Young female Eritrean refugee finally vindicated in respect of her age after almost two years of litigation and having been denied statutory care

The Upper Tribunal has today handed down judgment in the case of R (E) v Royal Borough of Kensington and Chelsea (JR-2022-LON-001940) accepting E’s age and date of birth and quashing the local authority’s age assessment which concluded that she was 5 years older than claimed.

This case had a long procedural history after permission was refused by the Administrative Court both on the papers and on renewal before being granted by Lord Justice Warby in the Court of Appeal with the case being transferred to the Upper Tribunal for a fact-finding hearing last month.

E was accepted as a refugee by the Home Office in the course of proceedings and the Upper Tribunal Judge found that this, combined with the fact that E had developed a support network from trusted professionals at Young Roots and the Helen Bamber Foundation while she had not been in local authority care and therefore sought little support from a social worker belatedly allocated to her, meant that she had “little incentive” to continue with the litigation and “little to motivate [her] to continue to claim that she is much younger if she is in her mid-20s as assessed”.  E continued with the claim over such an extensive period to prove that she was not lying about her age and that she was 17 on entry to the UK and 19 years old at the date of hearing.

Factual background

E was born in Eritrea before becoming orphaned at a young age and was raised by her aunt as a Pentecostal Christian.  E and her aunt fled religious persecution in Eritrea to Sudan where E lived a precarious life as an undocumented migrant, rarely leaving the compound in which they lived other than to attend school at a local orthodox church.  E then left Sudan with arrangements made by her aunt, travelling through Europe, and arriving in the UK by boat in June 2021 when E was 17 years old.

On the day of her arrival, E was the subject of an age assessment conducted by social workers employed by the Home Office at the Kent Intake Unit (KIU).  The social workers disputed E’s age, considering her to be 5 years older and 22 years old at that time. As a result, E was not provided with support and accommodation under the Children Act 1989 and was placed in adult asylum support accommodation in the area of the Royal Borough of Kensington and Chelsea (RBKC).

E then came to the attention of Young Roots, a specialist charity supporting young refugees and asylum seekers. Young Roots referred E to the local authority as a child in need.  Rather than taking E into care, RBKC conducted a “short-form” age assessment that was competed over a single session with no appropriate adult present and no minded to process.  RBKC concluded that E was “likely to be significantly older than 22” years old. The social workers firmly concluded that there was no possibility that E might be a child at the material time and refused to provide her with support under the Children Act 1989.

By the time of the fact-finding hearing in July 2023, E had four witnesses who supported her age from Young Roots, the Helen Bamber Foundation and a friend whom she had met in Calais and remained very close to who was also a young refugee from Eritrea.  RBKC relied upon its age assessment and a statement from a social worker who had been allocated to E unusually when E was already 19 years old on her claimed age, in the course of proceedings who considered E to be “over the age of 25”.

The Tribunal’s findings

E’s account

The Tribunal Judge considered E’s account and found it broadly consistent and broadly consistent with her claimed date of birth.  The Judge found an aspect of E’s travel from Sudan to Greece to be vague but noting that asylum seekers may be less candid about their method of travel because it often involves utilising people smuggling routes. The Judge reiterated that the fact that a person may lie about one element does not necessarily undermine the core aspects of their account.

The Judge addressed submissions made by Counsel for RBKC at hearing (and in its skeleton argument) which were said to go against E’s credibility and were said to support that E had been an adult at all material times that E had been in the UK.  The Judge held that the points relied upon by RBKC were not put directly to E for comment at hearing where they should have been put to give E a fair opportunity to comment on them, noting that potential discrepancies of the kind identified may have an innocent explanation but that the Tribunal cannot judge this if the matters are not fairly put.

The age assessment conducted by the Kent Intake Unit

The Tribunal Judge placed little weight upon the assessment undertaken at the KIU. She noted that there was no record of the interview questions to check the accuracy of the answers recorded to have been given by E. Further, there was no description of the experience of the social workers or their experience in age assessment. The assessment itself had been undertaken on the day that E arrived in the UK, with an interpreter over the phone and no appropriate adult. The Tribunal Judge considered “[t]hese circumstances were less than ideal.” The Judge considered the KIU assessment not to be a Merton assessment; that the conclusion based was largely upon appearance and demeanour although some credibility concerns were raised.

The local authority’s age assessment

The Tribunal Judge considered that the assessment conducted by RBKC was again “conducted in less than ideal circumstances”. An interpreter attended by telephone, no notes were taken of the interview, it was unclear how long the interview took and whether E was asked to comment on any of the provisional concerns that the social workers had.  Noting that it was an important part of the assessment to consider credibility, the Tribunal Judge found that the assessment “went beyond the appropriate expertise of the social workers.”  One of the social workers was Sudanese and “purported to use her own knowledge to assess the credibility of E’s account.” This extended to doubting E’s linguistic knowledge; concluding that the school that E claimed to have attended was in Ethiopia and not in Sudan as E had told them and going “well beyond their remit” to dispute E’s nationality.  The Judge considered that strong wording of the conclusions relating to E’s credibility indicate that a negative view was taken on matters not strictly relevant to the assessment of E’s age.

Considering a joint statement that was prepared by the assessing social workers in the course of proceedings, the Judge considered that the “obvious difficulty” with such a statement is that it is “co-ordinated”, and it was not possible to know what the perspective of each assessor was or if that might have differed.

Third-party opinion evidence

The Judge placed weight on the E’s witnesses, noting that the witnesses from Young Roots in particular had the greatest level of interaction with E and the ability to observe her outside of formal assessment processes.  The Judge noted that although those working in youth work are not qualified social workers, they still have a safeguarding responsibility to other young people who access their services and therefore be alert to whether a young person claiming to be a child was in fact a young adult.  In respect of the evidence from the witness of the Helen Bamber Foundation, the Judge gave weight to her opinion as her opinion on age, drawn from a psychological developmental perspective.

In respect of the local authority’s social worker who considered E to be “over the age of 25”, the Tribunal found that this opinion was based on limited interaction of only three meetings, with the last being over 6 months ago. The social workers reasoning was based on physical appearance and demeanour which could have other explanations such that the social worker’s opinion carried little weight.

The Judge concluded that the post probative evidence was from the professionals from Young Roots and the Helen Bamber Foundation who had worked with E for around 2 years in addition to E’s own account.  The age assessments were limited in nature based on brief meetings and relying on unreliable factors of appearance and demeanour.  The Tribunal Judge declared E to be her claimed age such that she was a child of 17 years of age when she entered the UK and was assessed to be 5 years older than claimed.

E was represented by Basmah Sahib of Bindmans LLP Public Law and Human Rights Team, assisted by Claire HannAntonia Benfield of Doughty Street Chambers was counsel instructed with Agata Patyna instructed for the oral permission hearing.