has been stayed behind that against the Council; and that GE’s judicial review claim against the Council has obtained initial permission to apply, as it did from Walker J on 5 December 2012. In those circumstances, it seems to me that the lawfulness, as well as correctness, of those age assessments by the Council has been properly put in issue, and that GE is therefore entitled to a judicial determination of her age, in case, were such an assessment to be in her favour, she might be entitled to some remedy from the Council or the Secretary of State.”
Later, at paragraph 80, he said:
“...On the assumption that [the Council]’s age assessments were merely wrong, but not unfair and in that sense unlawful, I would be hesitant about saying that the Council had acted unlawfully in declining to accommodate GE as a child… It seems to me different if a council has not made a fair assessment: in such circumstances it would be in breach of its duty.”

Lord Justice Davis said, at paragraph 98:

“…where it is subsequently accepted that the applicant was indeed under the age of 18 at the time of the original assessment, it will be relevant… to consider whether the local authority had acted fairly and reasonably at the time of the original age assessment or whether the erroneous initial age assessment was attributable to some culpable or unreasonable conduct on the part of the local authority (or those acting on its behalf). He concluded (at paragraph 101): “... It is also important to note that in the present case, GE has challenged not just the correctness but also the fairness and reasonableness (in public law terms) of her initial age assessment... Those issues also remain potentially to be decided, to the extent necessary...”
[83]On this basis, I have no difficulty concluding that GE’s challenge to the lawfulness of the two age assessments remains a relevant and live issue between the parties in this case. It seems to me both appropriate and necessary that the lawfulness of the two age assessments should be considered. Further, as arguable grounds have been advanced on this issue, and indeed fully argued before me, I see no reason why I should not decide it now. To the extent that permission has not already been granted, I grant it now.[84]Having already found that the Council’s age assessments were wrong in their conclusions, I turn now to the question whether they were unfair and therefore unlawful. Lawfulness of the

First age assessment (24 August 2011)

[85]The first age assessment, I can dispose of briefly. Mr Greatorex did not strive to defend it but the Council has not withdrawn it.[86]I find that the first age assessment failed to meet the Merton guidelines in that: a) the mere presence of a third adult (also a Council social worker), who was unknown to GE and whose role was not explained to GE, was insufficient to satisfy the requirement of an appropriate adult to accompany GE. However well-meaning that adult was, and whatever her intentions to assist and support GE, as a colleague of the two interviewers, I do not see how she could realistically expect to gain GE’s confidence or fulfil the role of an appropriate adult by being alert to any problems that might arise, and intervening if necessary. As later events showed, had GE been given notice of the interview, even if only short notice, it seems probable that she would have been able to secure an appropriate adult to accompany her. It is unclear why the Council gave no notice of the interview, even to her representatives who had requested the age assessment. It is unfortunate that the Council did not do so. b) the assessors did not give GE a fair and proper opportunity, at a stage when their findings were provisional, to respond to matters that could be held against her. On the contrary, GE was positively prevented from commenting on the assessors’ report. Because she was unable to correct what she regarded as errors, she declined to sign it. I consider it an essential requirement of a “Merton compliant” age assessment that the interviewee has a chance to respond to the assessor’s findings. It was particularly unfortunate, given the later challenge of the interpreter’s accuracy, that GE was given no opportunity to correct or explain matters of fact which she believed the assessors had misunderstood or got wrong.[87]I view these procedural failings as so serious that they render the first age assessment unfair and therefore unlawful. I therefore quash the conclusion reached in that assessment. Lawfulness of the

Second age assessment (10 October 2011)

