Blog post by Evelien Brouwer (Amsterdam Centre for Migration and Refugee Law, Vrije Universiteit Amsterdam) and Romain Lanneau (Research and Project Assistant at the Odysseus Academic Network).
To protect the best interest and rights of children, in different stages of the asylum procedure it can be necessary to assess whether an asylum seeker is a minor or not. If during the asylum procedure the age cannot be determined with sufficient certainty, because of missing formal documents and/or contrary statements of the applicant, asylum authorities can use data stored into databases such as Eurodac or perform a physical and/or psychological investigation. In other words, to decide on the age of the asylum seeker, the administration may rely on data recorded previously by other states or on evidence based on the use of physical and psychological examination.
Currently, EU Member States use different methodologies for age assessment. These methodologies have been criticised for their impact on the individual’s rights, including privacy and the best interest of the child, but also because of their lack of reliability. For some years, different organizations, including the European Asylum Support Office (EASO) and the Fundamental Rights Agency (FRA), have advocated a more uniform approach within the EU, while respecting minimum guarantees to protect the individual rights at stake. Furthermore, immigration authorities keep using medical expert reports in their decision-making to support a claim of adulthood, despite concerns expressed by medical experts themselves. These concerns are not only related to the protection of the rights and best interests of the child, but also address ethical questions including the role of medical practitioners to perform these tests and reservations with regard to the reliability of proof.
In its recommendations of January 2020 for the EU Commission’s proposed Pact on Migration and Asylum, UNHCR invites the EU legislator to adopt a common method for age assessment. In this blog, the authors agree with UNHCR that it is now the moment to ensure a more harmonized approach within the EU to protect fundamental rights, and more specifically the best interest of the child. For this purpose, the EU legislator may rely on recommendations from different organizations and stakeholders such as EASO and FRA, but also the Council of Europe. This contribution will first explain the role of age assessment in EU asylum law, the fundamental rights involved, and problems with regard to the role and reliability of medical tests. It will then describe recent case-law of UK and French courts and decisions from the UN Committee on the Rights of the Child (the CRC) on age assessment. In the conclusions, on the basis of this case-law and different recommendations of organizations, the authors propose procedural guarantees on age assessment to be included in future EU legislation.
The relevancy of age in EU asylum law
Age is a criterion of utmost importance in the asylum procedure for identifying vulnerable asylum applicants. In particular, a child, a person below 18 years old, needs to be identified as soon as possible to benefit from special procedural guarantees and adapted reception conditions. Determining the age of a person is relevant because being a minor, as recognised in the EU Procedure Directive and the Reception Directive, is a threshold for more protection.
Once an applicant applies for asylum in the EU, Member States are confronted with the importance of age in the application of Eurodac. Article 9 of the Eurodac Regulation requires a person to be at least 14 years to have their personal data collected. The information given by the applicant, during their registration as asylum seeker, such as their age, will be a decisive element if the person moves to another country of the EU and apply once more for asylum. Furthermore, the best interest of the child, in particular of unaccompanied minors, is protected in Article 6 of the Dublin Regulation. This provision not only obliges Member States to ensure that unaccompanied minors are represented and/or assisted with legal representatives, but also that the best interest of the child is safeguarded when considering family reunification possibilities, the minor’s well-being and social development, and safety and security considerations (in particular where there is a risk of becoming a victim of human trafficking). According to the Dublin Regulation, Member States must take into account the views of the minor in accordance with ‘his or her age or maturity’. Article 8 of the Dublin Regulation provides that an unaccompanied minor is reunited with his or her family members or siblings, provided this is in the best interest of the child.
According to the Procedure Directive, being a child or an unaccompanied child is an important element for Member States to consider before channelling a person in the appropriate asylum procedure: border procedure, accelerated procedure, or normal procedure. Article 25 (1) of the Asylum Procedure provides that unaccompanied children must benefit from a representative that will assist them during the application of the asylum procedure. Member States may refrain from appointing a representative in the circumstances that the applicant will reach 18 before a decision of first instance is taken. Before reaching that age however, the special needs of minors must be taken into account during interviews and in the decision-making. It follows from Article 23 of the Reception Directive that Member States when implementing the Directive must ensure a standard of living adequate for the ‘minor’s physical, mental, spiritual, moral and social development.’ In accordance with Article 11 Reception Directive, minors in general may only be detained as measure of last resort, if less coercive alternative measures cannot be applied and ‘for the shortest period of time’. The detention of unaccompanied minors is only allowed in ‘exceptional circumstances’, they should be accommodated separately from adults, and they may never be detained in prison accommodations.
