England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 August 2016

Sir Stephen Silber:

I. Introduction

1. In this application for judicial review Q ("the Claimant"), who is an Eritrean asylum seeker, challenges the determination of his age carried out by Leicestershire County Council ("the Defendant") on 25 June 2015 and which concluded that the Claimant was 21 years of age. Therefore, on the Defendant's assessment, the Claimant is currently 22 years old. The Claimant contends that his date of birth was 5 May 1999 and so he was 16 years of age at the time of his assessment but is now 17 years old.
2. The Claimant's age is significant because if he is correct about his date of birth and the Defendant erred in its age assessment, then Q was under the age of 18 when he arrived in the United Kingdom on 24 June 2015 and in consequence, his case is that on account of his age:

a) The decision of the Secretary of State for Home Department ("the Secretary of State") to certify his asylum claim under Dublin III can be impugned;

b) The certification by the Secretary of State of his Article 3 ECHR claim as "clearly unfounded" on 1 August 2015 can be challenged; and that

c) His detention from around 24 June 2015 was unlawful.

3. The Claimant in this application for judicial review challenged the Defendant's decision that he was an adult on two grounds, namely that:

a) The Defendant's age assessment was unlawful because it was not "Merton compliant" (i.e. was carried out in a procedurally unfair manner) (Ground 1); and also that

b) The conclusion of the Defendant's age assessment was incorrect (Ground 2).

4. HHJ Dight refused permission on both grounds. The Claimant renewed his application for permission and by an Order dated 22 March 2016, May J refused the Claimant permission to challenge the Defendant's decision on Ground 1, namely that the Defendant's age assessment was arguably not Merton compliant. Permission was, however, granted on Ground 2 to challenge the Defendant's factual conclusion as to age and that is the subject of this judgment. The Secretary of State has played no part in the present application.
5. In the light of the decision of the Supreme Court in R (A) v LB Croydon [2009] UKSC 8, it is common ground that it is for the Court to determine the Claimant's date of birth and age on the available evidence. This entails deciding on the balance of probabilities, whether the Claimant was or was not a child at the time of the age assessment: AE v Croydon [2012] EWCA Civ 547 at [23] and R (CJ) v Cardiff CC [2011] EWCA Civ 1590 at [22] and [23].

II. The Applicable Principles

6. The appropriate approach to assessing age is that:

a) Whilst social workers will, in the course of an age assessment, "be able to judge a putative child's general appearance and demeanour, and to make a general credibility judgment from the manner in which he answered their questions. It does not follow that the court would be bound to make the same judgments." (per Sir Anthony May P giving the judgment of the Court of Appeal in FZ v Croydon, [2011] EWCA Civ 59 at [29] with emphasis added).

b) "It would, therefore, appear that the primary focus is on the credibility of the person's evidence concerning his or her age, but that it is permissible to have regard to credibility more generally provided that, in looking at credibility more generally, the primary focus to which I have referred is not forgotten" (per Picken J in R (MVN) v London Borough of Greenwich [2015] EWHC 1942 (Admin) at [27]).

c) Decision makers considering asylum claims should take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports and expert testimony: Karanakaran v Secretary of State of the Home Department [2000] EWCA Civ 11 per Sedley LJ [2].

d) It is an error of law for a decision maker dealing with asylum claims to seek to assess the credibility of a claimant in isolation without considering other relevant evidence such as reports regarding a country that corroborate a person's claim: R v Immigration Appeal Tribunal ex p Ahmed [1999] INLR 473.

e) It is also an error of law for a decision maker dealing with asylum claims to fail to take account of relevant expert evidence when assessing credibility: Mibanga v Secretary of State for the Home Department [2005] EWCA Cave 367.

f) Allowances should be given to the fact that asylum seekers (and similarly victims of trafficking) may have problems giving coherent accounts of their history: R (N) v Secretary of State for the Home Department [2008] EWHC 1952 (Admin) at [25] per Blake J ("most people who have experience of obtaining a narrative from asylum seekers from a different language or different culture recognise that time, confidence in the interviewer and the interview process and some patience and some specific direction to pertinent questions is needed to adduce a comprehensive and adequate account").

g) "No margin of discretion is enjoyed by the local authority on this issue" per Lord Hope of Craighead in R (A) v Croydon London Borough Council (supra) [54].

7. Picken J in R (MVN) (supra) [28] regarded those matters set out in sub-paragraphs (c) to (f) of the last paragraph as "useful guidance in the context of an age assessment case". I respectfully agree.
8. In the present application, neither the Claimant nor the Defendant has the burden of proving the age. In R (CJ) v Cardiff CC (supra) [21], the Court of Appeal made it clear (with emphasis added) that there is no formal "benefit of the doubt" principle and the Court "in evaluating the evidence it may well be inappropriate to expect from the Claimant conclusive evidence of age in circumstances in which he has arrived unattended and without original identity documents.  The nature of the evaluation of evidence will depend upon the particular facts of the case." 

III. The Factual Background.

9. The Claimant arrived in the UK on 23/24 June 2015 after he had previously travelled from Eritrea through Italy where he was fingerprinted on 5 May 2015. He did not claim asylum in Italy. Leicestershire police arrested the Claimant on 24 June 2015 and he then claimed asylum claiming to be a child.
10. On 25 June 2015, the Claimant was subjected to an age assessment carried out at a police station by Mr Amarjit Singh and Mr Luke Sebit-Berridge, who were two social workers employed by the Defendant. They interviewed the Claimant in the presence of an independent person, Mr Surindepal Singh Rai. In conducting the age assessment of the Claimant, the assessors sought to elicit relevant information relating to his age, social history and education.
11. The Defendant's social workers concluded that the Claimant was considerably older than he claimed to be. In particular, they took into account what they regarded to be the Claimant's demeanour, inconsistencies in his evidence and what they considered to be his evasive conduct by refusing to answer simple questions. The social workers considered the Appellant's appearance to be also strongly supportive of the Claimant being older than he claimed to be. They also asked for the views of four members of Custody Suite Staff at the police station, who had had very limited contact with the Claimant. These four members of staff were all of the view that the Claimant was an adult. One was even of the view that the Claimant was at least 24 years old.
12. At the hearing in front of me, Mr Amarjit Singh and the Claimant gave oral evidence and they were both cross-examined. No other evidence was adduced although there was evidence relating to conscription in Eritrea.

