APPEALING FINDINGS OF FACT: AN UNUSUAL ARGUMENT – TO NO AVAIL

November 1, 2017 · by · in Appeals, Witness statements

In Bedford County Council v GE (Eritrea) [2017] EWCA Civ 1521 the appellant attempted to argue that the trial judge had erred on the facts.  The arguments were given fairly short shrift.

THE CASE

After a hearing in the Court of Appeal it was ordered that a judge should determine the age of the respondent.  There was a trial on that issue and the trial judge determined that the respondent was aged under 18. The local authority appealed that decision. The Court of Appeal appear to be surprised that the issue was even raised.

THE APPEAL ON THE FACTUAL DECISION

    1. “The local authority, recognising the hurdle that they have to overcome in what is essentially an appeal against a finding of fact, rely upon R (AE) v Croydon LBC [2012] EWCA Civ 547 where the Court of Appeal accepted that the scope for interference in an appeal of this kind is limited but on the facts of that case found that the judge had erred in her analysis of the evidence. On behalf of GE it is submitted that too much store should not be placed on the comparability of decisions that are limited to their facts unless a fundamental methodological failure is relied upon. Where a judge acknowledges the importance of the contemporaneous evidence and written material and undertakes an holistic evaluation, it is difficult to criticise her for preferring the oral evidence that she has heard.
The age determination:
  1. In this case the judge’s age determination is challenged on her assessment of the evidence. That challenge is not supported by a submission that she made an error of law, for example, in determining credibility without reference to the written materials or an existing expert country report. The reason there is no challenge on a methodological basis is that the judge did not fall into that error, she undertook an holistic evaluation on all of the available evidence as she was required to do on the authorities.
  2. The challenge is not supported by transcripts of the oral evidence to demonstrate, if it is possible so to demonstrate, that no reasonable judge could have come to the factual conclusions that she did i.e. that the decision on the facts is wrong because it is perverse. Instead, the challenge identifies inconsistencies in the evidence which the local authority submit the judge should have weighed more heavily in the balance to come to the conclusion that GE’s story is unreliable.
  3. The judge gave detailed reasons for her conclusion that GE was a child when she entered the UK. Those reasons include: a) not being able to place much weight on the assessor who gave oral evidence because he could not remember the important detail, b) the assessor’s failure to challenge with GE her factual account, c) the consistency of GE’s account, d) the lack of insight, sensitivity and judgment evidenced by some of the opinions held by the social worker leading the assessment, and e) the impact that a very real memory that GE has of the age when she began menstruating on the evidence and the court’s assessment of her and her age. For all these reasons the judge accepted that GE’s date of birth was 27 September 1994.
  4. Given the fact that it is not submitted that the judge made an error of law and that her factual determinations were reasoned, it would not normally be appropriate for this court to entertain an appeal which amounts to no more than a disagreement with the judge. In deference to the permission that was granted by the single judge, the court has listened carefully to the submissions of the local authority, the essence of which are that the judge was inconsistent and selective in the material she chose to rely upon. I do not accept that submission. The material to which the judge referred in her judgment demonstrates her reasoning and in the absence of any contrary material, for example in the form of transcripts of evidence, or internal inconsistency that reasoning is patently cogent.
  5. I shall set out the judge’s analysis to illustrate why her reasoning is cogent. The factors that she identified include witness credibility, the reliability of GE’s account, the fingerprinting evidence, the evidence about the age of GE when her mother died and when her uncle went missing.
  6. The judge assessed GE as a highly credible witness. She seemed to her to be honest and to have attempted to answer questions accurately. The judge noted that her story had remained consistent over the years including as to her date of birth and time in Africa. There was no extraneous evidence of fabrication and the judge took the view that fabrication would have been unlikely. In contrast the judge concluded that the social work assessor was honest but could not remember the details of the age assessment. The judge was unable to attribute much weight to his evidence. The judge took an informed and appropriate line about impressions of credibility drawn from demeanour. She noted that the Chief Immigration Officer and the second interviewer had attributed significant weight to their impression of GE’s appearance and demeanour albeit that in the case of the former, that impression would still have meant that GE was only aged 18 when she entered the UK.
  7. The judge was unconvinced of the value of the demeanour evidence, as the insight retrievable from a short interview in strained circumstances is limited. On that point she held that: “despite the purported expertise of the social worker leading the interview in this case, there seems to me to have been lacking an appropriate level of insight, sensitivity and judgment, as illustrated by events at the abortive September assessment when the same assessors consulted with the UKBA, and then expelled the appropriate adult.”. She went on to comment that judging age by appearance is very difficult, as young women can vary significantly in how old they look.
  8. The consistency of GE’s account factored through into the judge’s assessment of the reliability of it. The judge noted that the assessors at the first age assessment found the respondent to have provided “accurate information”. It is notable that neither the screening interviewer nor the second age assessors had challenged GE’s account which had remained essentially the same.
  9. The fingerprinting in Italy raised the question whether GE was truthful in her response in interview that she had not been fingerprinted. The judge did not ignore that inconsistency but concluded after hearing evidence on the point and reading all the relevant documents that GE’s evidence to the effect that she had not known what “fingerprinting” meant was plausible. That was a conclusion to which the judge was entitled to come.
  10. As respects GE’s age when her mother died, the judge accepted the possibility that GE had described herself as 14 at the date of her mother’s death in 2005, although the judge thought that this was unclear from the interviewers’ notes. The judge was unsure that GE had understood the question or that the answer had been properly translated. The judge had the benefit of oral evidence and the interview notes. In any event and of more importance to the assessment of all the available evidence on the point, the judge relied upon GE’s witness statement which described her first occurrence of menstruation when she was 14 and which described events in a way consistent with her mother no longer being present.
  11. As to the death of GE’s uncle, the judge saw no difficulty in the fact that GE had not referred to her uncle when asked about her immediate family during the screening interview. GE said that when she tried to tell the interviewer about her uncle, she was stopped from doing so. The judge concluded that it was plausible that she mentioned her uncle but the interviewer made no note. Again of some significance, the judge concluded that there was no reason to assume that GE would have known the legal significance of being an unaccompanied minor and there was no opportunity for her to have been coached.
  12. Finally, the fact that GE described herself as seventeen when she was just short of seventeen was explicable in accordance with her evidence. The judge accepted GE’s explanation of this, namely that she used to calculate her age as if she were aged one when she was born. Her lack of education in that regard was significant. The judge held that: “The absence of milestones such as schooling, the lack of family life beyond the age of 11 and cultural differences as well as an impoverished lifestyle may well have meant that birthdays were not much celebrated, and age had little significance for GE.”
  13. The local authority’s submissions focused upon whether that reasoning was sufficient and also whether GE’s failure to mention the circumstances of her arrival and processing in Italy, the history of fingerprinting and the implausibility of her route through Europe when taken together were fatal. The local authority brought a commendable attention to detail in their dissection of the documents and the judge’s record of evidence which is contained in the judgment. They are able to highlight inconsistencies as between the written and oral evidence and inherent implausibilities. That would make for relatively powerful cross examination material which may or may not have been successful if this had been a first instance tribunal concerned to make the findings in issue. However strong a case it might be, this court is not such a tribunal. We have not been given the transcripts of evidence to read the answers given by GE and others to the points that were put in cross examination. We are unable to assess the very issues that the judge carefully reasoned and there is nothing that is fatal to the judge’s findings and reasoning i.e. there is nothing that demonstrates that her conclusions or approach were perverse.
  14. Accordingly, on the age assessment question, I have come to the conclusion that the judge was right and I would dismiss the appeal.”

 

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