Different practices of age assessment in the EU
In its report of 2018, the EASO established that within the EU, Member States apply different methodologies for age assessment, including non-medical and medical methods. Non-medical methods involve the use of documents, psychological interviews, estimation based on physical appearance, and assessment by social services. Medical methods vary from carpal (hand/wrist) or collar bone X-ray, dental examination and/or dental X-ray, and sexual maturation observation. The majority of EU Member States use carpal/hand wrist X-ray (also known as the Greulich-Pyle Atlas method), whether or not together with other methodologies such as dental observation or dental X-ray. Seven Member States (Austria, Croatia, Estonia, Germany, Hungary Italy, Romania) use sexual maturation observation to assess age. Six countries (Croatia, Estonia, France, Germany, Greece, Italy) use psychological interviews.
Aside from the use of different methodologies, the FRA pointed out in its report of 2018 on age assessment and fingerprinting of children in asylum procedures, to the different procedural guarantees in the EU with regard to the use of medical tests. Except for two Member States, in which age assessment procedures can only be conducted through interviews, all the other EU Member States make use of medical tests. According to the FRA report, in all Member States where medical tests are used, this requires the consent of the persons concerned and/or their representative and no test can be carried out against their will. Only in five Member States, the consent of both the child and the representative is required; in eight Member States a medical test can only be conducted with the consent of the child and in five Member States the explicit consent of the legal representative is necessary. It cannot be derived from the FRA report which information exactly the Member States provide to the child or his or her guardian, prior to obtaining consent for the age assessment test. Therefore, it remains unclear whether the child (or his or her representative) receives information about the goal of the medical tests, the use of the outcome of the test, or the consequences of refusing the medical test. One of the recommendations formulated by the FRA (and other organizations), concerns the requirement of informed consent.
In December 2019, the Council of Europe published the report Promoting Child-Friendly Approaches in the Area of Migration, including good practices and standards for the use of age assessment and the protection of children’s rights. Furthermore, a report written by Daja Wenke in 2017 on behalf of the Council of Europe, also described the different practices and procedural rules in Europe and proposed the development of standards and safeguards for age assessment procedures that are human-rights based and ensure the best interest of the child.
Rights of the Child
The Convention on the Rights of the Child (UNCRC) is the international legal treaty, ratified by all EU Member States, that include the main international legal principles concerning the rights of the child. In accordance with Article 3 UNCRC, state parties must ensure that the best interests of the child are primary consideration in all actions concerning children, whether undertaken by public or private welfare institutions, courts of law, administrative authorities, or legislative bodies. In accordance with Article 12 UNCRC, children must be given the opportunity to be heard in any judicial and administrative proceedings, either directly or through a representative or an appropriate body. The views of the child must be given due weight in accordance with the age and maturity of the child. This right implies for example, in asylum procedures that unaccompanied minors are provided with a representative to assist them during the procedure and to inform the minor about the procedure and help them to freely express their opinions.
In 2000, the EU legislator recognized the UNCRC as the basis for the introduction of Article 24 Charter on Fundamental Rights (CFR) on the rights of the child and specifically the protection of the best interest of the child as protected in Article 3 of the UNCRC. Article 24 CFR provides that in ‘all actions relating to children […] the child’s best interests must be a primary consideration’. Referring to 24 CFR, the Court of Justice of the European Union (CJEU) emphasized in MA, a case concerning the application of the Dublin procedure, that in the context of unaccompanied minors, when determining the Member State responsible for the asylum application, national authorities must take into account the best interest of the child. This means that, in order not to prolong the applicable procedure unnecessarily, the Member State in which the unaccompanied minor is present should be designated as the responsible state, also if the minor applied for asylum in different states and has no family members legally present in the Member State.
