Blog post by Dr Ruth Brittle (Nottingham Trent University), and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
Introduction
In the Queen’s Speech on 11th May, the government confirmed their intention to press ahead with legislation ‘to establish a fairer immigration system that strengthens the United Kingdom’s borders and deters criminals who facilitate dangerous and illegal journeys’. Legislation will be based on the New Plan for Immigration, which was published in March 2021. The consultation accompanying the publication of the New Plan, which had questions heavily loaded towards the government’s own narrow, incoherent, divisive and potentially illegal policy towards asylum seekers and refugees, closed on 6th May.
This blog continues this series of contributions critically examining the New Plan, which purports to strive towards building the “Global Britain” idyll of the Johnson government. The Plan seeks to welcome those handpicked for resettlement and remove any ‘illegal’ immigrants, including those adults who allegedly seek to abuse the system by pretending to be children. The New Plan contains a number of ideas (some old, some new) which will impact directly on children and their ability to access safe and legal routes to the UK, as well as their access to protection and safety once they reach the UK. This blog focuses on the proposals related to age assessments in chapter 4, pages 22 and 23. There, the Plan proposes to ‘[c]reate a robust approach to age assessment to ensure we act as swiftly as possible to safeguard against adults claiming to be children and can use new scientific methods to improve abilities to accurately assess age.’
Something Old? – Unaccompanied Asylum-seekers and Age Assessment
There is a deliberate misinterpretation of the data (a running theme) to justify this ‘robust approach’ with the government asserting that in 2019, the UK received more asylum claims from unaccompanied children than any other European country, suggesting its generosity outstrips its European neighbours. But not every country in Europe allows unaccompanied children to make asylum claims, preferring instead to protect them in the public child care system (e.g. France) and not every country in Europe maintains accurate data on unaccompanied children on their territory (e.g. Greece). Comparing figures of unaccompanied children in the UK and Greece in 2019 reveals that the UK’s assertion that it receives more unaccompanied children claiming asylum than anywhere in Europe is disingenuous. In 2019, the UK recorded 3,775 asylum applications by unaccompanied children. For the same period, Greece recorded 9,817 referrals of unaccompanied children to the National Centre for Social Solidarity. While this data records referrals to Greece’s welfare system, rather than the children arriving, it shows that Greece hosted almost three times as many unaccompanied children as the UK in 2019.
In addition, to justify the proposals, there is a selective set of statistics which show an increase in age disputes where the young people were found to be adults. In 2020, 32% of all applications by unaccompanied children were age assessed. The government claims that 54% of age disputes are successful, but that figure is less than 15% of the total number of applications. There was a decrease of approximately 25% of age disputes between 2018 and 2020.
These figures do not include how many age dispute decisions are judicially reviewed and how many ‘adults’ are found to be children after judicial review. Children whose ages are disputed may not have access to good quality legal advice and support to challenge the age assessment made by the Home Office or the Local Authority. There is increasing evidence of poor decision-making by the Home Office and age assessments being conducted improperly.
Accurate age determination is clearly important as it will determine where the young person will live, whether they obtain access to education, and the right support from social services. In the UK, children under 18 will be looked after by the local authority, which has a duty to safeguard and promote the child’s welfare (s 17 and 20 Children Act 1989). Currently the government pays local authorities £114 per night for each unaccompanied asylum-seeking child accommodated in their area. But there are no reliable figures on how much it costs the Home Office to dispute a person’s age.
Something Borrowed: Scientific Age Assessment Methods
In the UK, age is generally determined on physical appearance and demeanour and must be ‘Merton’ compliant (see B, R (on the application of) v London Borough of Merton [2003] EWHC 1689 (Admin)), but where there is ‘significant doubt’ about age, an age assessment will be conducted, which will include an interview by social workers. However, age assessment has always been controversial because it is an inexact science and there is a significant margin of error. As the Refugee Council has observed, ‘[d]etermining an individual’s age is a notoriously difficult and subjective process’ and thus, age should not be assessed by a single method. Age determination is further complicated because some children try to avoid being identified as being under 18 (or are told to act like adults by their smugglers) because being identified as an adult may make it easier for them to move on when the country they have arrived in is not their intended destination.
The government’s proposal to ‘strengthen and clarify’ the framework for age assessment includes setting up a new body to carry out the process – the National Age Assessment Board (NAAB) which will set out ‘the criteria, process and requirements to be followed to assess age, including using the most up to date scientific technology.’ The Home Office indicates an intention to compare scientific methods used in Sweden, France, Norway, Germany and the Netherlands. The Home Office is correct to assert that the UK is one of the few countries not to use scientific methods to assess age and for a very good reason: scientific methods adopted in other countries have been challenged because they tend to be inaccurate. For example, in Spain, the primary method to test age is a radiological analysis using wrist x-rays and is known to have a margin of error of up to four years. The method used by Spain has been criticised by the Committee on the Rights of the Child, e.g. in N.B.F. v. Spain (CRC/C/79/D/11/2017).
