JR-2024-LON-000514
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The decision
IN THE UPPER TRIBUNAL CASE NO: JR-2024-LON-000514
(IMMIGRATION AND ASYLUM CHAMBER)
JUDICIAL REVIEW
BETWEEN:
THE KING
on the application of
BTM
Applicant
-and-
STOCKTON-ON-TEES BOROUGH COUNCIL
Respondent
ORDER
BEFORE Upper Tribunal Judges Bruce and Landes
UPON hearing counsel, Mr Haywood for the Applicant, and counsel Mr Davies for the Respondent, at a fact finding hearing on the 22nd of October 2024
AND UPON the Upper Tribunal having had regard to the written materials and the oral evidence of the Applicant
AND UPON judgement having been handed down in the presence of the parties on the 14th of January 2025
IT IS DECLARED THAT:
1. The Applicant’s date of birth is the 30th March 2005.
PERMISSION TO APPEAL
2. Neither party has applied for permission to appeal to the Court of Appeal.
3. Permission to appeal is in any event refused because there is no arguable case that we have erred in law or that there is some other reason that requires consideration by the Court of Appeal.
COSTS
4. The Applicant is to pay the Respondent’s reasonable costs, to be assessed, if not agreed. Although the Respondent declined, at an early stage, to withdraw and remake the age assessment, we are not persuaded that litigation costs would have been saved, since the decision, and the challenge to it, would have been materially the same. The Respondent’s conduct has not been such that they are not entitled, as the successful party, to their costs.
5. There shall be detailed assessment of the Applicant’s publicly funded costs.
Upper Tribunal Judge Bruce
14th January 2025
Case No: JR-2024-LON-000514
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
23rd October 2024
Before:
UPPER TRIBUNAL JUDGE BRUCE
UPPER TRIBUNAL JUDGE LANDES
Between:
THE KING
on the application of
BTM
Applicant
- and -
STOCKTON-ON-TEES BOROUGH COUNCIL
Respondent
Hearing date: 22nd October 2024
Field House, London
For the Applicant: Mr P. Haywood of Counsel, instructed by Penelope Baird of Bhatia
Best Solicitors
For the Respondent: Mr B. Davies of Counsel, instructed by Roisin McKenzie, solicitor
to the Council
J U D G M E N T
1. The Applicant has applied for judicial review of the Respondent’s decision dated the 29th August 2023 that the Applicant is not the age she claims to be.
2. The Applicant states that she was born in Eritrea on the 30th March 2007. The Respondent local authority have assessed her as having been born on the 30th March 2000.
3. Permission was granted by Her Honour Judge Belcher, sitting as a Deputy High Court Judge, on the 15th February 2024. Judge Belcher considered it arguable that the process by which the Respondent assessed the Applicant’s age was flawed for procedural unfairness. She appeared to indicate in her order that she did not think it arguable that the decision could be impugned in respect of its factual conclusions. By his Order dated the 27th June 2024 Upper Tribunal Judge Mandalia clarified that the grant of permission should be read to include a challenge to those findings, and before us the parties agree that our primary task is to decide how old the Applicant is today, and by doing so settle upon a date of birth.
4. The face-to-face hearing took place over the course of one day on the 22nd October 2024. We heard live evidence from the Applicant, with the assistance of an interpreter in the Tigrinya language. The parties made submissions and we reserved our decision, which we now give.
The Age Assessment
5. The report setting out the conclusions of the age assessment is dated the 29th August 2023. It was produced after a meeting, lasting 1 hour and 21 minutes, between the Applicant and two social workers employed by the Respondent, Ms Natalie Richards and Ms Jodie Wilkinson. Ms Richards is a social worker of 7 years standing, who received specialist training in age assessments in 2019. Ms Wilkinson qualified in 2021 and received training in age assessments in 2022. We hereinafter refer to their final written report as ‘the Age Assessment’.
6. A great deal of energy was expended, in both the pleadings and oral submissions, in arguing about whether or not the Age Assessment should be quashed for procedural unfairness. In her order granting permission HHJ Belcher thought that a failure to properly follow a ‘minded to refuse’ procedure would make the challenge clearly arguable, and before us Mr Davies, quite properly in our view, conceded that such a procedure was not in fact followed. We have derived much assistance from the contemporaneous notes produced by the social workers as they undertook the assessment. It is clear from these notes, as well as the Age Assessment itself, that potential discrepancies were not put to the Applicant as they went along, and that the social workers only gave her an opportunity to comment right at the end of the process, when their minds were already made up. We bear in mind that any procedural defect will not necessarily be fatal to the decision making process [see for instance R (HAM) v London Borough of Brent [2022] EWHC 1924 (Admin)] but for the reasons we set out below we are satisfied that at least some of the social workers’ concerns could have been allayed had the Applicant been given an opportunity to address them.
7. Of more significant concern, in our view, is that the Age Assessment is quite obviously flawed for several errors of fact. In no particular order these are as follows.
8. The Age Assessment records that the Applicant “has reported three different dates of birth: 20/03/2000, 30/07/2006, and 30/03/07”. It is evident that a strong adverse inference is drawn from this.
9. We are satisfied, and it is now conceded on behalf of the Respondent, that the Applicant has never given the date of birth 20/03/2000. This was the age recorded by the Home Office when she first arrived in the country. She has always contested it. This is evidenced by a letter from the Home Office to the Applicant dated 26th July 2023 which gives her name alongside the date of birth 30/03/2000 and states “you have applied for asylum in the United Kingdom and you have claimed that your date of birth is 30/03/2007. However, you have failed to produce any satisfactory evidence to substantiate this claim”.
10. We are satisfied, on the evidence before us, that the Applicant has never given the date 30/07/06. We do not know where this date comes from: we can find no reference to it in any of the papers before us. The contemporaneous notes record the date 30/03/07, and the 30/07/07, but not the 30/07/06. The witness statement of social worker Natalie Richards, dated the 22nd April 2024, muddies the water yet further. She claims that a meeting with the Applicant took place on the 25th August 2023 and that on that occasion the Applicant gave her date of birth as the 30/03/06; Ms Richards further writes that the Home Office “provided the d.o.b 20/03/07”. Evidently neither of these dates corresponds to the claim in the Age Assessment.