There is no implicit reference to the rights of the child in the European Convention of Human Rights (ECHR) but the European Court of Human Rights (ECtHR) found in Mugenzi while referring to the UNCRC, that the best interest of the child must be taken into account in decisions dealing with the right of family reunification of refugees. In this judgment, the ECtHR found that France violated Article 8 ECHR on the right to family life, by failure of striking a fair balance between the interests of the applicant and the interests of the state in controlling immigration. In the judgment Rahimi, the ECtHR underlined the specific vulnerability of minor unaccompanied asylum seekers and found a violation of Article 3 ECHR by Greece because of the poor detention conditions and the failure of the Greek authorities to take care of the child following his release. Currently, two cases are pending before the ECtHR dealing with the use of X-ray tests of the left wrist for the purpose of age assessment in Italy (Bacary and Darboe and Camara). In their third-part intervention for the latter case, the AIRE Centre, the Dutch Refugee Council and ECRE recommend that age assessment should never be undertaken as routine process and be carried out by qualified experts respecting material and procedural guarantees under Articles 3 and 8 ECHR. According to the interveners, medical tests should be avoided, ‘due to their low evidential value, intrusiveness and a risk of a disproportionate interference in the child’s private life that may lead to a violation of Article 8 ECHR.’
Informed consent and best interest of the child
An important question when using age assessment technologies requiring prior consent, is whether children are always able to understand the nature and reason of the request and thus whether one can fairly speak of ‘informed consent’. This specific situation of the child is recognised in Article 8 of the General Data Protection Regulation, according to which data processing of personal data of a child below the age of 16 shall only be considered lawful if and to the extent that consent is given by the holder of parental responsibility over the child. In absence of responsible parents or care-takers, as is the case with unaccompanied minors, age determination must be based on a careful approach, respecting the protection of the best interest of the child, informed consent, and the right to self-determination of the child. Therefore, the best interest of the child might be a reason not to oblige or even ask the applicant to undergo a test of age determination.
Questioning the reliability of age assessment tests
Aside from the invasive investigation to which children/adolescents are subjected, the reliability of many of the aforementioned methodologies is not undisputed. The outcome of the tests applied, can be very different, dependent of ethnicity and socio-economic factors.
For example, a publication of 2019 in European Radiology, revealed that the ethnicity or origin of the child can influence the applicability of the Greulich and Pyle Atlas test, which uses a handwrist radiography or X-ray to assess the age of the person. Based on a systematic review of studies published between 1959 and 2017, the authors conclude that the Greulich and Pyle test can be imprecise and should be used with caution in Asian and African population, particularly when assessing age for forensic or legal purposes.
Furthermore, personal experiences of asylum applicants, such as stress, can influence the reliability of medical age assessment tests. Different studies established the relationship between post-traumatic stress disorder (PTSD) and premature ageing.
The role of medical experts: ethical questions and concerns
In 2015, the European Academy of Paediatrics (EAP) recommended all paediatricians not to participate in the age determination process of asylum seekers stating they are minors. The organization underlines the lack of reliability of different methodologies used for age assessment, but also refers to the specific role of physicians, stating that ‘asylum seekers are not patients and therefore physicians have no right to violate the privacy of the individual. Participation in the process of age determination might also interfere with the present and future patient-doctor relation’. In this recommendation, the EAP calls on all physicians to let the representatives in their countries know that they ‘oppose the asylum Procedures Directive (2005/85/EC) according to which the member states may use medical examinations to determine age in relation to the procedure of an asylum application’.
In 2019, in a statement on age assessment of unaccompanied minor asylum seekers, the World Medical Association held that medical age assessment should only be carried out in exceptional circumstances and only after all non-medical methods have been exhausted.
Aside from the ethical concerns from medical specialists with regard to their role in immigration procedures, there may also be doubts on the quality of the medical research. As provided in the second paragraph of Article 25 (5) Procedures Directive, any medical examination must be ‘carried out by qualified medical professionals allowing, to the extent possible, for a reliable result’. As we have seen above, different methodologies which are currently used in the EU are far from reliable and the addition ‘to the extent possible’ also provides the individual Member States much leeway. As pointed out by Aviat, the criteria of the CJEU in the Pfizer judgment, may become relevant in immigration cases as well when dealing with the use of scientific analysis of independent experts in procedures culminating in a decision or a legislative measure. In Pfizer, the CJEU underlined that the scientific advice should meet the ‘requirements of excellence, independency and transparency’.