IV. The Defendant's Assessment

13. The written assessment recorded that the Claimant stated that in answer to questions that he was fit and well to be interviewed in order that his age could be assessed. He was questioned about his family, his education, his health and his documentation as well as why, how and when he left Eritrea. The interviewers decided that the Claimant was being evasive and unwilling to answer simple questions.
14. The conclusion of the assessment (with the Claimant being referred to in the extract below as "Q") was that:

"From the information gathered from [Q] it appears he knows his date of birth because it was recorded on his baptism certificate. [Q] reported that the certificate was a white piece of paper with his name and date of birth and it was signed by the priest.

[Q] was unable to provide any other information regarding his certificate and was unable to provide the name of the Priest who signed the certificate. It was established the priest who conducted the baptism and signed the certificate is alive and known to [Q] because he informed us that the Priest still conducted the Sunday service. It is the view of the assessors that [Q] purposely withheld this information and it was clearly known to him and his body language and demeanour was that of a person who was evasive and purposely avoiding to answer simple questions. The assessors tried to elicit information but it was clear that [Q]was now choosing what information he wished to provide.

[Q]'s physical appearance along with his demeanour is of an adult and at no point did he present as a child and showed no vulnerabilities that demonstrated emotional distress, being scared or frightened. [Q]does shave, although he initially denied this. His hand and shoulders are developed and it is clear he had gone through all the stages of Tanners Stage Calculator. In addition [Q]was calm and in control and it was clear he chose what information he wished to provide and was not frightened.

[Q] reported he attended school and he was consistent with the age he started but he failed to say which year he started school. During the assessment[Q] reported that he left Eritrea when he was 16 when he had already disclosed that he started his final year of grade 10 in September 2014. This would make [Q] 15 and not 16. Although this is a minor error, [Q]changed his year of birth to 1998 which would mean he was 16 when he left. It was the view of both assessors along with other professional that [Q]was not 15, 16 or 17 when he embarked on his journey but an adult.

[Q]reported he left in December 2014 and this is not disputed but his accountability and credibility are.

[Q]reported he attended school from Grade 1 and left whilst 4 months into grade 10. However during the assessment [Q] reported he left Eritrea because he was denied an education. However when it was explained to him that he had told us he had been to school for nearly 10 years he paused and did not respond. [Q] reported that he had to leave Eritrea because he would be conscripted but when he was informed that he would still be 15 and by his own admission that people get conscripted at 17/18, he gave no reply. It is our view that the reason he was being asked to conscript, if this story is to believed, is that he would be 18. However [Q] chose to be guarded so it is difficult to accept his story that would make him a child. The assessors view and along with other professional he is an adult to be at the very least 19.

The assessors tried to elicit information but the view of the assessors was that [Q] had been coached and he was not willing to give information that would allow us to establish his age.

The views of other professional[sic] i.e. police and medical nurse were obtained and they deemed [Q] to be an adult and not a child. They placed [Q]to be above the age of 18 and the nurse placing him no younger than 19. Their views are recorded above.

The assessors plan was to conduct an age assessment with [Q]engaging, however it was clear that he engaged on his terms and provided information when he wished to do so.

[Q]reports that his date of birth is 05^th May 1999. This would place [Q] in year 11 of the schooling system. It is clear from [Q's] physical appearance that he is not a child who belongs at school, potentially putting other children at risk.

The assessors also deemed [Q] not to be a child under the age of 18 and placed him to be no younger than 21. Amarjit^[1]'s view was that [Q] was approximately 24 whereas Luke^[2] thought [Q] was approximately 20/21. Both workers agreed that [Q] was not a child but an adult who is at least 21 years old.

This was also the view of several custody staff who deal with asylum seekers and British and resident nationals who go through police custody. Not one person deemed [Q] to be a child as defined by British law.

Both assessors are aware of the decision they made had carefully considered placing [Q] into the adult system for support. They have considered the Children Safeguarding factor. Both assessors deemed they were not placing a child into an adult system and that [Q]was clearly an adult.

Amarjit feedback and explained to [Q]our reasons and decisions as to why he assessed to be an adult. [Q] was given the opportunity to comment as to why and how we reached our decision. [Q]gave no response and shook our hands and returned back to the custody suite before refusing to see the nurse.

It was explained to [Q]that he had the right to challenge his age assessment should he wish to do so."