11. There has, it would seem, been some confusion on the part of the social workers about what has been said and when, and in this confusion it has wrongly been alleged that the Applicant gave these two alternative dates of birth.
12. Next, the Age Assessment records this:
“[the Applicant] told social workers that she had needed support in using the washing machine and was shown by Angela Sedgewick how to do so, she shared that Angela had continued to support her with her laundry. Angela however stated that she had never had to support [the Applicant] with using a washing machine, cooking, cleaning or accessing the community”
13. This is, we discern, the matter that leads the social workers to conclude, in their ‘outcomes’ summary, that the Applicant’s “narrative was found to be untruthful in parts”. Angela Sedgewick is the support worker in the house where the Applicant is currently living. If the Applicant dishonestly claimed to need her support in matters of everyday living, it would have been quite reasonable for the social workers to conclude that the Applicant was trying to appear younger and less experienced than she actually is. The difficulty is that the Applicant did not mention Angela at all. What she told social workers was that another resident, named Helen, helped her with the machine: this can be seen from the contemporaneous notes.
14. The social workers repeatedly record in the Age Assessment that the Applicant “showed no emotion” when discussing matters such as what had become of her family members. After the outcome of the assessment had been shared with the Applicant, they record that she “did not show no emotion initially, then appeared angry” and was “staring directly at workers as if trying to intimidate them”. In her witness statement Ms Richards elaborates on this to say that once she was told the outcome she “sat in silence and stared at workers for around ten minutes”. Ms Richards states that “during the assessment there were no tears or upset”. Again, we regret to say, we have found significant disparity between this evidence and what appears in the notes taken by the social workers on the day. What those notes say is that when the Applicant was told the outcome she was “crying, wiping eyes”. It is fair to say that the notetaker goes on to record the social workers’ view that “this was not a true reflection” ie that the Applicant was acting, but whether this upset was real or not, it is plainly something different from her having shown “no emotion”.
15. It is also here apposite to note that we heard something about emotion at the interview from the Applicant herself. It is the Applicant’s claim, set out in a detailed witness statement dated the 29th April 2024, that she was taken from Eritrea by her father who was fleeing service in the military. He took the Applicant with him because he did not want her to be called up when the time came. They left behind her mother, and a sister who was already serving in the Army. In their handwritten note the social workers record that the Applicant gave the following information: “mother has my sisters 2 children”. We noted that there was no mention of these children in the Applicant’s witness statement, and asked her about it at the hearing. What she said was this:
“At the age assessment the social workers really upset me because they were asking ‘don’t you love your mother? Why did you leave her behind?’ I was upset and angry with them for saying this so I just told them that she had to stay behind to look after my sisters children. But it isn’t true. My sister does not have any children. I just said it because I wanted to stop them asking questions about my mother…in truth I do not know why my mother did not come with us”.
16. We found this evidence to be striking. It appeared wholly credible. The Applicant did not cry as she gave this evidence, but there was a palpable sense of emotion in her testimony. Further, she was clearly very candid in acknowledging that she had lied on the spot to the social workers – the existence of these children would have made no difference to her claim one way or the other, and she could quite simply have maintained the lie. Having seen the Applicant give her evidence we formed the overall impression that she is generally a reserved person who does not wear her heart on her sleeve, or find it easy to talk about her experiences. That does not, it seems to us, help us very much with how old she is, but it does go some way to explaining why she has been characterised by both social workers and the Home Office as taciturn and vague.
17. The Age Assessment records that the Applicant was “vague” and “gave very little details” when asked about friends and family. Mr Davies was unable to point to any questions, or answers given, in the contemporaneous note which supports this assertion. Nowhere is she asked to give details about, for instance, friends. The Age Assessment records that the Applicant gave inconsistent evidence about whether her sister Samaha is older or younger than her: this is incorrect. What the record shows is that the Applicant said this: “2 sisters older than me. I don’t know their ages, oldest is Salam the smaller one is Samaha”. We read this to quite clearly mean that Samaha is the smaller of her elder sisters, ie the middle child.
18. The Age Assessment states that the Applicant shared that she had “travelled to Ethiopia with her father where she stayed for around 3 months”. Had this been correct, this would have cast considerable doubt on the Applicant’s evidence about the timeline of events, since her witness statement says that she left Eritrea in January 2020, stayed in Ethiopia until approximately January 2023 and then spent about another 6 months travelling before she reached the UK. In fact, as Mr Davies agrees, what the social workers have recorded in their note is that it took “3 yrs 7 months to the UK”, ie from the time she left Eritrea. Again, an adverse credibility point taken in the Age Assessment is not supported by the handwritten notes.
19. In his submissions Mr Haywood highlighted what he said to be a number of other deficiencies in the Age Assessment process.
20. It is agreed by all that there was no appropriate adult present during the assessment. It is said by the Respondent that Ms Richards and Ms Wilkinson visited the Applicant in her home on the 25th August 2023, a few days prior to the assessment, in order to describe to her the role of an appropriate adult and ask her if she would like one to be present on the day. Their evidence, set out in Ms Richards’ witness statement and adopted by Ms Wilkinson, is that they described their role to the Applicant and asked her “if she would like an advocate to support her”, which she specifically declined. Mr Davies’ instructions were that all of this was explained with the assistance of ‘google translate’. For her part the Applicant has no recollection of this visit, although she fairly admits that it may have taken place. We do not think we need to make a finding one way or the other about this matter, but we would note that the nearest thing we have to a contemporaneous record of that visit is a file note made by the social workers on the 29th August 2025 which read as follows:
“[the Applicant] speaks very little English and was advised that an interpreter would be arranged for Tuesday to complete age assessments. Basic conversation was held unsure how much [the Applicant] understood…”
Obviously this says nothing about an appropriate adult, an ‘advocate’ or google translate.