Decisions of the UN Committee on the Rights of the Child
In 2018 and 2019, the United Nations Committee on the Rights of the Child (CRC) dealt in three separate cases with the use of age assessment in Spain on unaccompanied children. In these decisions, even if non-binding, the CRC provided important criteria with regard to the protection of the best interests of the child and also on the reliability of the methodologies employed.
The case of 27 September 2018 (N.B.F. v Spain, No. 11/2017) concerned the complaint from an unaccompanied asylum applicant from Ivory Coast, arrested while attempting to enter Spain illegally, and who claimed to be a minor. Based on the results of an X-ray of his left hand, the Spanish authorities decided to detain him in an adult detention facility. His claim before the CRC was based on a violation of Article 3 (best interest of the child) in conjunction with Articles 18 (2) and 20 (1) UNCRC because he was not assigned a representative or a guardian. According to the applicant, the only methods of age determination used at that time in Spain were medical tests or assessments based on a person’s physical characteristics, without indicating any margin of error. Furthermore, other methods such as psychosocial assessment or information drawn from available documentation, knowledge and local information, would not have been employed at all. The applicant also submitted violation of Article 12 (right to express own views and right to be heard in judicial and administrative proceedings, directly or through a representative), as he was not appointed a legal representative of his own choice. In this decision, the CRC referred to its General Comment No. 6 of 2015, in which it was emphasized that both physical appearance and psychological maturity should be taken into account and that the assessment must be based on scientific criteria with consideration of the best interests of the child. Furthermore, in cases of uncertainty, the individual must be given the benefit of the doubt: this means that in such cases, children must be treated as such. With regard to the claim of N.B.F., the CRC found a violation of Articles 3 and 12 of the Convention because the age assessment procedure was not accompanied with safeguards needed to protect his rights under the UNCRC.
On 31 May 2019, the CRC decided in two further cases on age assessment in Spain. The first case, A.L. (No. 16/2017) dealt with an Algerian national who arrived by boat in Almería, Spain 2017 and, when detained by police, stated he was a minor. The Spanish authorities, using the Greulich-Pyle Atlas method in an hospital to which he was transferred, found the applicant was ‘older than 19’. A.L. was subsequently detained in the Detention Centre for Foreigners (CIE) of Aluche, Madrid, pending his return to Algeria. In this decision, the CRC recalled that the determination of the age of a young person claiming to be a minor is of fundamental importance, since the outcome determines whether that person will be entitled to protection as a child and the rights that flow from this, or will be excluded from such protection. The CRC, also by referring to the General Comments No. 6, held that the appointment of a legal guardian or a representative is an essential guarantee during the age assessment process, the denial of which would constitute a violation of the right to be heard. Accordingly, the Committee found a violation of applicants’ rights under Articles 3 and 12 UNCRC.
The second case, of J.A.B. (No. 22/17) concerned a Cameroon national, who arrived in Ceuta on 23 April 2016. According to his statement, he would have been told by the Red Cross, not to inform the authorities that he was a minor as this would imply he would have to remain in Ceuta. The applicant complained that as a consequence of the failure to recognize the validity of official documents issued by his country of origin, and which he had submitted later to the Spanish authorities, and of his refusal to undergo unnecessary tests to determine his age, he was wrongly considered to be an adult. This resulted in leaving him without State protection and living in the streets in poor health and putting him at risk of expulsion from the country. The CRC held that Spain had failed to protect him against his situation of helplessness, particularly given his high degree of vulnerability as a minor who is a migrant, unaccompanied and ill. The Committee noted that this lack of protection occurred even after the author submitted identity documents to the Spanish authorities confirming that he was a child. The Committee considered that this constituted a violation of Articles 20 (1) and 24, which latter provision gives the child the right to have access to the highest attainable standard of health and health care services.