V. The Claimant's evidence

15. In response to the assessment, the Claimant brought the present proceedings in which he served a witness statement made on 31^st May 2016, which I will now summarise. Other matters arose when he was giving evidence and I will return to consider them. The Claimant explained that he was born on 5 May 1999 in Eritrea and that he is an Orthodox Christian, who speaks Tigrinya, which is his native language. His evidence is that his parents are deceased and that his father died when he was about 7 or 8 years old while his mother died about 4 years after his father when he was about 11 or 12 years old.
16. The Claimant stated that he has two older half-sisters, one of them X was then 26 years old and another half-sister who was then 23 years old as well as a younger sister. His elder sisters each have one child. He has no brothers. When the Claimant's father died, the Claimant said that he was living with his mother and his three siblings in their family home. After the Claimant's mother died, his elder half-sisters took over responsibility for caring for him and his younger sister. They all stayed in their old family house after their mother's death, but then they moved to a new house.
17. The Claimant says that he first learned his age when he was starting Junior School and he was 11 years old. Before that time, he did not know his age and it was not important because his family never celebrated birthdays and indeed no one he knew celebrated birthdays. According to the Claimant, when pupils register for Junior School, they have to give their age and they are required to show the school something to verify their identity. The Claimant went to register at the Junior School with his half-sister X who informed the school that the Claimant was 11years old and that is how he learned his age. The Claimant explained that X had with her a piece of paper and this was used to facilitate the Claimant's registration.
18. The belief of the Claimant was that this piece of paper, which X was holding, was his baptism certificate, but she did not show it to him and he did not look at it. His evidence is that he does not know where this piece of paper was at the time when he made his statement and that he has not seen it again. He explained that Eritreans are not issued with any identity documents.
19. The Claimant says that he only learned his actual date of birth, as opposed to his actual age, after he had left Eritrea and when in France, he telephoned his half-sister to obtain his date of birth. He explained that the reason why he did this was that the people he met in France, who had already been to the United Kingdom, had told the Claimant that he would be asked his date of birth in the United Kingdom and so he would need to know it. At that time, his evidence is that he only knew that he was 16 years old. When he spoke to his half-sister X by telephone, she only knew his age was 16, but that she did not know his date of birth. The Claimant said that his half-sister said she would check his date of birth with the Church and that she would come back to him in a while. He said that she duly asked the appropriate church and they told her that the Claimant's date of birth was 5 May 1999; she then passed on this information to the Claimant.
20. The Claimant said that he started school when he was 6 years old. The schooling system in Eritrea requires pupils to attend Elementary school, and thereafter Junior School and finally High School. Education at Elementary School starts when children are around 5 years of age and that they move on to Junior school when they are around 10 or 11 years old before attending High School from the ages of 14 to 18. The school year in Eritrea runs from September to June in each year. The Claimant says that having completed Junior School in Grade 8, he went to High School at the age of 14 in Grade 9.
21. The Claimant explained that he had decided that he had to leave Eritrea because he did not want to do military service and so he stopped going to High School about 4 months after he started Grade 10 when he was 15 years. He then left Eritrea around a month after he stopped going to school. I should interject to say that would mean that he left in Eritrea four months after the start of Year 10 which would be in about January 2015.
22. The Claimant explained that he had deliberately dropped out of school because if he had finished Grade 10, he would then have been put into Grade 11, which would have meant that he would then have ended up in Sawa, which is education and military service combined. That is because when students finish Grade 11, the Eritrean authorities force them to go to military school, Sawa, for Grade 12. He explained that at Sawa, students continue their studies for the first 6 months before going for military training for about 3 months and then they are sent to serve in the military.
23. The Claimant's evidence was that in Eritrea, it is common knowledge that everybody is forced to undertake military service from the age of 17 or 18 depending on how old they are when they complete their studies. The Claimant knew from his sister's partners that the conditions for conscripts were very tough. He explained that he feared military service particularly because first, he would be taken a long way away from his family, second, he would not then have contact with his family, third, he would not be given proper food, fourth, he would not receive proper medical treatment when sick, and fifth, if he made any kind of objection, he would be arrested. The Claimant was also concerned about the use of beatings on conscripts and the lengthy working hours for prisoners. He said that all these matters made him so scared and worried that he wanted to leave Eritrea because he was scared of being made to do military service.
24. The Claimant said that he left in Grade 10, at the time when he did, as he had three friends who were also leaving and they had already spoken to an agent who could get them across the border out of Eritrea. According to the Claimant, these friends knew they would have to do military service, but they had deliberately been failing their classes so that they could put off moving up a Grade and then being sent to Sawa. The Claimant said that he spoke to his two elder half-sisters, who agreed that he should leave Eritrea to avoid military service. His evidence was that an arrangement had been made with the agent by his friends that they would only pay him through one of their friends once they had arrived in the Sudan. The Claimant said that he had made arrangements for an individual to fund his trip.
25. The Claimant explained that about a month after he left school, he left Eritrea which he believes was in January/February 2015, but he said that he has a poor memory and that he cannot be sure of the date. He says that he travelled by car with his friends and with an agent from Eritrea to Sudan and that journey lasted around 4 days. The Claimant said that he was scared that he would be found by the Eritrean authorities.
26. He believes that he spent about 1-2 months in the Sudan and that he did nothing during this time other than waiting to carry on with his journey. His evidence was that he finally left Sudan, together with about 100 other people and they were being taken by the agent to Libya which was a journey lasting around 5-6 days.
27. According to the Claimant, he then spent around 1-2 months in Libya where he just waited for the agents to tell him when he could move on. Eventually, he went by sea from Tripoli to Italy on a boat with about 350 migrants. He says that a bigger boat came with the Italian authorities on board and he and his fellow passengers were helped to Sicily in Italy. The Claimant stated that he was put straight into a bus and he was then driven to Milan where he and a few others were taken by small cars to Pavia. While there, the Claimant says that the police took his fingerprints and they noted his name, but they did not ask why he was in Italy.
28. The Claimant said that he went back to Milan where there were many migrants living on the streets and he slept near a train station, which is where many other people were sleeping. He said that he felt frustrated as he did not know what was happening and so he wanted to go to England because he spoke a little English. His evidence was after about 3 weeks, he then went by train to a place called "the Jungle" in Calais and he stayed there for around 3 to 4 weeks as he waited for the opportunity to get into a lorry to take him to the UK. The Claimant said that conditions in "the Jungle" were very bad with inadequate food.
29. The Claimant said that eventually he travelled to UK in the back of a lorry, but he climbed out arriving in the United Kingdom on 24 or 25 June 2015. After the Claimant and others got out of the lorry, the police came and they arrested him and the four others who had arrived in the United Kingdom with him in the back of the lorry.
