Bedford County Council v GE (Eritrea)

An appellate court reviewing a judicial age determination should not reweigh evidence or act as a first-instance tribunal. Where the judge has conducted a reasoned, holistic assessment and no error of law or perversity is shown, disagreement about the treatment of inconsistencies is insufficient. Age assessments must comply with the Merton principles. An appropriate adult must be present and able to intervene, and the person assessed must have a fair opportunity to answer matters that may count against them. An assessment is unlawful where those safeguards are absent or its conclusions are inadequately explained.

GE, who claimed to be an unaccompanied child from Eritrea, was assessed by Bedford Borough Council as over 18. The council conducted assessments on 24 August and 10 October 2011 and issued a decision on 13 October 2011. GE challenged those decisions by judicial review.

Earlier Court of Appeal proceedings, reported at [2014] EWCA Civ 1490, resulted in the age question being remitted to the High Court. On 22 May 2015, a deputy High Court judge found that GE was born on 27 September 1994 and quashed both assessments and the council’s decision for procedural unfairness. The council appealed, challenging the judge’s factual evaluation and her decision to determine the lawfulness of the assessments.

1. Factual age determination. The appeal court was not a first-instance tribunal. The deputy judge had undertaken a holistic assessment of the available evidence, gave detailed reasons, and made no alleged error of law. In the absence of transcripts or material demonstrating perversity, the council’s identification of inconsistencies did not justify appellate interference. The judge was entitled to accept GE’s evidence and find that she was a child when she entered the United Kingdom. The appeal on that issue was dismissed.
2. Procedural requirements. The Merton principles, as approved and supplemented by R (B) v London Borough of Merton [2003] EWHC 1689 (Admin) and FZ v Croydon LBC [2011] EWCA Civ 59, required an appropriate adult to be present and ready to intervene. GE also had to receive a reasonable opportunity to respond to matters that might be held against her.
3. First assessment. The appropriate adult was a local authority social worker whom GE did not know, and her role was not explained. GE was not given an opportunity to answer adverse matters identified by the assessors. The assessment was procedurally unfair and had to be quashed.
4. Second assessment. The assessors did not explain the adverse interpretation of GE’s evidence or give her a fair opportunity to respond. Their conclusions about reticence and unwillingness were not supported by the interview notes, and they failed to explain why her account was rejected. Reliance on appearance and demeanour was also inadequately reasoned. The assessment therefore failed in essential respects to comply with the Merton principles and was unlawful. The council’s consequential decision of 13 October 2011 could not stand and was also quashed.
5. Power to determine lawfulness. It was appropriate and proportionate for the High Court to determine the lawfulness of the assessments and related decision on the remittal, particularly because the earlier Court of Appeal had considered those issues open and they affected other litigation.
6. The additional view that the second assessment may have been tainted by the first was not essential to the decision. The appeal was dismissed unanimously.

1. Court of Appeal (Civil Division): The council’s appeal was dismissed. The court upheld the High Court’s factual age determination and the quashing of the assessments and consequential decision.
2. Earlier Court of Appeal proceedings: The age question was remitted to the High Court in proceedings reported at [2014] EWCA Civ 1490.
3. High Court, Queen’s Bench Division: On 22 May 2015, a deputy judge assessed GE as born on 27 September 1994 and quashed the first and second age assessments and the council’s decision of 13 October 2011.