Blog post by Eleanor Serpell-Stevens, a postgraduate student at SOAS and volunteer at the UoL Refugee Law Clinic.

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This blog explores the human rights impact of the United Kingdom (UK)’s methods of age assessment of young asylum seekers. The UK has, to date, placed a clear priority on establishing chronological age as a ‘fact’ rather than adopting a human rights-focused approach through needs-based assessment, which has restricted access to child-specific rights. The responses of international human rights actors to this issue reveal a confusion in international human rights law over the basis upon which childhood is defined, and thereby how eligibility for protection as a child may be assessed. This blog argues that this confusion must be resolved in order that states such as the UK may employ a more human rights-focused approach, and that the basis for this resolution already exists within international human rights law.

Situating UK domestic legislation and policy within international human rights law

The primary international human rights instrument concerning children is the United Nations Convention on the Rights of the Child (UNCRC). Defining the child in article 1 as ‘every human being below the age of 18 years,’ it prescribes a broad range of rights in the civil, political, economic, social and cultural spheres. Four ‘General Principles’ guide its interpretation: articles 2 (‘non-discrimination’), 3 (‘best interests of the child’), 6 (‘right to life’) and 12 (‘right to be heard’). The UK ratified this treaty in 1989, entering a reservation regarding article 22 (which protects asylum-seeking children) which was not withdrawn until 2008. Despite being legally binding on the UK, the UNCRC has not been explicitly incorporated into national law so cannot be directly applied in domestic courts. However, it has influence through the European Court of Human Rights (ECtHR), which has produced a growing body of jurisprudence in association with the UNCRC, drawing particularly on the European Convention on Human Rights (ECHR).^[1] Domestic courts have followed suit, as detailed by Bolton. For example, in ZH (Tanzania) v Secretary of State for the Home Department the Supreme Court ruled that in cases involving article 8 ECHR, article 3(1) UNCRC should be considered.

ECtHR jurisprudence is enacted in the UK through the Human Rights Act 1998. Section 6(1) dictates that ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right.’ Principles of the UNCRC that aim to safeguard the welfare of children have also been incorporated into the Children Act 1989 and equivalents in Wales and Scotland.

In the context of immigration, Section 55 of the Borders, Citizenship and Immigration Act 2009 brings the UNCRC into effect, addressing the state’s duty towards the welfare of asylum-seeking children. Part 11 (paragraphs 250-352ZB) of the Immigration Rules outlines ways in which the asylum process should be tailored for children. Paragraphs 352ZC-ZF also allow for ‘limited leave to remain’ in instances where it has been decided that a child not be granted refugee or any other subsidiary protection. Additionally, Regulation 6 of Asylum Seekers (Reception Conditions) Regulations 2005 obliges the Secretary of State to ‘endeavour to trace the members of the minor’s family as soon as possible after the minor makes his claim for asylum’ in accordance with article 3(1) UNCRC.

To benefit from these provisions, a person seeking asylum must be accepted as being a child by the Home Office. If, during an initial screening interview with an Immigration or Border Force Officer, an individual’s age is doubted as being under 18, they are either treated as an adult (in cases where Home Office staff decide ‘their physical appearance and demeanour very strongly suggest they are significantly over 18 years of age and there is little or no supporting evidence for their claimed age’), given the benefit of the doubt and treated as a child, or treated as a child pending a further age assessment with a local authority. There is no set procedure for a local authority assessment, however it must occur in accordance with case law, most notably that of B v London Borough of Merton. This case set a precedent whereby the background of the applicant must be considered in addition to credibility, physical appearance, and behaviour. The case law is also clear that the assessment aims to establish the ‘fact’ of chronological age as a basis for determining eligibility for support.

Issues with a ‘fact’-based approach

There is increasing evidence that this ‘fact’-based approach by the UK comes at the expense of fulfilling its obligations under the UNCRC. The Refugee Council and the Greater Manchester Immigration Aid Unit (GMAIU) both published reports in September 2022 which highlighted significant flaws in the current system. Both reports noted the extreme inaccuracy of initial age assessments by border officials: the former stated that 94% of their own referrals were individuals designated ‘certainly adult’ at the border who were subsequently found to be children. This report added that nationwide this was the case for 75% of ‘at least 450 young people…referred to local authorities in 2021.’ The GMAIU report also criticised the border assessments on the grounds that they were too short and based mainly upon physical appearance. It was also noted that, from January 2022, an individual need only appear ‘significantly over 18 years of age’ to become age-disputed rather than over 25 as it was prior to this.

There were also allegations of the deliberate falsifying of ages by Home Office officials of age-disputed individuals suspected of being adults, as well as reports of coercion by border officials for young people to lie about being older than they were. Criticism was also levelled at the lack of transparency resulting from not only the lack of statistics on how many young people are assessed as ‘certainly adult’ at the border (and what happens to them afterwards), but also the degree of discretion given to individual Immigration Officers. Finally, concern was raised at the dramatic increase in the number of age disputes that occurred in 2021 in comparison to previous years, indicating a trend towards age assessment as a routine practice rather than the ‘measure of last resort’ advised by multiple human rights bodies. The Nationality and Borders Act 2022 currently being brought into effect has also been criticised for further narrowing the protection afforded to young asylum seekers, allowing for the use of medical testing and specifying that assessments must be carried out by social workers from the Home Office.