21. It is agreed by all that there was no interpreter ‘present’ at the age assessment in the sense that one was in the room. There was an interpreter ‘present’ on a video call. Nothing in particular arises from this, but we do accept Mr Haywood’s submission that as a general matter it is preferable to have an interpreter present in the room: see the comments of Stanley Burnton J (as he then was) in R (on the application of B) v London Borough of Merton [2003] EWHC 1689 (Admin) [at §52]. The reasons that it is preferable are that it is easier to sort out any confusion in person; it is more likely to set the young person at ease; it facilitates more fluid conversation. Insofar as the Applicant was criticised for not giving enough detail during the assessment we accept that having the interpreter on a screen probably didn’t help. It is further accepted that there was no ‘readback’ to the Applicant at the end of the assessment. Had that been done, obvious errors such as the mix up between Angela and Helen could have been resolved.
22. Another matter that was held to weigh against the Applicant was the belief formed by social workers that her ability to speak English is far better than she admits to. Presumably the inference they draw there is that she is older and more experienced than she claims. The primary evidence given for this conclusion is that an unnamed taxi driver is said to have reported to an unknown person that during an unspecified journey, the Applicant spoke to him in good English. The Applicant’s response to this is that she was at one point put in a taxi with some other young asylum seeking females; she denies having spoken to the driver at all in that journey and suggests that this driver may have confused her with another passenger, who did. Since we know nothing at all about this taxi driver, his ability to identify the Applicant from a group of other girls or pass judgment on English language ability, we attach no weight whatsoever to this unparticularised hearsay.
23. For all of the foregoing reasons we find the Age Assessment to be flawed for material errors in procedure and substantive content. It is now accepted by the Respondent that there was no ‘minded to refuse’ procedure followed, and we are not satisfied that the general invitation for comment made to the Applicant at the end of the assessment remedied this deficiency. We are satisfied that the Age Assessment contained significant inaccuracies in respect of what date of birth the Applicant has given, her life skills, family history, journey to the UK and whether she displayed “no emotion”. These errors of fact played a material, if not central, role in the social workers’ decision making. Had she been told of the conclusions, and given an opportunity to comment, some or all of the ‘discrepancies’ identified by the social workers could have been clarified. In the ultimate decision that we are tasked with making – identifying the Applicant’s date of birth – the Age Assessment conducted by the Respondent has been of no assistance to us at all.
24. What, then, are we left with?
25. The social workers employed by the Respondent were not the first to conclude that the Applicant was far older than her claimed age. Shortly after she arrived she was assessed by two immigration officers who concluded that her physical appearance and demeanour “very strongly suggested” that she was over 18. She was first housed in the London Borough of Hounslow, whose Care Team conducted a ‘short form’ age assessment on the 9th August 2023. This concluded that the Applicant had a “fully developed adult female body, wide hips, large breasts”. Again the outcome of that assessment was that the Applicant’s appearance and demeanour “overwhelmingly suggest” that she is an adult. It is trite that such observations must be approached with caution, because of the inherent difficulties in assessing age based on appearance. In his submissions Mr Davies submitted that this caution was really only applicable in the cases of young people who fall within the ‘middle grey area’ window of ages 16-20. He submitted that where someone is judged to fall outwith that window, and is “very obviously” an adult or child, then such observations could legitimately attract some weight in the overall assessment. For our part we did not think that that the Applicant appeared to be “very obviously” an adult. Nor did we think her demeanour, described by social workers as being “confident, even playful” was of any assistance to us at all in determining her true age.
26. Nor were we helped in this case by any observation evidence about the Applicant’s life skills. That she appears to be relatively independent and resilient is of little probative value. She could be an independent and resilient 16 year old.
27. In respect of the Applicant’s general credibility there are, as we shall come to, certainly areas of inconsistency. However we find her evidence of her journey from Eritrea to the UK to be largely consistent, and consonant with information known to this specialist Tribunal about Eritrea, Ethiopia and the onward journey to Europe.
28. The Applicant states that her father had been drafted into the Eritrean military against his will and that he decided to leave the country, taking her with him so that she would not have to enlist when the time came. She states that an elder sister had already been drafted before she left the country. All of that is consistent with what we know about Eritrea. In the extant country guidance case of MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC) the Tribunal accepted evidence that the Eritrean authorities operate a harsh military service regime which is compulsory for all but a few citizens. Conditions once enlisted are brutal. The punishment for evading it is worse. It is in our view entirely plausible that the Applicant’s father wished to escape his military service and that he would wish to save his youngest daughter from the draft.
29. The Applicant states that she and her father escaped into Ethiopia where they were sent by the authorities to Adi-Harush refugee camp. This lies in the northern Tigray region close to the border with Eritrea. Evidence we were shown from UNHCR tells us that it is home to just over 10,000 refugees from Eritrea, who are supported there by a variety of partner organisations. Basic food, sanitation and education is provided. This all accords with what the Applicant describes in her detailed witness statement. She describes therein having to leave the camp in approximately May 2022 because of the war in Ethiopia: “life in the camp was very chaotic, and the organisations struggled to bring us food and supplies. I could hear constant gun shots at night and heard about people being killed”. When a group of women were leaving the camp to head for Addis Ababa, the Applicant’s father decided that she should go with them. The Applicant describes seeing dead bodies on the side of the road during that journey. All of this is entirely consistent with what was happening in Ethiopia during the period 2020-2022, namely a civil war between the government and Tigrayan forces in that area of the country.
30. The Applicant states that she stayed with the family from the camp whilst in Addis, until her uncle in Israel arranged an agent for her onward travel. She claims that she was taken by traffickers across Sudan into the Sahara, and then into Libya, where they had to wait for some time before being taken by small boat across the Mediterranean. She was rescued at sea by the Italian authorities and spent some time in Italy before moving on across Europe to Calais, where again she was held up until she could make the crossing to the UK. Again, all of that is wholly consistent with what we know about trafficking routes and we see no reason to reject the Applicant’s evidence on this point. We note that we attach no weight at all to an apparent discrepancy arising from notes made by the Hounslow social workers that it was the Applicant’s uncle who “brought” her to Italy from Libya. We accept her evidence that all that she said was that her journey had been arranged by this uncle: the distinction between “arranged” and “brought” could easily be lost in translation. We find her to have been wholly consistent in her claim to have made this entire journey on her own.
31. It has consistently been the Applicant’s evidence that all of this took approximately 3 years and 7 months. We accept that she left Eritrea with her father in January 2020, and that she arrived in the UK in late July 2023.