Reliance on scientific age assessment methods has also been condemned widely by professional bodies and international organisations. The Royal College of Paediatrics and Child Health, the UNHCR and the European Asylum Support Office (EASO) have all recommended a more holistic and multidisciplinary evaluation of age and advised that there should not be a heavy reliance on scientific methods. The Council of Europe recommends that the process should be based on a consideration of physical, psychological, developmental, environmental and sociocultural factors, an approach which has also been endorsed by the CRC Committee. Thus, the proposal in the New Plan to adopt scientific methods will not necessarily be the answer the UK government is looking for.
Something New? – A Return to Unreliable Methods
The New Plan seeks to reintroduce a “new” narrower test for assessing age which would assess a child as being over 18 if his or her appearance and demeanour very strongly suggest that they are significantly over 18. However, this approach to assessing age was declared unlawful in BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872 because it did not allow for the benefit of the doubt in borderline cases and risked a child under 18 being detained with adults. The Court of Appeal concluded that the guidance contained no recognition of just how unreliable the exercise of assessing age on the basis of appearance and demeanour is and how wide a margin of error is required. Afterwards, the guidance was changed to say that ‘their physical appearance and demeanour must very strongly suggest that they are 25 years of age or over.’ However, the Home Secretary appealed the decision. The Supreme Court have yet to hand down judgment, but whatever is decided may have no bearing on the new Bill which seeks to return to the original policy guidance.
There is little acknowledgement in the Plan of the impact a journey can have on the appearance and demeanour of a child or of the fact that many children travel without documentation and cannot confirm or verify their date of birth. Age is not a fixed construct in every part of the world and different calendars are used, which can make it difficult for a young person to know what age he or she is in a Western European sense.
Something Blue? – Ignoring the Best Interests of the Child
At no point in the New Plan does the government consider its duty to safeguard and promote the welfare (best interests) of children under s55 of the Borders, Citizenship and Immigration Act 2009 (BCIA). The best interests of the child principle is also affirmed in the Global Compact on Safe, Orderly and Regular Migration (Marrakesh Compact) and in the Global Compact on Refugees (Refugee Compact). Indeed, the former explicitly calls for ‘a multi-disciplinary, independent and child-sensitive age assessment’ (para 28(d)). The best interests of the child principle should be at the heart of any age assessment system and age disputes should only be raised for those young people where there is significant doubt about their age. They should be treated as children until their age is determined. This is in the best interests of the child and does not risk a child being treated as an adult, detained and returned (which is a greater risk under the New Plan).
The current age assessment process in the UK is intrusive, adversarial and unnecessary. The questions asked to try and establish age touch on sensitive, intimate, and personal issues. It is unnecessarily adversarial, leading many young people to feel they are not believed and risks retraumatising them. For nearly half of the children involved, it is wholly unnecessary as they are confirmed as being under 18. Whilst waiting for their age assessment, unaccompanied children are often placed in accommodation which is unsuitable for their needs, denied access to education and appropriate healthcare and are left without the care and support they require to protect them.
Conclusion
Any new ‘robust’ system to assess age must ensure the child’s best interests, maintain the benefit of the doubt principle and allow age to be assessed in a more holistic, less adversarial way. Children whose age is disputed must have access to good quality legal advice, an appropriate adult (or guardian) and an interpreter.
A good place for NAAB to start with redesigning the process would be to follow the guidance of UN human rights treaties bodies:
in order to make an informed estimate of age, States should undertake a comprehensive assessment of the child’s physical and psychological development, conducted by specialist paediatricians or other professionals who are skilled in combining different aspects of development. Such assessments should be carried out in a prompt, child-friendly, gender sensitive and culturally appropriate manner, including interviews of children and, as appropriate, accompanying adults, in a language the child understands.
In the New Plan, the Home Office has failed to provide independently verified evidence of widespread abuse of the age assessment process. There is little evidence to suggest that many adults claim to be children. Instead, the government’s ‘robust’ approach is to revert to old guidance and to borrow scientific approaches used by other countries which risks more children being assessed as adults and being detained with adults which is a serious safeguarding concern. As Underhill LJ noted in BF (Eritrea), the risk of a child being detained because of the failure to acknowledge the margin of error in age assessments is not insignificant. For an average of 375 children per year, who have been wrongly assessed as being over 18, this is a real and immediate risk to their safety and well-being.
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