30. The police questioned him briefly and he told them that he was 16. The Claimant said that he explained to them that he wanted to claim asylum because of his fear of being subject to forced conscription into the military in Eritrea and also for being punished for leaving Eritrea illegally. The police gave the Claimant some food and then he slept for a few hours in a dirty cell in the police station which had an open toilet inside it. The Claimant said that he was scared and that he was worried as he had never been arrested before. Some hours later, he was then interviewed by Social Services about his age.
31. This interview took place in a room in the police station and the Claimant said that he was afraid because he did not know what was happening as he thought he was in trouble. The Claimant explained that he was also very tired from the journey and that he was still hungry. His evidence was that he "found the interview difficult because I was so tired".
32. In the interview, there were according to the Claimant two men, one black man and one Pakistani man who interviewed him. The man from Pakistan was the one who mainly asked questions and he was stern.
33. The Claimant said that he had subsequently been told by his solicitor that the age assessment record states that there were periods in the interview when the Claimant was quiet in response to questions, but he pointed out that he was a quiet person. He explained that he does not remember acting in this way as he tried to answer all their questions and if he did not understand the questions, he said so. The Claimant said that he was very tired throughout the interview because of his journey from France to the United Kingdom. The Claimant said he told the interviewers that he was tired during the interview and the interviewers gave him a short break to go out and rest for a short time. He says that he just sat outside the room and he then went back in.
34. The Claimant said that he did not remember being asked if he was fit and well in the interview. He explained that he did not know that he could say he was too tired for the interview or that he had any say or choice in the matter. He said that his approach was that if these men wanted to talk to him, he would have to do so.
35. The Claimant has explained that he has and had a poor memory and that it is difficult for him to remember the interview with Social Services, which took almost a year before the time when he made his witness statement. He did recognise some of the subjects discussed, but he did not remember everything clearly.
36. The Claimant does remember being asked if he shaved and he said "no" as he had never shaved, which was true. He does not remember the conversation in detail about shaving other than that point. He explained that he only started shaving a few months before producing his statement in May 2016 and then he only shaved a little patch of hair which has grown under his chin. He stated that he did not recall telling the interviewers that he shaved, and he did not believe that he did, because he did not do so until recently before making his witness statement.
37. The Claimant says that he has been told that it is stated in the age assessment that he was 170cm tall, but that is not correct as he is 162 or 163cm tall which is what he was told when he had a health check at the GP, White House Centre, in Huddersfield.
38. According to the Claimant when in the interview, he spoke about the baptism certificate that was because he wanted to explain how he knew his date of birth and how he could prove that he was born in 1999. He explained that every child in Eritrea, who is baptised, can obtain a baptism certificate from their church as their baptism is registered with the church; it is from this record that a person can obtain a baptism certificate with his or her date of birth on it. The Claimant said that was what he was trying to say to the interviewers at the age assessment interview.
39. So the Claimant explained that he must have a birth certificate because he was baptised in the church and he was registered in Junior School, but he has never held it in his hand or looked at it. From seeing a friend's baptism certificate, the Claimant explained that he knew they were white and that they were signed by a priest at the church. That, he said was what he was trying to say, not that he knew exactly who signed his baptism certificate because he was too young to know who baptised him.
40. The Claimant says that he does not understand what is written in the age assessment about the priest who signed the certificate being alive and still conducting sermons. He does not recall this being covered like that in his assessment as the interviewer asked him to name a priest at his church and he replied that the only priest whose name he could remember was Z. He said that he explained that there were many priests at this church and because of this, he did not know their names as they change over time. He also explained that Z was alive and still gave sermons at the time when he left Eritrea, but he did not know the present situation; so he believes the interviewer has confused his information.
41. The Claimant said that since his interview, he asked his-half sister, X, about his birth certificate and he asked her if she has it and if she could send it to him. He stated that she told him that she did not know where the old certificate was and it had been lost when they moved house.
42. The Claimant explained that he remembers being asked when he started school and he replied that this occurred when he was 6 years old, but he does not remember being asked in which year this occurred. He remembers also being asked what year he was in when he left Eritrea and he said Grade 10. He did not remember being asked how old he was when he started Grade 10 or when he left.
43. His evidence was that he did not say that his date of birth was 5 May 1998, but that it was in 1999 and he does not know why the written record says that he said that it occurred in 1998. The Claimant says that he was told by his sister that his date of birth was 5 May 1999, and this is what he told the interviewers.
44. He remembers being asked about his half-sisters, the work they did and how they looked after their children. He said that he explained that they both worked and that they both took care of the children taking turns caring for the children and working. In other words they ensured that only one half-sister was working at a time with the other half-sister then caring for the children. This he says is what he was trying to explain to the interviewers.
45. The Claimant stated that he told the interviewers that he ran away from Eritrea to avoid going to Sawa and the military to which the interviewer said that students were only taken into Sawa when they were 17 or 18. He said that he disagreed as it was not necessary for a person to be 17 or 18 to go to Sawa as this occurred at whatever age the person concerned finished Grade 11.
46. The Claimant explained that when he was in Grade 10, he feared going to Sawa in Year 11 as it was more difficult to run away in Grade 11 than when he did in Grade 10 because, during Grade 11 the authorities sit down with the director of the school and they take the names of the students in preparation for Grade 12 and Sawa. So the Claimant said that when he had the opportunity to leave Eritrea in Year 10, he took that opportunity. The Claimant said that he did not say he was asked to conscript, but everyone knew they would be sent to Sawa and that is why he left.
47. The Claimant said that towards the end of the interview, he recalled being taken out of the interview into the reception of the police station and he was told to sit on a stool in the middle of it. The interviewers stood either side of him along with the interpreter and the other man. The Claimant said that there were around 5-6 officers in the reception all standing together. Some were in uniform and some were not. He stated that the interviewers asked the police one by one what age they thought the Claimant was. The interpreter was there telling him what these people said. The Claimant said that he "felt powerless and he was afraid, but there was nothing I could do".
48. According to the Claimant, at the end of the interview he was told he was over 18, but he did not say anything because he was "tired, confused and afraid of being in the police station and of being sent back to Italy". He was confused as to why they did not believe him about his age, but he could not do anything about it as he had no power and "so I just gave up". The Claimant explained that he felt bad about this because he had told his interviewers his real age but that they did not believe him.
49. After a couple of days, the Claimant said that he was transferred to Morton Hall detention centre.