32. The Applicant told the social workers that she was “about 13” when she left Ethiopia, but subsequently said that she must have been 12 because she can recall her father telling her that it was her 13th birthday one day when they were in the camp. In other circumstances nothing would turn on this slight discrepancy. Looking at the evidence as a whole, however we have concluded that it is the Applicant’s evidence about how old she was at the time that she left Eritrea that is the key to this case.
33. In her evidence before us the Applicant stated that when she left Eritrea she had completed year 6 at school and that she had just started year 7. We know that the school year starts in September, and so this would mean that she spent one term in year 7 before she left in the January. This is also what she told the social workers in Stockton-on-Tees, and what she says in her detailed witness statement. We are satisfied that this is not a matter about which a young person is going to be mistaken. Even if it is accepted – as it appears to be here – that in Eritrea birthdays are not celebrated in the way that they are in the UK, and that culturally there is no emphasis on age, children still know what year they are in at school. It is not a matter about which one would be confused, or would forget.
34. It is therefore in our view of some significance that in the very first assessment of her age, conducted by an immigration officer on the 28th July 2023, the Applicant said this:
“Q. Do you have any documentation to prove your identity and nationality?
A. No – I have in Eritrea a birth certificate and certificate from school when I was in year 9”
35. In Eritrea primary school starts in year 1 when pupils are about 7. They spend 5 years at primary school before transferring to middle, or junior secondary, school. The Applicant confirms this in her evidence. She thinks she started primary school at “around 6” and spent five years there. Her primary school was called Godaif, and that she then went to Bana Junior Secondary School. In her witness statement she says that she studied maths, science, geography, English and Tigrinya. Her favourite subjects were maths and geography because she liked the teachers in these subjects, whom she names, and because she would “do well in the exams”. It is of course possible that she would have identified favourite teachers at Bana School, and passed exams, even if she only spent a short time there. We have however come to the view that it is more likely than not that she is able to give these details because in fact she spent quite a bit of time at this school before she left Eritrea. This would accord with her having a certificate from year 9.
36. Having “a certificate from year 9” is very particular evidence for her to have given, and we do not think it a matter about which an interpreter, even one attending remotely, would have been confused. We note that later on in that same interview, the Applicant changed her mind and said that she had been in year 8; when she was interviewed by social workers in Hounslow just a couple of weeks later, she appeared to dissemble when being asked about what years she attended school. She immediately asked for a break, and was then hesitant in giving any answers: when pushed she again said that she had left in year 8. Similarly, we see from the handwritten notes taken by the social workers in Stockton-on-Tees that when they started to ask her about school years she gave confused evidence, at one point mentioning the age “14 years old” before saying she was tired and needed a break.
37. We are satisfied that having been given a certificate in year 9 is very specific evidence, likely given because it is true. We think it likely that the Applicant subsequently realised that she had to change that evidence in order to conceal her true age and that is why she was subsequently inconsistent and hesitant about the matter. If the Applicant left Eritrea when she was starting the second term of year 9 rather than year 7, this would make her 14-15 years old at the date that she left that country. More specifically, it would accord with her being 14 years and 10 months old if her birthday is indeed the 30th March.
38. There is another aspect of the evidence before us which would support that proposition. As we note above, it is a key aspect of the Applicant’s case that her father took her out of Eritrea because he did not want her to be conscripted. For the reasons we allude to, explained in greater detail in the country guidance case of MST, that is perfectly understandable. The Applicant states that she had two elder sisters. One, a half sister by another father, had left the country a long time ago, when the Applicant was young. The other was conscripted into the army. When she was interviewed by social workers in Hounslow the Applicant said that this sister was “4 years older” than she was. Although we note that the Applicant later denied knowing how many years were between her and her middle sister, we think this unlikely to be true. She may not have known their exact dates of birth but she would, for instance, have known how many years were between them at school. We are satisfied that the Applicant told the truth to the Hounslow social workers and that her evidence is recorded accurately. Her middle sister is four years older than her.
39. In her witness statement dated the 27th November 2023, which she adopted in evidence before us, the Applicant states that this middle sister, there referred to as Samhar, “left home to work in the military around 1 year before I left Eritrea”. Again, this is specific evidence which we see no reason to reject or suspect to be inaccurate. Although it is not reproduced in the Applicant’s second statement, it is not there corrected, or clarified. The usual age for conscription in Eritrea is approximately 18: see MST (Eritrea). It is likely therefore that Samhar would have been about that age in January 2019, a year before the Applicant left the country. If she was 4 years older than the Applicant then this would make the Applicant about 14 at that time. Again, this would broadly accord with the Applicant being about 14 years and 10 months old in January 2020 when she and her father left.
40. This would in our view also be consistent with the looming danger of conscription. Whilst we accept that her father may have been concerned about her being drafted no matter how old she is, it is in our view likely that this is a concern that would have increased exponentially as she grew closer to draft age. Leaving Eritrea illegally is well-documented to be a dangerous undertaking: you don’t do it unless you have to. It is in our view a risk that a father would likely take for his 14/15 year old, but less so for a 12/13 year old. At that younger age she is half a decade away from the draft, she could have stayed with her mum and perhaps made the journey at a later time when her father had established himself abroad. We accept that there is a degree of speculation here, and it is not a point to which we have attached much weight at all, but this backdrop adds context to our analysis above.
41. The assessment of age is an inexact science. Here we have had very little to go on, concluding as we have that appearance, behaviour and demeanour attract little weight in the Applicant’s case. For the reasons we have given, nor have we been able to rely on the Age Assessment. The Applicant has not been able to produce any identity documents. Although we found certain aspects of the Applicant’s evidence to be straightforward and credible, she has unarguably been vague and inconsistent in respect of two important matters: what years she completed at school, and the difference in age between her and her elder sister. Early on in the process, perhaps before it occurred to her that these were matters of significance, the Applicant gave specific and clear evidence that her sister was four years her elder, that this sister had been drafted in January 2019 and that she had attended year 9 at school. Placing this evidence in the context of Eritrea, we are able to conclude that the Applicant would have been 14 years and 10 months old at the date that she left Eritrea. This would mean that the Applicant’s true date of birth is 30th March 2005.