[88]The second age assessment also suffered from procedural failings: a) again, GE was not given fair and proper opportunity to answer adverse findings against her. Telling GE at the end of the assessment interview that the information she had given (or not given) had been taken into consideration was insufficiently specific to enable her to respond meaningfully. Merely giving GE the opportunity to say anything she wished – without identifying the information on which the interviewers were relying or what gaps they had identified – was inadequate and unfair. 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. The subsequent typed assessment report gave further details of the matters which had influenced the assessors’ decision, but even that was flawed as I explain below, and in any event came too late. b) The reasons the age assessors gave for their conclusions at the “outcome” meeting at the end of the interview were inadequate: they did not identify any adverse credibility finding or factual finding, nor did they explain the basis of their conclusion that GE was “older than claimed”. The assessors did not even tell GE the age or date of birth which they had attributed to her. GE’s response “On what did you base your opinion?” was a clear indication that she did not understand the age assessors’ reasoning, and an obvious opportunity for them to explain. They did not do so. c) The written age assessment was also flawed: i) it failed to identify any adverse credibility or factual finding against GE yet stated that GE had not given “a reasonable account of events”. Neither the report itself, nor the interviewers’ handwritten notes, indicate any specific challenge to GE’s account. In particular, the summary chronology which assessors put to GE at interview was based on her answers to their questions, and was not challenged by the assessors during the interview or in their written report; and ii) the report says that GE “would not discuss her early life experiences, childhood or growing up and avoided discussion around this”. This is simply not borne out by the manuscript notes of the interview which I have read with care. These record that GE could not remember much about her life in Eritrea (she explained she left at the age of two, returning for two years between the ages of six and eight so she was still very young when she left the country for the last time). However, GE did describe to the assessors the house in which she had lived, mentioned her friends in the neighbourhood and being taught at home by her mother. The notes do not reveal the interviewers having asked any follow up questions about this stage of GE’s life, nor any that she had been unable or unwilling to answer; iii) the report also states that GE “chose not to disclose information about life in Libya apart from what she stated”. Again, my reading of the manuscript notes clearly shows that GE answered all the interviewers’ questions about her life in Libya, with the sole exception of the name of the town she and her uncle first entered, which she said she did not know. GE told the assessors that, at the time, she was 11 years old, and ill. Again, there is nothing to suggest that the assessors asked any follow up questions about this stage of GE’s life, or that there was anything they asked that she did not answer; iv) overall, passages in the report stating that GE was unwilling or unable to disclose information, or to discuss certain matters, jar because they are inconsistent with the remainder of the report, and are not borne out by the manuscript notes of the interview; v) there is no adequate explanation for the assessors’ failure to accept the apparently credible and consistent answers GE had given during the interview, nor any identification either at the interview or in the written report of any particular aspects of GE’s account that they did not believe and why; and vi) the report states that “GE’s physical appearance and demeanour does not correspond with the life experiences shared” yet gives inadequate reasons for the assessors reaching this conclusion.[89]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. I therefore quash the second age assessment and its conclusions.[90]I am troubled too that the second age assessors were made aware that previous assessments of GE’s age had found her to be older than 18. As this was the crucial question which the assessors were themselves to consider - a difficult enough exercise in any circumstances, but particularly in a case such as this where GE possessed no documentation of any kind - I see no good reason for providing this information to the assessors: the risks of introducing unconscious bias, and compromising the independence of the assessors’ own conclusions, seem to me to be obvious.[91]It is also unfortunate that the same age assessors conducted the second age assessment following an earlier abortive attempt just a few days previously. On that occasion, the very same assessors had expelled GE’s appropriate adult in somewhat controversial circumstances. It is therefore hard to imagine that the environment in which the second age assessment took place was - for GE at least - “non-adversarial and non-stressful” or that GE would readily have been able to establish rapport with the interviewers in accordance with the Merton guidelines.

Lawfulness of the Council’s decision dated 13 October 2011

[92]To the extent it is necessary to do so, and for the avoidance of doubt, I quash as unlawful the Council’s decision as to GE’s age. It hardly needs saying that, having found the second age assessment unlawful for the reasons I have explained above, the Council’s decision which relies on it must also be unlawful on public law grounds.

NEXT STEPS

[93]I am conscious that the outcome of my fact-finding as to GE’s age, and my quashing on public law grounds of the Council’s two age assessments, will have considerable consequences for the ongoing litigation between the parties.

Cited in 3 later judgments