VI. The Claimant's Case

50. Mr Taimour Lay, counsel for the Claimant, contends that the Defendant's assessment is wrong and he relies on a number of factors, including that the Defendant has failed to give an adequate or any proper explanation for the loss of Mr Singh's notes of his interview^[3] and that the interview was conducted in a police station. Apart from being critical of the overreliance by the assessors on the Claimant's demeanour and physical appearance, Mr Lay also submits that the pro-forma and the assessment cannot be relied on as an accurate recording of the interview, particularly given the failure of Mr Singh to recall the interview itself.
51. Mr Lay attaches importance to the absence of evidence from the second social worker that was present at the interview and the failure of Mr Singh "to explore the chronological age in an ordered way".
52. In answer to the claim that the Claimant has been inconsistent in his evidence, Mr Lay submits that it is necessary to distinguish between inconsistencies, which are relevant to age, and those, which are not. His contention is first, that many of the inconsistencies relied on by Mr Andrew Sharland, counsel for the Defendant (such as those relating to the length of his journey to the UK from Eritrea) are not relevant to age assessment issues and second, that in any event allowances should be made for the fact that asylum seekers, such as the Claimant, may have problems giving coherent accounts of their history especially where he had recently arrived in this country after a long and difficult journey. It is said that the Claimant's lapses into silence, when read in the context of the questions he was being asked, indicate "a tired, vulnerable, bewildered child doing [his] best in a difficult environment". He complains that the Defendant's assessment failed to take into account this factor or the fact that students in the middle of Grade 10 would fear conscription.
53. Mr Lay says that the evidence of the Claimant was clear as to chronology as he explained he decided to leave Eritrea when he had the chance to do so and he was anxious about the imminence of registration for military service at least during the following school year. It was not disputed that children were conscripted in Eritrea and that a child being concerned about conscription would be reasonable to be anxious in these circumstances.
54. His case is that I should accept what the Claimant said about his reasons for leaving Eritrea and his age at the time when he left.

VII. The Defendant's case

55. Mr Andrew Sharland contends that the Defendant's assessment is correct and that I should accept it and that I should reject the Claimant's case which he says is inconsistent and is not corroborated by documentary or other evidence. He points out that the Claimant has not called any evidence from individuals with whom he had come into contact over the last year since his arrival in the United Kingdom and who are of the view that he is a child. He also relies on the fact that some of the custody staff at the police station considered that the Claimant was an adult, which was a conclusion based on his appearance.
56. Mr Sharland relies on the conclusions of the Defendant's assessment which he contends show why the Claimant is said not to be credible. They include the Claimant's initial untrue denial that he shaved; his inconsistent evidence as to the year of his birth as he originally claimed to have been born in 1999, but later claimed that his year of birth was 1998; and his inconsistent evidence as to his family, their income and how many sisters worked. He also relies on the alleged inability of the Appellant to recall the name of the priest who allegedly signed the baptism certificate although he asserted that he attended the church where this priest work on a weekly basis. The case for the Defendant also relies on the demeanour of the Claimant during the assessment.
57. Mr Sharland attaches substantial importance to the changes in the Claimant's account relating to how he learnt his date of birth. In his witness statement, the Claimant stated that he found out his date of birth when he spoke to his older half-sister when he was in France. He said that that he asked her for his date of birth and that she did not know it. His evidence was that she then went to the church and found it out and that she subsequently told him that his date of birth was 5 May 1999. This indicates that the Claimant had two telephone conversations, but under cross-examination he stated that he only had one telephone conversation with his half-sister and that it lasted 5-10 minutes. He thus cannot have found out his date of birth in the manner he suggests as this account involved 2 telephone conversations a short period apart.
58. There are other inconsistencies, according to Mr Sharland in the Claimant's evidence relied on by Mr Sharland relating to the number of times he passed a certain church in Ethiopia each day when returning from Primary School, the schools he attended, details of his travel from Eritrea to England and who funded his trip.
59. Mr Sharland also points out that the Claimant said that he would not be conscripted until he was 17 which would be at the start of Year 12 which would have been a year and a half after he left Eritrea.
60. In summary, the case for the Defendant was that a very thorough and careful case assessment was carried out and that its conclusion should be accepted. He points out that although the final decision as to whether the Claimant is or is not a child is for the court to determine, significant weight will usually be given to the views of qualified social workers particularly where they have carried out a procedurally fair assessment.

VIII. Discussion

61. There are number of core sub-issues to be considered as being relevant to the exercise of ascertaining the Claimant's date of birth in the light of his account that he fled Eritrea when he was in Grade 10 because of his fear of being conscripted and then suffering cruel and inhumane treatment when conscripted. Those core sub-issues include first, the attitude to conscription of adolescents in Eritrea; second, when conscription occurs in Eritrea; third, the reliability of the Claimant's evidence on his age; fourth, the reliability of what the Claimant says he was told about his age and date of birth; and fifth, whether the Claimant was in Grade 10 when he left Eritrea and whether he did so in order to avoid the consequences of being conscripted.
62. I also bear in mind that the "Practice Guidelines for Age Assessment of Young Unaccompanied Asylum Seekers"("the Guidelines") is relevant to the age assessment exercise in this case and it states, among other things, that

"…Attention should be paid to the level of tiredness, trauma, bewilderment and anxiety that may be present for the young person. The ethnicity, culture and customs of the person being assessed must be a key focus throughout the assessment. It is also important to be mindful of the 'coaching' that the asylum seeker may have had prior to arrival, in how to behave and what to say."