Decisions
42. The Applicant’s date of birth is declared to be the 30th March 2005.
Upper Tribunal Judge Bruce,
24th October 2024
(IMMIGRATION AND ASYLUM CHAMBER)
JUDICIAL REVIEW
BETWEEN:
THE KING
on the application of
BTM
Applicant
-and-
STOCKTON-ON-TEES BOROUGH COUNCIL
Respondent
ORDER
BEFORE Upper Tribunal Judges Bruce and Landes
UPON hearing counsel, Mr Haywood for the Applicant, and counsel Mr Davies for the Respondent, at a fact finding hearing on the 22nd of October 2024
AND UPON the Upper Tribunal having had regard to the written materials and the oral evidence of the Applicant
AND UPON judgement having been handed down in the presence of the parties on the 14th of January 2025
IT IS DECLARED THAT:
1. The Applicant’s date of birth is the 30th March 2005.
PERMISSION TO APPEAL
2. Neither party has applied for permission to appeal to the Court of Appeal.
3. Permission to appeal is in any event refused because there is no arguable case that we have erred in law or that there is some other reason that requires consideration by the Court of Appeal.
COSTS
4. The Applicant is to pay the Respondent’s reasonable costs, to be assessed, if not agreed. Although the Respondent declined, at an early stage, to withdraw and remake the age assessment, we are not persuaded that litigation costs would have been saved, since the decision, and the challenge to it, would have been materially the same. The Respondent’s conduct has not been such that they are not entitled, as the successful party, to their costs.
5. There shall be detailed assessment of the Applicant’s publicly funded costs.
Upper Tribunal Judge Bruce
14th January 2025
Case No: JR-2024-LON-000514
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
23rd October 2024
Before:
UPPER TRIBUNAL JUDGE BRUCE
UPPER TRIBUNAL JUDGE LANDES
Between:
THE KING
on the application of
BTM
Applicant
- and -
STOCKTON-ON-TEES BOROUGH COUNCIL
Respondent
Hearing date: 22nd October 2024
Field House, London
For the Applicant: Mr P. Haywood of Counsel, instructed by Penelope Baird of Bhatia
Best Solicitors
For the Respondent: Mr B. Davies of Counsel, instructed by Roisin McKenzie, solicitor
to the Council
J U D G M E N T
1. The Applicant has applied for judicial review of the Respondent’s decision dated the 29th August 2023 that the Applicant is not the age she claims to be.
2. The Applicant states that she was born in Eritrea on the 30th March 2007. The Respondent local authority have assessed her as having been born on the 30th March 2000.
3. Permission was granted by Her Honour Judge Belcher, sitting as a Deputy High Court Judge, on the 15th February 2024. Judge Belcher considered it arguable that the process by which the Respondent assessed the Applicant’s age was flawed for procedural unfairness. She appeared to indicate in her order that she did not think it arguable that the decision could be impugned in respect of its factual conclusions. By his Order dated the 27th June 2024 Upper Tribunal Judge Mandalia clarified that the grant of permission should be read to include a challenge to those findings, and before us the parties agree that our primary task is to decide how old the Applicant is today, and by doing so settle upon a date of birth.
4. The face-to-face hearing took place over the course of one day on the 22nd October 2024. We heard live evidence from the Applicant, with the assistance of an interpreter in the Tigrinya language. The parties made submissions and we reserved our decision, which we now give.
The Age Assessment
5. The report setting out the conclusions of the age assessment is dated the 29th August 2023. It was produced after a meeting, lasting 1 hour and 21 minutes, between the Applicant and two social workers employed by the Respondent, Ms Natalie Richards and Ms Jodie Wilkinson. Ms Richards is a social worker of 7 years standing, who received specialist training in age assessments in 2019. Ms Wilkinson qualified in 2021 and received training in age assessments in 2022. We hereinafter refer to their final written report as ‘the Age Assessment’.
6. A great deal of energy was expended, in both the pleadings and oral submissions, in arguing about whether or not the Age Assessment should be quashed for procedural unfairness. In her order granting permission HHJ Belcher thought that a failure to properly follow a ‘minded to refuse’ procedure would make the challenge clearly arguable, and before us Mr Davies, quite properly in our view, conceded that such a procedure was not in fact followed. We have derived much assistance from the contemporaneous notes produced by the social workers as they undertook the assessment. It is clear from these notes, as well as the Age Assessment itself, that potential discrepancies were not put to the Applicant as they went along, and that the social workers only gave her an opportunity to comment right at the end of the process, when their minds were already made up. We bear in mind that any procedural defect will not necessarily be fatal to the decision making process [see for instance R (HAM) v London Borough of Brent [2022] EWHC 1924 (Admin)] but for the reasons we set out below we are satisfied that at least some of the social workers’ concerns could have been allayed had the Applicant been given an opportunity to address them.
7. Of more significant concern, in our view, is that the Age Assessment is quite obviously flawed for several errors of fact. In no particular order these are as follows.
8. The Age Assessment records that the Applicant “has reported three different dates of birth: 20/03/2000, 30/07/2006, and 30/03/07”. It is evident that a strong adverse inference is drawn from this.
9. We are satisfied, and it is now conceded on behalf of the Respondent, that the Applicant has never given the date of birth 20/03/2000. This was the age recorded by the Home Office when she first arrived in the country. She has always contested it. This is evidenced by a letter from the Home Office to the Applicant dated 26th July 2023 which gives her name alongside the date of birth 30/03/2000 and states “you have applied for asylum in the United Kingdom and you have claimed that your date of birth is 30/03/2007. However, you have failed to produce any satisfactory evidence to substantiate this claim”.
10. We are satisfied, on the evidence before us, that the Applicant has never given the date 30/07/06. We do not know where this date comes from: we can find no reference to it in any of the papers before us. The contemporaneous notes record the date 30/03/07, and the 30/07/07, but not the 30/07/06. The witness statement of social worker Natalie Richards, dated the 22nd April 2024, muddies the water yet further. She claims that a meeting with the Applicant took place on the 25th August 2023 and that on that occasion the Applicant gave her date of birth as the 30/03/06; Ms Richards further writes that the Home Office “provided the d.o.b 20/03/07”. Evidently neither of these dates corresponds to the claim in the Age Assessment.
