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R(GE) (ERITREA) V BEDFORD BC [2017] EWCA Civ 1521

The Court of Appeal handed down judgement  on Wednesday 1 Nov 2017 in the Case of GE(Eritrea) v Bedford Borough Council dismissing the appeal of Bedford against the decision of Alexandra Marks QC quashing 2 age assessments conducted by local authority and determining that GE was the age she had claimed to be.

The Facts

GE arrived in the UK in May 2011 when she was 16 years of age. She was detained by the SSHD who disputed her age  at Yarlswood IRC with a view to removal on third country grounds. Judicial Review proceedings were instigated to prevent GE’s removal by the SSHD and  Bedford BC was approached for an assessment. Bedford conducted its first age assessment in August 2011 with its own social workers. The first assessment was procedurally flawed and concluded that GE was an adult. Bedford was joined as co-Defendants in the JR claim. In October 2011 Bedford conducted a second age assessment , this time opting to use “ independent social workers” from a private company. The Second assessment was also procedurally flawed and concluded that GE was an adult. The claim against  Bedford was amended to challenge both  age assessments and the relief sought was both a factual determination by the court of GE’s age and quashing orders in respect of both assessments. GE was released in Oct 2011 in to NASS accommodation.  Permission was granted for a fact  finding determination of GE’s age. The case claim before Mr Ocklton CMG sitting at deputy of the High Court. The Judge summarily dismissed the claim on the basis that GE by that date was an adult even on her own account and because she had not been in the care of Bedford during her minority, she could not reasonably obtain the relief she sought ( leaving care services) as part of her the claim. See R(GE) v SSHD & Bedford BC [2013] EWHC 2186 . GE  appealed the dismissal of her claim to the Court of Appeal .

The Court of Appeal determined that she did not fall into the statutory definition of a care leaver as she had not been in Bedford’s care, but the Judge had erred by not determining her age as until there was a lawful determination to which she was entitled , the court could not reasonably consider the question of  relief. Sir Bernard Rix at paragraph 79 of the judgement noted   “...both age assessments made by or on behalf of the Council… are attacked in these proceedings on the basis that they were unfair as well as wrong in their conclusions (see the lengthy grounds set out at paras. 94ff and 103ff of GE’s re-amended detailed statement of facts and grounds); that such allegedly unfair age assessments have also been relied on in connections with GE’s judicial review claim against SSHD which concerns the legality of her detention, albeit that claim has been stayed behind that against the Council; and that GE’s judicial review claim against the Council has obtained initial permission to apply, as it did from Walker J on 5 December 2012. In those circumstances, it seems to me that the lawfulness, as well as correctness, of those age assessments by the Council has been properly put in issue, and that GE is therefore entitled to a judicial determination of her age, in case, were such an assessment to be in her favour, she might be entitled to some remedy from the Council or the Secretary of State.” The Court of Appeal remitted the matter back to the High court for an age determination.  See GE(Eritrea) v Bedford BC [2014] EWCA Civ 1490

The claim came before  Alexandra Marks QC in  May 2015 where Bedford sought to convince the judge that any unlawfulness on the part of Bedford made no practical deference to the determination of age. The Judge did not agree stating “I have no difficulty concluding that GE’s challenge to the lawfulness of the two age assessments remains a relevant and live issue between the parties in this case. It seems to me both appropriate and necessary that the lawfulness of the two age assessments should be considered. Further, as arguable grounds have been advanced on this issue, and indeed fully argued before me, I see no reason why I should not decide it now. To the extent that permission has not already been granted, I grant it now.”. See R(GE) v SSHD & Bedford BC  [2015] EWHC 1406 (Admin). After hearing evidence from the parties the Alexandra Marks determined that GE was the age she had claimed to be  and the judge quashed both age assessments. Bedford was asked to consider providing to GE services and support it should have provided GE with, it refused and appealed to the court of appeal.

Amongst the grounds pleaded in the appeal, Bedford sought to challenge the Judge’s decision to deal with the issue of the lawfulness of the 2 age assessments. Bedford’s appeal was heard in July 2017 with Judgement handed down on Wednesday 1 Nov 2017. The panel of 3 judges LJ Ryder, LJ Underhill and LJ Thirlwall unanimously dismissed the appeal commenting that the Judge had made a holistic review of the evidence before her and that there could be no valid criticism of the findings of fact that are implicit in the judge’s reasoning, further that she had ample reason to quash both age assessments.

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