(i) The Attitude to Conscription of Adolescents in Eritrea

63. My starting point was to consider how conscripts were treated in Eritrea and the attitude to conscription of adolescents in Eritrea; that was an integral part of the Claimant's case is that he fled Eritrea to avoid being conscripted. Mr. Singh said that he was aware that children were conscripted in Eritrea and that a child being concerned about his imminent conscription would be reasonable to be anxious about it. I have concluded that this is to be a serious understatement as many young Eritreans are, and were, terrified of being conscripted and in consequence they fled the country to avoid conscription. I have reached that conclusion on the basis of:

a) The Office of the United Nations High Commissioner for Human Rights (OHCR)'s "Report of the Commission of Inquiry on Human Rights in Eritrea, 4 June 2015", which pointed out^[4] that "conditions and treatment during military training and service are harsh. They include lack of adequate food, water, hygienic facilities, accommodation and medical services that may result in death, severe disabilities or psychological and physiological long-term effects. Conscripts are routinely deprived of their rights to freedom of expression, movement and religion. They are systematically subjected to intentional punishment and ill treatment aimed at inflicting severe pain. In many cases, this constitutes torture ";

b) This report, which also stated (with emphasis added) that^[5] "National Service as implemented by the Eritrean authorities involves the systemic violation of an array of human rights on a scope and scale seldom witnessed elsewhere in the world. In particular, the commission finds that national service violates the rights of Eritreans to life; to liberty and security; not to be tortured or subject to cruel, inhumane or degrading treatment; to be treated with humanity and inherent dignity of the human person while deprived of liberty; to enjoy freedom of thought. Conscience, religion, expression and movement; to privacy and family life: to education…not to be subjected to forced labour..It also violates the right of children not to be forcibly enrolled in armed forces".

c) The OHCR Report of the Detailed Findings of the Commission of Inquiry on Human Rights in Eritrea 4 June 2015, which recorded that "The Commission considers that the practices documented in the context of national service, starting with the enrolment of conscripts, conditions and treatment during national service and service up to the lack of formal release from national service demonstrates patterns of systemic human rights violations". It proceeds to refer to violence during military training in the army that amounted to torture cannot be justified as well that conscript's lack of adequate food, access to water, access to hygienic facilities and adequate accommodation during military training and service constitutes cruel, inhuman or degrading treatment.

d) The Human Rights Watch's "World Report 2015: Eritrea" 29 January 2015 which stated that "the threat of indefinite military conscription compels thousands of young Eritreans to flee their country". It then referred to 11 members of the national football team fleeing while in Kenya in December 2013.

(ii) When does Conscription Occur in Eritrea?

64. The next issue is to determine at what age Eritreans are liable to be conscripted and:

a) The European Asylum Support Office (EASO) Country of Origin Information Report Eritrea Country Focus, May 2015 points out that^[6] "Eritrean pupils are called to register for the 12^th school year by their local (kebab) administration during their 11^th school year" It was also pointed out that "According to a leaked Eritrean military report, "one third of those drafted during the 21^st recruitment round in 2010 were under 18";

b) The Home Office's own Country Information, dated March 2015, stated that:

i) 2.6.2 An Africa Today article by Tekle M. Woldemikael in Winter 2013, entitled "Introduction to Special Issue: Postliberation Eritrea" explains that:

"Even boys and girls are mandated to enter military-training camps for at least one year when they reach the age of sixteen. If they have finished tenth grade, they are required to finish their eleventh grade in a military camp called Sawa, where they receive military training in addition to their formal, non-military education"; and that

ii) 2.6.3 The United States' State Department 'Trafficking in Persons Report 2014', published on 20 June 2014 stated that:

"Though the government made an effort to ensure that no persons under 18 engaged in military training at Sawa, it was difficult to determine whether all those performing the military training component had reached 18 years of age."

c) According to the report "Eritrea: Military service, including age of recruitment, length of service, grounds for exemption, penalties for desertion from and evasion of military service, and availability of alternative service", 4 September 2012 Research Directorate, Immigration and Refugee Board of Canada, Ottawa, it is stated that^[7]:

"According to the University of Leiden academic, between 15,000 and 20,000 students write the grade 11 exams at the school in Sawa military camp every year, where they are conscripted into the national service (Bozzini 2011, 94)"(emphasis added)

d) The Home Office Country Information note, updated in September 2015^[8], included a paragraph from a May 2015 report from the European Asylum Support Office stating (with emphasis added) that^[9]:

"Eritrean pupils are called to register for the 12th school year by their local (kebabi) administration during their 11th school year. Following registration, they are sent a letter telling them the time and location of their departure for Sawa."

e) The Human Rights Watch "World Report 2015: Eritrea" 29 January 2015 reported that "while most young Eritreans begin military training for the last year of high school, children as young as 15 are sometimes conscripted".

65. These extracts provide clear support for the view that those in Grade 10 might well be sufficiently worried about the imminent prospect of being recruited into Sawa in Grade 11 that they might well be making preparations for leaving Eritrea while in Grade 10. The Claimant's evidence is consistent with this, but this is another matter that does not appear to have been considered or taken into account by Mr. Singh and his colleague.
66. Pausing at this point, this material shows that a person in the Claimant's position, if in Grade 10 in 2015, might well have taken steps to flee Eritrea, but that leaves open the crucial issues of first, how old the Claimant was when he left in December 2014 or January 2015 and second, whether the prospect of being conscripted was the reason why the Claimant left Eritrea and that entail considering whether he was in Grade 10 when he left. As I have explained, the case for the Defendant is that the Claimant was over 21 years of age when he left Eritrea, while the Claimant contends that he was born on 5 May 1999 and that he was in Grade 10 when he left Eritrea to avoid conscription. The Claimant's case turns on what he was told about his age and the reliability of his evidence, which is the sub-issue to which I now turn.