11. There has, it would seem, been some confusion on the part of the social workers about what has been said and when, and in this confusion it has wrongly been alleged that the Applicant gave these two alternative dates of birth.
12. Next, the Age Assessment records this:
“[the Applicant] told social workers that she had needed support in using the washing machine and was shown by Angela Sedgewick how to do so, she shared that Angela had continued to support her with her laundry. Angela however stated that she had never had to support [the Applicant] with using a washing machine, cooking, cleaning or accessing the community”
13. This is, we discern, the matter that leads the social workers to conclude, in their ‘outcomes’ summary, that the Applicant’s “narrative was found to be untruthful in parts”. Angela Sedgewick is the support worker in the house where the Applicant is currently living. If the Applicant dishonestly claimed to need her support in matters of everyday living, it would have been quite reasonable for the social workers to conclude that the Applicant was trying to appear younger and less experienced than she actually is. The difficulty is that the Applicant did not mention Angela at all. What she told social workers was that another resident, named Helen, helped her with the machine: this can be seen from the contemporaneous notes.
14. The social workers repeatedly record in the Age Assessment that the Applicant “showed no emotion” when discussing matters such as what had become of her family members. After the outcome of the assessment had been shared with the Applicant, they record that she “did not show no emotion initially, then appeared angry” and was “staring directly at workers as if trying to intimidate them”. In her witness statement Ms Richards elaborates on this to say that once she was told the outcome she “sat in silence and stared at workers for around ten minutes”. Ms Richards states that “during the assessment there were no tears or upset”. Again, we regret to say, we have found significant disparity between this evidence and what appears in the notes taken by the social workers on the day. What those notes say is that when the Applicant was told the outcome she was “crying, wiping eyes”. It is fair to say that the notetaker goes on to record the social workers’ view that “this was not a true reflection” ie that the Applicant was acting, but whether this upset was real or not, it is plainly something different from her having shown “no emotion”.
15. It is also here apposite to note that we heard something about emotion at the interview from the Applicant herself. It is the Applicant’s claim, set out in a detailed witness statement dated the 29th April 2024, that she was taken from Eritrea by her father who was fleeing service in the military. He took the Applicant with him because he did not want her to be called up when the time came. They left behind her mother, and a sister who was already serving in the Army. In their handwritten note the social workers record that the Applicant gave the following information: “mother has my sisters 2 children”. We noted that there was no mention of these children in the Applicant’s witness statement, and asked her about it at the hearing. What she said was this:
“At the age assessment the social workers really upset me because they were asking ‘don’t you love your mother? Why did you leave her behind?’ I was upset and angry with them for saying this so I just told them that she had to stay behind to look after my sisters children. But it isn’t true. My sister does not have any children. I just said it because I wanted to stop them asking questions about my mother…in truth I do not know why my mother did not come with us”.
16. We found this evidence to be striking. It appeared wholly credible. The Applicant did not cry as she gave this evidence, but there was a palpable sense of emotion in her testimony. Further, she was clearly very candid in acknowledging that she had lied on the spot to the social workers – the existence of these children would have made no difference to her claim one way or the other, and she could quite simply have maintained the lie. Having seen the Applicant give her evidence we formed the overall impression that she is generally a reserved person who does not wear her heart on her sleeve, or find it easy to talk about her experiences. That does not, it seems to us, help us very much with how old she is, but it does go some way to explaining why she has been characterised by both social workers and the Home Office as taciturn and vague.
17. The Age Assessment records that the Applicant was “vague” and “gave very little details” when asked about friends and family. Mr Davies was unable to point to any questions, or answers given, in the contemporaneous note which supports this assertion. Nowhere is she asked to give details about, for instance, friends. The Age Assessment records that the Applicant gave inconsistent evidence about whether her sister Samaha is older or younger than her: this is incorrect. What the record shows is that the Applicant said this: “2 sisters older than me. I don’t know their ages, oldest is Salam the smaller one is Samaha”. We read this to quite clearly mean that Samaha is the smaller of her elder sisters, ie the middle child.
18. The Age Assessment states that the Applicant shared that she had “travelled to Ethiopia with her father where she stayed for around 3 months”. Had this been correct, this would have cast considerable doubt on the Applicant’s evidence about the timeline of events, since her witness statement says that she left Eritrea in January 2020, stayed in Ethiopia until approximately January 2023 and then spent about another 6 months travelling before she reached the UK. In fact, as Mr Davies agrees, what the social workers have recorded in their note is that it took “3 yrs 7 months to the UK”, ie from the time she left Eritrea. Again, an adverse credibility point taken in the Age Assessment is not supported by the handwritten notes.
19. In his submissions Mr Haywood highlighted what he said to be a number of other deficiencies in the Age Assessment process.
20. It is agreed by all that there was no appropriate adult present during the assessment. It is said by the Respondent that Ms Richards and Ms Wilkinson visited the Applicant in her home on the 25th August 2023, a few days prior to the assessment, in order to describe to her the role of an appropriate adult and ask her if she would like one to be present on the day. Their evidence, set out in Ms Richards’ witness statement and adopted by Ms Wilkinson, is that they described their role to the Applicant and asked her “if she would like an advocate to support her”, which she specifically declined. Mr Davies’ instructions were that all of this was explained with the assistance of ‘google translate’. For her part the Applicant has no recollection of this visit, although she fairly admits that it may have taken place. We do not think we need to make a finding one way or the other about this matter, but we would note that the nearest thing we have to a contemporaneous record of that visit is a file note made by the social workers on the 29th August 2025 which read as follows:
“[the Applicant] speaks very little English and was advised that an interpreter would be arranged for Tuesday to complete age assessments. Basic conversation was held unsure how much [the Applicant] understood…”
Obviously this says nothing about an appropriate adult, an ‘advocate’ or google translate.
21. It is agreed by all that there was no interpreter ‘present’ at the age assessment in the sense that one was in the room. There was an interpreter ‘present’ on a video call. Nothing in particular arises from this, but we do accept Mr Haywood’s submission that as a general matter it is preferable to have an interpreter present in the room: see the comments of Stanley Burnton J (as he then was) in R (on the application of B) v London Borough of Merton [2003] EWHC 1689 (Admin) [at §52]. The reasons that it is preferable are that it is easier to sort out any confusion in person; it is more likely to set the young person at ease; it facilitates more fluid conversation. Insofar as the Applicant was criticised for not giving enough detail during the assessment we accept that having the interpreter on a screen probably didn’t help. It is further accepted that there was no ‘readback’ to the Applicant at the end of the assessment. Had that been done, obvious errors such as the mix up between Angela and Helen could have been resolved.
