In Bedford County Council v GE (Eritrea) [2017] EWCA Civ 1521 the Court of Appeal refused to overturn an age assessment simply because the local authority disagreed with judicial findings of fact. The judgment upheld the Administrative Court’s decision that GE was born on 27 September 1994, making her 16 years old when she entered the UK.

The facts

GE was born in Eritrea in 1994. After parental bereavement she moved (via Sudan) to Libya with her uncle. Following the outbreak of war she escaped Libya by boat. In May 2011 GE entered the UK hidden in a lorry.

GE was arrested in Dover and immediately claimed asylum. The UK Border Agency determined that her “physical appearance/demeanour very strongly suggests that [she was] significantly 18 years of age or over”. GE was detained at Yarl’s Wood Immigration Detention Centre.

Determining GE’s age was important, because if she was under 18 when she entered the UK then the local authority needed to provide her with accommodation under the Children Act 1989. Conversely, if she was found to be over 18, the council did not have that obligation.

Assessing GE’s age

Age assessments need to adhere to the “Merton principles” set out in R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin). Relevantly for GE’s appeal the Merton principles require that:

• An “appropriate adult” be present, ready to intervene where necessary; and
•  The person being assessed has reasonable opportunity to respond to anything arising that may be held against them.

The local authority conducted an initial age assessment in August 2011, which did not adhere to either of the Merton principles outlined above. Bedford County Council did not seek to defend that assessment.

In October 2011 a second age assessment took place, which found GE was over 18 years old. The local authority based their decision not to offer GE accommodation on that second assessment and sought to defend it.

However, the second age assessment also suffered from multiple flaws, including that the assessors made inferences about GE’s credibility that were unsupported by their contemporaneous interview notes and had failed to give adequate reasons for their decision.

GE judicially reviewed the second assessment. The Court of Appeal ultimately decided that it was necessary for a court to decide GE’s age. In May 2015 the Administrative Court held that GE was born in September 1994. Therefore, GE was 16 years old when she entered the UK and was entitled to local authority accommodation.

The Court of Appeal’s reasoning

Bedford County Council appealed the Administrative Court’s decision, arguing:

1. The Administrative Court judge had incorrectly determined GE’s age; and
2. The Administrative Court had incorrectly quashed the second age assessment.

The local authority’s arguments lacked legs from the outset. It did not submit that the Administrative Court judge had made an error of law. It did not take issue with her methodological approach, nor argue that her factual determinations were perverse.

Instead, Bedford County Council’s case was that the judge had simply erred in her analysis of the evidence. It contended that she had placed too much weight on oral evidence heard in court in May 2014 over written evidence recorded in 2011.

The Court of Appeal’s judgment is (for all intents and purposes) over by paragraph 16, which is worth citing at length:

 “… it would not normally be appropriate for this court to entertain an appeal which amounts to no more than a disagreement with a 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.”

In short, the Court of Appeal refused to substitute the Administrative Court’s “carefully reasoned” assessment of the facts with its own.

The Court of Appeal is not a first instance tribunal

Sir Ernest Ryder commended Bedford County Council’s counsel for their “attention to detail” when dissecting GE’s evidence for inconsistencies (paragraph 25). The identified inconsistencies could have fed into “relatively powerful” cross-examination at first instance, but were ill suited to appeal submissions.

Ultimately, the local authority’s factual arguments were raised too late. Appellate judges were not (and will not be) tempted to substitute their own assessment of the facts – especially when the earlier judicial reasoning is “patently cogent.”

GE serves as a reminder to practitioners that “however strong a case might be”, the Court of Appeal will refuse to play the role of a tribunal.