(iii) The reliability of the Claimant's evidence on his age

67. It is appropriate to deal with some matters relied on by the Defendant as showing that the Claimant's evidence on his age is incorrect. First, Mr. Sharland contends that it is "very unusual" for a person in the Claimant's position not to adduce evidence from individuals with whom he had come into contact over the last year and who believed him to be a child. It is noteworthy in the light of that submission that the Defendant itself did not call or adduce evidence at the hearing in front of me from people who had seen the Claimant and who had concluded that he was not a child. Even if, which I do not believe to be the case, the failure of the Claimant to adduce evidence from individuals with whom he had come into contact over the last year and who believed him to be a child was a "very unusual" omission, I do not consider that this should mean that the Claimant should be disbelieved. After all, there is no requirement that the evidence of a person in the Claimant's position has to be corroborated.
68. Second, the Defendant's case attaches importance to the fact that at the end of the age assessment interview, four members of the custody suite staff who had seen the Claimant "were asked for their views". They "deemed [Q] to be an adult in the region of 19-24 years". I have no idea what these people were told by Mr. Singh and/or his colleague about the Claimant or what experience these members of the custody suite staff had of age assessment or what training they had received on carrying out age assessment exercises. These members of the custody suite staff who assessed the Claimant's age have not made any witness statements and they have not been cross-examined. In those circumstances, I am unable to attach any weight to their conclusions.
69. Third and most importantly, it is appropriate now to deal with the general and main thrust of the Defendant's case, which is that the Claimant is not a reliable or an honest witness. I deal with this on the basis that my conclusion based on having seen the Claimant giving evidence and being cross-examined is that he is neither particularly intelligent nor well educated. I have to decide if I should accept the conclusion reached at the end of the age assessment interview. As I have explained the conclusion of the assessment that the Claimant should not be believed was influenced by the fact that the Claimant's "body language and demeanour was that of a person who was evasive and purposely avoiding to answer simple questions" as well as the alleged inconsistencies in his evidence to which I and Mr. Sharland have referred.
70. The Claimant's case is that when he was assessed by Mr. Singh and his colleague, he was "very tired from the long journey". Indeed, it is always of great importance to determine whether a person who has been interviewed was fit and able to deal with an interview, especially if the result of it might influence the course of the rest of the interviewee's life and if far-reaching questions about his or her life were being put to the Claimant . In this case, it is not disputed that the Claimant was being interviewed after a long journey in which he had been brought from Calais to Leicestershire in the back of a lorry with four other people and after he had been arrested when he got out of the lorry. In addition, after being arrested, the evidence is that the Claimant was put in a dirty cell in which he only slept for a few hours before being interviewed. Having seen and heard the Claimant giving evidence, I accept his evidence that at the time of his interview, he was "very tired from the long journey" and that he "found the interview difficult because I was so tired" as well as being "afraid as I didn't know what was happening".
71. I also accept first, that the Claimant told the social workers at his assessment interview that he was tired, that he was probably asked if he was fit and well and that is probably why he was given a short break, and second, that he did not know that that he could say that he was too tired to be interviewed or that he had any say or choice in the matter. It has not been proved either that the Claimant was told that he could postpone the interview or if the Claimant was asked if he wanted it to be postponed because he was too tired. So the Claimant had no option but to do his best in this crucial interview especially as he did not know that he could say that he was too tired to be interviewed at that time. Nobody had advised him about this. As I have explained, the Guidelines require that in age assessment interviews, "attention should be paid to the level of tiredness". The assessment does not indicate that it was taken into account although I have found that the Claimant was very tired.
72. Another factor of importance is that the Claimant had never previously been arrested before the time when he was arrested by the Leicestershire police on leaving the lorry with the result that he found the whole experience of being arrested made him "scared, worried and upset". It is significant that the interview took place in the police station and the Claimant said that that fact made him feel that he was in trouble, which is evidence that I accept. These factors and the Claimant's fatigue must have prevented or inhibited the Claimant from answering questions properly and from putting forward his case most effectively.
73. I now have to ascertain if I should draw inferences adverse to the Claimant from his silences and from his uncommunicative behaviour at the age assessment interview. A very important fact is that there was a marked difference between, on the one hand, the cooperative and candid way in which the Claimant responded to patient and clear questioning in Court and, on the other hand, the alleged lapses into silence and uncommunicative behaviour in the age assessment interview which in my view were a consequence of the Claimant being tired and frightened when interviewed. I have concluded that the Claimant's silences and uncommunicative behaviour during the age assessment interviews should not be regarded as a sign of lack of candour, but instead they were a consequence of him being not surprisingly vey tired and very scared after his long journey. Having carefully considered the Claimant's demeanour and evidence when examined and cross-examined, I have also come to the clear conclusion that he was not evasive, but rather that he was a reliable witness on the basic core issues in this matter relating to what he was told about his age and indeed why he wanted to leave Eritrea.
74. I also considered if I should make substantial allowance for some of the discrepancies in the Claimant's age assessment interview such as the length of time taken by different parts of his journey from Eritrea and the number of schools he attended. I will not draw any serious inferences adverse to the Claimant from his failure to be consistent on those matters in his interview and his inability to answer some questions. In reaching that conclusion, I have borne in mind the obvious need for allowances to be made for the fact that, as I have explained, it has been recognized that asylum seekers might have problems giving coherent accounts of their history^[10] when appraising the evidence of the person whose age is being assessed and also my conclusions on the Claimant's intelligence and memory.
75. I have also considered, but unhesitatingly rejected as totally misconceived, the conclusion of Mr. Singh and his colleague that the Claimant "had been coached", especially as, I have explained, he emerged largely unscathed from an impressive and skilful cross-examination and there was nothing whatsoever to support the contention that he had been coached. In so far as the Defendant seek to rely on the Claimant's lapses into silence as being signs that his coaching has not given him the answer, I must repeat that there was a marked difference between, on the one hand, the cooperative way in which the Claimant responded to patient and clear questioning in Court and, on the other hand, the alleged lapses into silence in the age assessment interview which show him as being tired and frightened when interviewed. So these lapses into silence do not show that the Claimant was being coached especially as I have concluded from having heard and seen the Claimant in the witness box that he was an honest and reliable witness on core issues relating to his age.

(iv) How reliable is what the Claimant has stated he was told about his age and his date of birth?