22. Another matter that was held to weigh against the Applicant was the belief formed by social workers that her ability to speak English is far better than she admits to. Presumably the inference they draw there is that she is older and more experienced than she claims. The primary evidence given for this conclusion is that an unnamed taxi driver is said to have reported to an unknown person that during an unspecified journey, the Applicant spoke to him in good English. The Applicant’s response to this is that she was at one point put in a taxi with some other young asylum seeking females; she denies having spoken to the driver at all in that journey and suggests that this driver may have confused her with another passenger, who did. Since we know nothing at all about this taxi driver, his ability to identify the Applicant from a group of other girls or pass judgment on English language ability, we attach no weight whatsoever to this unparticularised hearsay.
23. For all of the foregoing reasons we find the Age Assessment to be flawed for material errors in procedure and substantive content. It is now accepted by the Respondent that there was no ‘minded to refuse’ procedure followed, and we are not satisfied that the general invitation for comment made to the Applicant at the end of the assessment remedied this deficiency. We are satisfied that the Age Assessment contained significant inaccuracies in respect of what date of birth the Applicant has given, her life skills, family history, journey to the UK and whether she displayed “no emotion”. These errors of fact played a material, if not central, role in the social workers’ decision making. Had she been told of the conclusions, and given an opportunity to comment, some or all of the ‘discrepancies’ identified by the social workers could have been clarified. In the ultimate decision that we are tasked with making – identifying the Applicant’s date of birth – the Age Assessment conducted by the Respondent has been of no assistance to us at all.
24. What, then, are we left with?
25. The social workers employed by the Respondent were not the first to conclude that the Applicant was far older than her claimed age. Shortly after she arrived she was assessed by two immigration officers who concluded that her physical appearance and demeanour “very strongly suggested” that she was over 18. She was first housed in the London Borough of Hounslow, whose Care Team conducted a ‘short form’ age assessment on the 9th August 2023. This concluded that the Applicant had a “fully developed adult female body, wide hips, large breasts”. Again the outcome of that assessment was that the Applicant’s appearance and demeanour “overwhelmingly suggest” that she is an adult. It is trite that such observations must be approached with caution, because of the inherent difficulties in assessing age based on appearance. In his submissions Mr Davies submitted that this caution was really only applicable in the cases of young people who fall within the ‘middle grey area’ window of ages 16-20. He submitted that where someone is judged to fall outwith that window, and is “very obviously” an adult or child, then such observations could legitimately attract some weight in the overall assessment. For our part we did not think that that the Applicant appeared to be “very obviously” an adult. Nor did we think her demeanour, described by social workers as being “confident, even playful” was of any assistance to us at all in determining her true age.
26. Nor were we helped in this case by any observation evidence about the Applicant’s life skills. That she appears to be relatively independent and resilient is of little probative value. She could be an independent and resilient 16 year old.
27. In respect of the Applicant’s general credibility there are, as we shall come to, certainly areas of inconsistency. However we find her evidence of her journey from Eritrea to the UK to be largely consistent, and consonant with information known to this specialist Tribunal about Eritrea, Ethiopia and the onward journey to Europe.
28. The Applicant states that her father had been drafted into the Eritrean military against his will and that he decided to leave the country, taking her with him so that she would not have to enlist when the time came. She states that an elder sister had already been drafted before she left the country. All of that is consistent with what we know about Eritrea. In the extant country guidance case of MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC) the Tribunal accepted evidence that the Eritrean authorities operate a harsh military service regime which is compulsory for all but a few citizens. Conditions once enlisted are brutal. The punishment for evading it is worse. It is in our view entirely plausible that the Applicant’s father wished to escape his military service and that he would wish to save his youngest daughter from the draft.
29. The Applicant states that she and her father escaped into Ethiopia where they were sent by the authorities to Adi-Harush refugee camp. This lies in the northern Tigray region close to the border with Eritrea. Evidence we were shown from UNHCR tells us that it is home to just over 10,000 refugees from Eritrea, who are supported there by a variety of partner organisations. Basic food, sanitation and education is provided. This all accords with what the Applicant describes in her detailed witness statement. She describes therein having to leave the camp in approximately May 2022 because of the war in Ethiopia: “life in the camp was very chaotic, and the organisations struggled to bring us food and supplies. I could hear constant gun shots at night and heard about people being killed”. When a group of women were leaving the camp to head for Addis Ababa, the Applicant’s father decided that she should go with them. The Applicant describes seeing dead bodies on the side of the road during that journey. All of this is entirely consistent with what was happening in Ethiopia during the period 2020-2022, namely a civil war between the government and Tigrayan forces in that area of the country.
30. The Applicant states that she stayed with the family from the camp whilst in Addis, until her uncle in Israel arranged an agent for her onward travel. She claims that she was taken by traffickers across Sudan into the Sahara, and then into Libya, where they had to wait for some time before being taken by small boat across the Mediterranean. She was rescued at sea by the Italian authorities and spent some time in Italy before moving on across Europe to Calais, where again she was held up until she could make the crossing to the UK. Again, all of that is wholly consistent with what we know about trafficking routes and we see no reason to reject the Applicant’s evidence on this point. We note that we attach no weight at all to an apparent discrepancy arising from notes made by the Hounslow social workers that it was the Applicant’s uncle who “brought” her to Italy from Libya. We accept her evidence that all that she said was that her journey had been arranged by this uncle: the distinction between “arranged” and “brought” could easily be lost in translation. We find her to have been wholly consistent in her claim to have made this entire journey on her own.
31. It has consistently been the Applicant’s evidence that all of this took approximately 3 years and 7 months. We accept that she left Eritrea with her father in January 2020, and that she arrived in the UK in late July 2023.
