AE, R (on the application of) v London Borough of Croydon

An appellate court must exercise particular caution before disturbing a first-instance assessment of an asylum seeker's age. The need for restraint increases where the assessment depends upon oral evidence, impressions and the evaluation of several factors.

A fact-finder may consider demeanour, but should give appropriate weight to witnesses who have observed the person over a longer period. Where otherwise credible evidence about age was not challenged, the court must either accept it or give adequate reasons for rejecting it. Disbelief concerning one part of a witness's account does not, without a logical explanation, justify rejecting evidence on a separate issue.

An unaccompanied asylum seeker sought judicial review of a local authority's assessment that he had been born in September 1993. A deputy judge of the Administrative Court rejected that assessment but also rejected his claimed birth date, declaring that he had been born in September 1994.

The claimant appealed. He contended that the deputy judge had failed to address his unchallenged evidence about seeing his birth certificate, had relied upon immaterial inconsistencies concerning his arrival in the United Kingdom, had placed excessive weight upon his demeanour and had misunderstood the evidence of a teacher who had known him for several months.

The central issue was whether those errors justified appellate intervention in the deputy judge's factual assessment and, if so, whether the Court of Appeal should determine the claimant's age itself.

1. Appeal allowed unanimously. The deputy judge's declaration was displaced. On the balance of probabilities, the appellant's date of birth was 3 September 1995, and a declaration was granted accordingly.

2. A court resolving a disputed age acts in an inquisitorial role. It must consider all relevant evidence and make its own factual assessment on the balance of probabilities: R(CJ) v Cardiff City Council [2011] EWCA Civ 1590. A person's age is a precedent fact governing the exercise of the local authority's powers under section 20(1) of the Children Act 1989: R (A) v Croydon LBC [2009] 1 WLR 2557.

3. An appellate court must take particular care before interfering with an age assessment involving primary facts, oral evidence, opinions, impressions and nuance. There is no single test for intervention. The greater the dependence upon oral evidence or the overall evaluation of several factors, the less willing an appellate court should ordinarily be to interfere: Laker Vent v Templeton [2009] EWCA Civ 62.

4. The deputy judge nevertheless made a material error. The appellant had given detailed evidence that his mother repeatedly told him his age and that he had seen his date of birth on his birth certificate. That evidence was not challenged as dishonest or mistaken. Having found his account generally credible, the deputy judge was required either to accept the evidence or explain its rejection. She did neither.

5. The perceived inconsistencies concerning the appellant's arrival at the Home Office did not provide a rational basis for rejecting his separate evidence about his birth certificate. The contemporaneous accounts disclosed no material inconsistency apart from one disputed reference to a car. The reasoning therefore involved an illogical and unexplained jump between distinct parts of the evidence.

6. The deputy judge was entitled to consider the appellant's demeanour. Its weight was limited because she had observed him only for a few hours, whereas social workers and his teacher had observed his behaviour over substantially longer periods. Demeanour did not justify rejecting otherwise credible evidence without a good reason. Properly understood, the teacher's evidence supported the claimed birth date.

7. Remittal was unnecessary. The existing evidence enabled the Court of Appeal to determine the factual issue. Permission to appeal from age findings will ordinarily be granted only in very limited circumstances because such decisions are predominantly factual.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The court displaced the deputy judge's assessment and declared that the appellant's date of birth was 3 September 1995.
2. Administrative Court: On 1 July 2011, Frances Patterson QC, sitting as a deputy judge, allowed the judicial review and declared that the appellant had been born on 3 September 1994 rather than on the local authority's assessed date of 3 September 1993.