76. The next issue to be considered is the reliability of the Claimant's evidence about what he was told about his age and he relies on two matters. First, there is his evidence that when he registered for Junior School, he was to go into Grade 6 and his half-sister X produced his baptism certificate that showed that he was then 11. He was unable to name the particular priest, who signed the certificate.
77. The Claimant has been criticised for his inability to name the particular priest who signed the Claimant's baptism certificate. I am not prepared to accept these points for a number of reasons. First, his baptism occurred when he was a baby; this was a matter in respect of which he would have no memory. Second, there were a number of priests who could have signed the baptism certificate of whom the Claimant named one. Third, the Claimant did not see the certificate and he has never contended that he has seen it. Fourth, as I have explained, the Claimant is not particularly intelligent and he does not have a good memory.
78. Finally, having seen the Claimant being carefully and skilfully cross-examined, I reached the clear conclusion that when he gave information on what he was told about his age when he registered at the Junior School, he was honest and I should rely on his evidence even after taking account of the points relied on by Mr. Sharland. This would support his assertion that he was 15 year of age when he left Eritrea, because if he was 11 when he started Grade 6, he would have been 15 when he started Year 10 and when he left Eritrea in the December/ January of that year.
79. The second source of the Claimant's evidence concerning his age is, as I have explained, that his half-sister X to whom he spoke when he was in Calais in order to find out his date of birth. She told him that it was 5 May 1999. Mr. Sharland relies on the fact that the Age Assessment interview states that the Claimant said he was born on 5 May 1998. The Claimant has explained in his witness statement that he did not say that he was born on 5 May 1998 as "I was told by my sister my date of birth, 5 May 1999 and that is what I told them [i.e. my interviewers]".
80. I have come to the conclusion that I should accept the Claimant's evidence on this issue for a number of reasons. First, in the light of the Claimant's account set out in his witness statement and which rejects Mr. Singh's account on this important issue, I would have expected that at that point Mr. Singh's account could, and indeed, would have been supported by a witness statement from his fellow interviewer. Surprisingly, there is no evidence from him and no explanation given for the absence of this evidence or of his notes. Second, Mr. Singh's notes have been destroyed and this deprives Mr. Lay of the opportunity of checking what Ms Singh's contemporaneous record states. Third, Mr. Singh's recollection of the assessment interview is vague and unimpressive, as he does not appear to have any recollection of it other than what is in the typed account. Fourth, and perhaps most importantly, the evidence of the Claimant was clear and cogent on this point.
81. Mr. Sharland also contends that I should not accept the Claimant's account of how he claimed to know his date of birth as in his witness statement; he said that he had two telephone conversations with his sister on this subject. The first was when he asked her his date of birth and she explained that she did not know it and she then went to the church and told the Claimant on the phone that his date of birth was 5 May 1999. Mr. Sharland's point is that when cross-examined, the Claimant said twice that he had one conversation with his sister lasting 5 to 10 minutes. So he contends that the Claimant cannot have found his date of birth in the manner he suggests as that entailed two telephone conversations some time apart. I do not agree because I am satisfied that the thrust of his evidence remains which is that he was told that his date of birth was 5 May 1999, although he might have been confused as to whether there was one conversation on the day concerned or during two conversations on the same day.
82. In concluding that I should accept the evidence that the Claimant was told that his date of birth was 5 May 1999, I have not overlooked the alleged inconsistencies in the Claimant's evidence. I believe that his evidence was that he was very tired at the time of his assessment interview as a result of his long journey to this country and particularly as being one of a number of people who came from Calais to Leicestershire in the back of a lorry before being placed in a dirty cell for the night before being interviewed. He has not got a good memory as he explains, but I accept his evidence as being correct on the critical issues relating to his evidence on first, what he was told about his age when he started Junior School, and second, that he was told that his date of birth was 5 May 1999. Having watched and heard him give evidence and being skilfully cross-examined, I am quite satisfied that he was an honest witness whose evidence I could accept on these matters. The quality of his evidence was much superior to that of Mr. Singh who had no real recollection of the relevant matters.

(v) Was the Claimant in Grade 10 when he left Eritrea and did he leave to avoid conscription?

83. As I have explained, the thrust of the Claimant's case is that he was in Grade 10 when he decided to leave Eritrea to avoid conscription. Because of the importance of this issue, I have considered with great care if it was true. I have come to the clear conclusion having seen and heard the Claimant giving evidence that it is true not merely because I consider that the Claimant was a truthful witness, but also because, as I have explained, there was much supporting evidence that young Eritreans were terrified of being conscripted and also that at the end of Grade 10, the first steps were being taken to recruit those who will be conscripted.
84. This conclusion that he was in Grade 10 provides some corroboration for the Claimant's assertions about the occasion when he was told his age when he started Junior School and the telephone conversation when he was told by X of his date of birth.
85. I should add that although I am not an expert on assessing age, the Claimant appeared to my untutored eye as someone who might well have been born in May 1999, but I did not take that factor into account in determining the Claimant's age. I appreciate that my finding that Q was born on 5 May 1999 entails rejecting the view of the Defendant's social workers, but as Sir Anthony May P explained in FZ v Croydon (supra) "it does not follow that the court would be bound to make the same judgments [as the social workers]".

Conclusion

86. I have had the advantage of seeing and hearing the Claimant and Mr. Singh being cross-examined and after taking into account all their evidence and the submissions of Counsel, I have come to the clear conclusion that:

a) The Claimant was born on 5 May 1999;

b) The Claimant was told correctly that he was 11 years old when he started Grade 6 and that he would have been 15 years old when he started Grade 10;

c) He fled Eritrea when in Grade 10 in order to avoid Military Service which he would have been required to do after Sawa; and

d) There was good reason for the Claimant to be fearful of conscription bearing in mind that the Office of the United Nations High Commissioner for Human Rights (OHCR) "Report of the commission of inquiry on human rights in Eritrea, 4 June 2015" considered that "National Service as implemented by the Eritrean authorities involves the systemic violation of an array of human rights on a scope and scale seldom witnessed elsewhere in the world."

Note 1   Mr. Amarjit Singh    [Back]

Note 2   Mr. Luke Sebit-Burridge    [Back]

Note 3   Emma Bean, solicitor for the Defendant wrote to the Claimant’s solicitor on 12 August 2015 stating that: “I am advised by Mr Singh that he made notes at the interview, however, he wrote the age assessment up the very same evening and then destroyed his handwritten notes”     [Back]

Note 4    Paragraph 58    [Back]

Note 5   Paragraph 61    [Back]

Note 6   Page 35    [Back]

Note 7   Paragraph 2    [Back]

Note 8   The Country Information note of September 2015was withdrawn from the Home Office website in May 2016.    [Back]

Note 9   Paragraph 3.3.1    [Back]

Note 10   See paragraph 6 f) above    [Back]