GE (Eritrea)), R (on the application of) v Secretary of State for the Home Department & Anor

In an age-assessment challenge, the court must determine age as a question of fact on the balance of probabilities, without imposing a legal burden of proof. The decision-maker must conduct a holistic assessment based on the applicant’s history and all relevant evidence. Physical appearance and demeanour should not provide a major basis for the assessment, particularly where observed during a short and artificial interview.

A fair assessment requires an appropriate adult, effective interpretation, a non-adversarial process, adequate reasons, and a fair opportunity to respond to provisional adverse findings. Failure to meet these minimum standards renders the assessment unlawful.

The claimant, an Eritrean national, claimed to have been born on 27 September 1994. On arrival in the United Kingdom in May 2011 she was treated as an adult and detained. Bedford Borough Council later conducted two age assessments, both concluding that she was older than claimed.

The claimant challenged the assessments by judicial review. Following an order of the Court of Appeal for a retrial of the issue of her age, the court had to determine both her age and the lawfulness of the Council’s assessments. The central issues were whether she was under 18 at the material time and whether the assessment processes were fair and lawful.

1. Age as a jurisdictional fact. The court determined the claimant’s age itself. Applying R (A) v London Borough of Croydon [2009] UKSC 8, the question whether a person is a child is one of fact for the court. Under R (CJ) v Cardiff City Council [2011] EWCA Civ 1590, the court applies the balance of probabilities without placing a legal burden on the claimant.
2. The court assessed the raw evidence holistically. Consistent chronology and credible oral evidence could carry substantial weight despite the absence of documentary evidence. Alleged inconsistencies concerning fingerprinting, family history and dates were not sufficiently significant to undermine the claimant’s account.
3. Physical appearance and demeanour were of limited value. Following R (AM) v Solihull Metropolitan Borough Council (AAJR) [2012] UKUT 00118 (IAC) and R (R) v Croydon [2011] EWHC 1473 (Admin), observations made during a short interview with unfamiliar adults may be affected by fear, trauma, formality and cultural differences. Physical appearance should never be a major reason for an age assessment.
4. The assessment had to comply with the minimum standards derived from R (B) v London Borough of Merton [2003] EWHC 1689 (Admin), refined in FZ v Croydon LBC [2011] EWCA Civ 59 and summarised in R (AS) v Croydon LBC [2011] EWHC 2091 (Admin). These included an appropriate adult, effective interpretation, a structured and non-adversarial interview, a holistic assessment, trained assessors, and adequate reasons.
5. The first assessment was unlawful. The purported appropriate adult was a Council colleague whose role was not explained, and the claimant was prevented from responding to matters relied upon against her. The assessment was quashed.
6. The second assessment was also unlawful. The claimant was not told the specific adverse matters relied upon, was not given a meaningful opportunity to respond, and was not told the age attributed to her or adequately informed of the reasons. The written report was internally inconsistent and failed to identify or explain adverse credibility findings. The assessment and the Council’s decision were quashed.
7. The court also considered that informing the second assessors of earlier adverse assessments created an obvious risk of unconscious bias and compromised independence, although the decision was determined by the procedural and reasoning failures identified above.
8. The court found that the claimant was born on 27 September 1994 and was under 18 when she arrived in the United Kingdom.

The judgment records that the Court of Appeal ordered a retrial of the claimant’s age on 21 November 2014. This court then determined the claimant’s age and the lawfulness of the Council’s assessments.