Court of Appeal judge questions approach to age assessment disputes

A senior judge has expressed concern at the way ‘age assessment’ cases are dealt with after handing down judgment in a case where the individual’s age had been determined on five separate occasions.

In AE, R (on the application of) v London Borough of Croydon [2012] EWCA Civ 547 the Court of Appeal ruled that a deputy judge had erred in analysis of the evidence of AE, an unaccompanied asylum seeker from Iran. 

The deputy judge had ruled in July 2011 that AE was a child and that his date of birth was 3 September 1994. This was different from the council, which had concluded that his birth date was 3 September 1993. AE continued to assert that he was born on 3 September 1995.

Lord Justice Aikens said the deputy judge did not take into account at all AE’s evidence about his birth certificate and his birth date on it. This was effectively unchallenged evidence, he added.

“The deputy judge came to the conclusion that AE’s evidence was generally credible,” the Court of Appeal judge said. “If she wished to conclude that his evidence about the birth certificate was not credible, then she was obliged to explain why she reached that conclusion. She did not.”

Lord Justice AIkens said the deputy judge recognised – “as we must recognise” – that social workers in the field were experts and that their evidence, when found to be honest, reliable and carefully stated, must be given due weight.

“The deputy judge gave due weight to their evidence,” he said. “However, she failed to analyse properly the evidence of AE himself and then to take account of Miss Mohieldeen’s evidence, properly understood.”

Miss Mohieldeen was a witness who had taught AE for a period of months after he had arrived in the UK. Her evidence supported AE’s case.

Lord Justice AIkens concluded that AE’s birth date was, on the balance of probabilities, 3 September 1995. He said this was not a case where it was necessary or desirable for the dispute to be remitted for a retrial.

As a postcript, the Court of Appeal judge said it was noted in the case of R(Z) v Croydon LBC that there were, on 12 January 2011, 64 age assessment cases in the Administrative Court's list at various stages of progress.

He pointed out that permission to challenge a local authority's assessment would only be granted if there was a realistic prospect or arguable case that the court would reach a conclusion that the claimant was of a younger age than that assessed by the local authority.

Lord Justice Aikens said: “If the claim before the Administrative Court or Upper Tribunal is on the factual question of whether the age assessment was right or wrong, the court has to make its finding of fact.

“The circumstances in which permission to appeal to this court will be granted from the conclusion of the Administrative Court or Upper Tribunal will be very limited, given that the decision is one of fact.”

Lord Justice Aikens added that the combination of circumstances that led to Macfarlane LJ giving permission in the AE case and to his own conclusion that the appeal should be allowed would be “very rare”.

But the Court of Appeal added: “The fact that this court is having to consider an appeal on a pure point of fact and that it is the fifth time that this young man's age has been determined do perhaps suggest that more thought needs to be given to the question of whether this is the best way to deal with such disputes.”

Philip Hoult

Related courses on...

Age Assessments How will the courts determine whether an individual is legally a child or not? This course provides guidance on what evidence should and should not be taken into account when making a decision and outline the procedure by which challenges are brought.