In both 2019 decisions, the CRC concluded that Spain violated Article 8 CRC on the right of the child ‘to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.’ According to the CRC, a child’s age and date of birth are part of their identity and states have an obligation to respect the child’s right to preserve their identity without depriving the child of any of its elements.
Examples of national practices and case-law: UK and France
In France and the United Kingdom, courts formulated more recently criteria which could be useful to take into account when drafting procedural guarantees on the use of age assessment in asylum procedures. The procedure of age assessment differs greatly in France and in the UK. The criteria on the methodology to assess the age of children in asylum procedures in the UK, were initially decided in the leading case of R (B) v London Borough of Merton . The High Court of England and Wales ruled in general that at that time there were no reliable medical or other scientific tests to determine whether someone is over or under the age of 18. Therefore, according to the UK court, age assessment should always be based on a more integrated or holistic approach, assessing the appearance, behaviour, and the credibility of the asylum seekers’ account. This judgment resulted into the so-called ‘Merton compliant age assessment’. It requires in non-obvious cases an in-depth interview carried out by experienced social workers. In clear cases, the decision-maker can determine solely based on the appearance of the applicant if the person is a child.
In 2019, the Court of Appeal (CoA) in the UK in the case of BF (Eritrea) vs secretary of the State for the Home Department and the equality and human rights commission decided upon the case of an asylum applicant that was recognized as an adult by two officers following a visual assessment. The officers assessed that his physical appearance/demeanour would ‘very strongly suggest’ that he is significantly over 18 year of age and that no other credible evidence existed of the contrary. The person was subsequently treated as an adult despite his claim of the contrary and detained according to the UK legislation. The procedure was contested for being too vague and therefore violating the rights of the applicant. The CoA ruled that the guidance given to officers to assess the age of a person claiming to be a minor was too vague. A reference to a specific age should be included for the officer to make an informed decision about whether a person is a minor. Furthermore, this decision describes relevant factors to take into account when using age determination technologies: 1) there is no reliable anthropometric test for determining a person’s age; 2) age determination is an inexact science and the margin of error can sometimes be as much as five years either side; 3) the difficulties are even greater when the individual is of a different ethnicity, culture or background; 4) within each culture, people mature at different rates. In the new guidelines on age assessment of May 2019, subsequently drafted by the Home Office it is provided that the benefit of the doubt should be applied when based on a visual evaluation: “their physical appearance and demeanour do not very strongly suggest that they are 25 years of age or over.” With regard to the physical appearance and demeanour, the UK guidelines provide that this assessment must take into account different factors, such as social and economic background or psychological or physical health of the person, also related to experiences in the past.
In France, when there is doubt about the age of a person asking for asylum the procedure requires an initial evaluation of the material evidence of the person and a social evaluation led by a social worker. In cases there is still doubt on the age of the person, Article 388 of the French Civil Code, allows a judge to order a bone testing evaluation to be done and to ask for the consent of the applicant. The French Constitutional Court (CC) was asked to review the conformity of the use of bone testing to assess the age of an applicant, Article 388 of the Civil Code, with fundamental rights protection. The facts of the case concerned a person recognized as an adult by a judge based on the results of a bone testing examination despite a previous contradictory social evaluation test. The CC rejected the claim that Article 388 would violate the protection of the fundamental rights guaranteed in the Constitution. Nonetheless, it affirmed clearly that a bone testing evaluation should not prevail over contradictory results found via an assessment of the material evidence or/and the social evaluation of the person.
The CC, referring to the existing procedural rules in French law, provided different grounds on the basis of which it held that the tests were legitimate. First, the decision to submit the child to a radiological test could only be taken by a judicial authority. Second, the test is only allowed in case of absence of official documents, underlying the subsidiary nature of the test. Third, the test requires informed consent by the applicant, while ensuring that the person is informed in a language he or she could understand. Fourth, the CC underlined that the fact that the applicant refuses to be submitted to the investigation, will not be used as proof of majority of age. Finally, the CC referred to the aforementioned rule that the outcome of the tests must indicate the margin of error, the decision may not be solely based on this outcome of the test, and that in case of doubt the applicant would receive the benefit of the doubt. Addressing the claim of that the tests would cause harm to the health of the applicant, the CC was quite brief, indicating that this was a decision for the legislator, and not to be assessed by the CC. Finally, the CC rejected the claim that the tests would violate the human dignity and inviolability of the human body, because the tests required prior permission by the individual and they did not include examination of internal parts of the body.