32. The Applicant told the social workers that she was “about 13” when she left Ethiopia, but subsequently said that she must have been 12 because she can recall her father telling her that it was her 13th birthday one day when they were in the camp. In other circumstances nothing would turn on this slight discrepancy. Looking at the evidence as a whole, however we have concluded that it is the Applicant’s evidence about how old she was at the time that she left Eritrea that is the key to this case.
33. In her evidence before us the Applicant stated that when she left Eritrea she had completed year 6 at school and that she had just started year 7. We know that the school year starts in September, and so this would mean that she spent one term in year 7 before she left in the January. This is also what she told the social workers in Stockton-on-Tees, and what she says in her detailed witness statement. We are satisfied that this is not a matter about which a young person is going to be mistaken. Even if it is accepted – as it appears to be here – that in Eritrea birthdays are not celebrated in the way that they are in the UK, and that culturally there is no emphasis on age, children still know what year they are in at school. It is not a matter about which one would be confused, or would forget.
34. It is therefore in our view of some significance that in the very first assessment of her age, conducted by an immigration officer on the 28th July 2023, the Applicant said this:
“Q. Do you have any documentation to prove your identity and nationality?
A. No – I have in Eritrea a birth certificate and certificate from school when I was in year 9”
35. In Eritrea primary school starts in year 1 when pupils are about 7. They spend 5 years at primary school before transferring to middle, or junior secondary, school. The Applicant confirms this in her evidence. She thinks she started primary school at “around 6” and spent five years there. Her primary school was called Godaif, and that she then went to Bana Junior Secondary School. In her witness statement she says that she studied maths, science, geography, English and Tigrinya. Her favourite subjects were maths and geography because she liked the teachers in these subjects, whom she names, and because she would “do well in the exams”. It is of course possible that she would have identified favourite teachers at Bana School, and passed exams, even if she only spent a short time there. We have however come to the view that it is more likely than not that she is able to give these details because in fact she spent quite a bit of time at this school before she left Eritrea. This would accord with her having a certificate from year 9.
36. Having “a certificate from year 9” is very particular evidence for her to have given, and we do not think it a matter about which an interpreter, even one attending remotely, would have been confused. We note that later on in that same interview, the Applicant changed her mind and said that she had been in year 8; when she was interviewed by social workers in Hounslow just a couple of weeks later, she appeared to dissemble when being asked about what years she attended school. She immediately asked for a break, and was then hesitant in giving any answers: when pushed she again said that she had left in year 8. Similarly, we see from the handwritten notes taken by the social workers in Stockton-on-Tees that when they started to ask her about school years she gave confused evidence, at one point mentioning the age “14 years old” before saying she was tired and needed a break.
37. We are satisfied that having been given a certificate in year 9 is very specific evidence, likely given because it is true. We think it likely that the Applicant subsequently realised that she had to change that evidence in order to conceal her true age and that is why she was subsequently inconsistent and hesitant about the matter. If the Applicant left Eritrea when she was starting the second term of year 9 rather than year 7, this would make her 14-15 years old at the date that she left that country. More specifically, it would accord with her being 14 years and 10 months old if her birthday is indeed the 30th March.
38. There is another aspect of the evidence before us which would support that proposition. As we note above, it is a key aspect of the Applicant’s case that her father took her out of Eritrea because he did not want her to be conscripted. For the reasons we allude to, explained in greater detail in the country guidance case of MST, that is perfectly understandable. The Applicant states that she had two elder sisters. One, a half sister by another father, had left the country a long time ago, when the Applicant was young. The other was conscripted into the army. When she was interviewed by social workers in Hounslow the Applicant said that this sister was “4 years older” than she was. Although we note that the Applicant later denied knowing how many years were between her and her middle sister, we think this unlikely to be true. She may not have known their exact dates of birth but she would, for instance, have known how many years were between them at school. We are satisfied that the Applicant told the truth to the Hounslow social workers and that her evidence is recorded accurately. Her middle sister is four years older than her.
39. In her witness statement dated the 27th November 2023, which she adopted in evidence before us, the Applicant states that this middle sister, there referred to as Samhar, “left home to work in the military around 1 year before I left Eritrea”. Again, this is specific evidence which we see no reason to reject or suspect to be inaccurate. Although it is not reproduced in the Applicant’s second statement, it is not there corrected, or clarified. The usual age for conscription in Eritrea is approximately 18: see MST (Eritrea). It is likely therefore that Samhar would have been about that age in January 2019, a year before the Applicant left the country. If she was 4 years older than the Applicant then this would make the Applicant about 14 at that time. Again, this would broadly accord with the Applicant being about 14 years and 10 months old in January 2020 when she and her father left.
40. This would in our view also be consistent with the looming danger of conscription. Whilst we accept that her father may have been concerned about her being drafted no matter how old she is, it is in our view likely that this is a concern that would have increased exponentially as she grew closer to draft age. Leaving Eritrea illegally is well-documented to be a dangerous undertaking: you don’t do it unless you have to. It is in our view a risk that a father would likely take for his 14/15 year old, but less so for a 12/13 year old. At that younger age she is half a decade away from the draft, she could have stayed with her mum and perhaps made the journey at a later time when her father had established himself abroad. We accept that there is a degree of speculation here, and it is not a point to which we have attached much weight at all, but this backdrop adds context to our analysis above.
41. The assessment of age is an inexact science. Here we have had very little to go on, concluding as we have that appearance, behaviour and demeanour attract little weight in the Applicant’s case. For the reasons we have given, nor have we been able to rely on the Age Assessment. The Applicant has not been able to produce any identity documents. Although we found certain aspects of the Applicant’s evidence to be straightforward and credible, she has unarguably been vague and inconsistent in respect of two important matters: what years she completed at school, and the difference in age between her and her elder sister. Early on in the process, perhaps before it occurred to her that these were matters of significance, the Applicant gave specific and clear evidence that her sister was four years her elder, that this sister had been drafted in January 2019 and that she had attended year 9 at school. Placing this evidence in the context of Eritrea, we are able to conclude that the Applicant would have been 14 years and 10 months old at the date that she left Eritrea. This would mean that the Applicant’s true date of birth is 30th March 2005.
Decisions
42. The Applicant’s date of birth is declared to be the 30th March 2005.
Upper Tribunal Judge Bruce,
24th October 2024