The overall conclusion, that the French practice on age assessment is not illegitimate, can be disputed. For example, the assertion that the investigation only takes place on the basis of the consent of the applicant seems detached from real life. Especially in the case of minors it is difficult to ascertain whether he or she is capable to fully understand the impact and purpose of the requested investigation. Nevertheless, the aforementioned criteria on the use of age assessment as developed by the UK and French court could be used as relevant examples for procedural guarantees at the EU level.
Conclusions and recommendations
In this contribution, we addressed the fundamental rights challenges caused by the different practices of age assessment in the EU and where the use of medical tests seems to be the norm. Current EU law does not advocate for one particular method of age assessment. The Procedure Directive only provides minimum standards concerning the procedural safeguards in the use of medical age assessment. In our view, and as proposed by UNHCR, a European harmonized approach should make clear in which exceptional circumstances a medical method is acceptable. This approach should ensure that privacy-invasive tests are prohibited and that new developments or scientific evidence on reliability of age assessment are always taken into account. EU law must ensure that medical tests are only used as an exception, based on the request of the asylum applicant him or herself, or when other information or evidence on the assumed age of the asylum applicant is not available.
Furthermore, and as underlined by different stakeholders, including Separate Children in Europe Programme, SCEP in 2012, age assessment must comply with a multi-disciplinary approach, balancing physical, developmental, psychological, environmental and cultural factors. National authorities must be made aware of the limitations of assessing someone’s ‘chronological’ age when dealing with the position and protection of vulnerable asylum seekers. This means that if there is a strong assumption that the applicant is a minor, she or he should be given the benefit of the doubt and not be asked to undergo medical or psychological tests. As also proposed by SCEP in 2012, the Commission should initiate the creation of a detailed and scrupulous protocol by experts’ professionals to guide the application of an age assessment method in practice. Furthermore, we recommend to incorporate in the new EU asylum laws, essential procedural safeguards as can be drawn from the aforementioned reports of different organisations including EASO, FRA, WMA, the UNCRC, and the courts decisions as described above. Without claiming to provide a complete list, these procedural guarantees should include at least:
- As long there is any doubt about the age of a person, he or she should be treated as a child and given the same protection, including the benefit of the doubt.
- Medical age assessment tests should only be used when there are doubts on the majority/minority of the asylum seeker and where there are no other less invasive means of age assessment, such as documents or interviews by specialized social workers.
- Medical tests, especially involving radiation should be a method of last resort, whereas sexual maturity tests should be prohibited.
- Medical tests must be carried out by qualified medical professionals adhering to all medical protocols and in a gender sensitive way, taking due account of the social and cultural background of the person involved.
- When conducting a medical age assessment test, Member States should seek the explicit consent of both the person concerned and the legal representative.
- Persons having to undergo an age assessment medical test should be informed about the nature of the medical test and the possible health and legal consequences, especially as regards their legal status as international protection seekers. This information should be provided by competent national authorities in a child-friendly manner and in a language that they understand. To ensure that their rights are respected, it is essential that before starting an age assessment procedure, national authorities appoint a guardian or legal representative to support and represent the person undergoing the assessment.
- The results of medical age assessment examinations should include information concerning the accuracy and reliability of the methods used and the relevant margins of error.
- Age assessment procedures should be clearly defined and regulated by national laws, clearly describing the selection of methods and indicating the scientific reliability, the procedural safeguards and the methodologies applied.
- The applicant must have the right to appeal against age assessment decisions and to have them reviewed and revised.
- Where doubts regarding the age of an asylum seeker cannot be resolved or confirmed with absolute certainty, any remaining uncertainty should be interpreted in favour of the asylum seeker and any decision or treatment affecting the interest or rights of the asylum seeker should be based on a ‘presumption of minority’.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.