The human rights implications of these issues are wide-ranging. They were addressed on 23^rd November 2022 by the Joint Committee on Human Rights (JCHR) as oral evidence for an investigation into the human rights of asylum seekers in the UK. One of the most significant issues raised was the risk of children being placed in adult accommodation. The Helen Bamber Foundation found that between January and March 2022 alone, 211 young people were referred to children’s services after having initially been treated as adults. Of these, two-thirds were subsequently re-assessed to be children, meaning that 150 children had spent time in adult accommodation or detention in violation of their rights under article 37(b)-(c) UNCRC. The ECtHR has ruled that detention of children in facilities intended for adults constitutes a breach of article 5 ECHR rights when interpreted through the UNCRC, and in 2017 the UK Court of Appeal ruled that detention of age-disputed individuals for immigration reasons had potential to be illegal. Another effect of incorrect classification as an adult is the threat of removal from the UK, as expressed with concern by several non-governmental organisations (NGOs) including Care4Calais and Love146 UK. Denial of child-specific safeguards can result in re-trafficking or lead to vulnerability to sexual assault. Age-disputed individuals may also be denied UNCRC rights pending assessment (and, depending on the outcome, beyond), in direct conflict with article 3. This in turn can have far-reaching consequences for a child’s development, affecting their rights under articles 6 and 27. Age-determination procedures themselves may also be distressing and anxiety-inducing, to the extent that they risk the re-traumatisation of an individual. Finally, the deprivation of access to child-specific legal aid is in conflict with the General Principles of the UNCRC, as expressed with concern by the British Association of Social Workers. These are all strong indications that UK’s ‘fact’-based approach comes at the expense of the protection of human rights.

A conflict in the conception of childhood

The JCHR and the Committee on the Rights of the Child (CRC) have sought to improve the UK’s compliance with the UNCRC while remaining within the ‘fact’ framework. Both advocate that the UK apply the ‘benefit of the doubt’ principle more liberally. The JCHR in 2001 criticised the lack of clarity in the UK’s application of this principle in age disputes, arguing that it seemed to seek ‘conclusive evidence…before the benefit of the doubt is given,’ thereby rendering the principle meaningless. Similarly, the CRC communicated to the UK in 2016 the need for improvement in areas concerning articles 22, 30, 32, 33, 34, 36, 37(b)-(d) and 38-40, specifically urging that age assessments should be carried out only in cases of ‘serious doubt.’ This begins to recognise that age assessment should only be a means to an end (the granting of rights), not an end in itself. However, it still resorts to establishing the ‘fact’ of chronological age as the deciding factor if the doubt is serious enough. Granting the benefit of the doubt still implies a temporary form of protection until the ‘fact’ is discovered, suggesting a degree of illegitimacy in age-disputed individuals claiming children’s rights. More recently in 2021 the CRC’s response to UK age assessments was focused on improving accuracy rather than questioning the underlying premise. While intended to promote fairer access to rights, the result is still to reinforce a fact-finding model over a human rights-based one.

Elsewhere, the CRC and other actors have attempted a paradigm shift, although they too appear unable to fully let go of the fact-finding model. The CRC’s General Comment No. 6 (2005), as well as advocating the benefit of the doubt for age-disputed individuals, advises that assessment should take into account psychological maturity in addition to physical appearance. However, it is well documented that psychological maturity often does not perfectly align with chronological age. In attempting to broaden the methods used to determine chronological age, it unwittingly introduces ‘psychological maturity’ as a separate, more nuanced ‘truth’ to be determined, without addressing whether it should be regarded as an indicator of a need of UNCRC protection in its own right – and if so, what priority it should have in relation to chronological age if the two findings are in conflict. In international refugee law, the United Nations High Commissioner for Refugees (UNHCR) has also integrated this ‘truth’ into its guidelines, attempting to give priority to ‘immaturity’ and ‘vulnerability’ over chronological age. In a further development, it subsequently recognised the existence of ‘exceptional cases’ whereby child protection should be afforded to those slightly over 18 when their psychological development has been hindered by persecution. Although intended to foster a more needs-based approach, this guidance remains within the context of chronological age assessments, perpetuating the same problem whereby psychological maturity is assumed to be an indicator of age rather than a separate entity indicative of need in itself. While this in practice may (to an extent) increase access to protection, it continues to use chronological age as the normative framework, leaving ‘psychological maturity’ cases as an exception to the norm.

Continued (and often unwitting) conflation of the two modes of assessment can be seen yet again in a report on the Council of Europe (2017) which, somewhat paradoxically, argues that States ‘attach a high priority to chronological age, which constitutes a significant limitation in age assessment procedures.’ If age is a hindrance to age assessment, one must question whether the assessment should not be entirely reframed in reference to psychological maturity. As long as the establishment of chronological age continues to be a part of assessments, it gives states such as the UK the option to default to a simple, binary and ‘fact’-based approach that absolves them of responsibility for vulnerable individuals instead of dedicating time and resources to create a more individualised human rights-based assessment.

The root of the issue (and its solution?)

This issue can be seen as a magnification of a conflict with roots in the UNCRC itself. The preamble, drawing from the Declaration of the Rights of the Child (1959), states that the child warrants special protection ‘by reason of his physical and mental immaturity.’ This effectively sets out a second basis for protection that has potential to conflict with that of article 1. Several bodies have come some way to recognising this. Smith and Brownlees, in a discussion paper from the United Nations Children’s Fund (UNICEF), criticise international human rights law for encouraging states to fixate on chronological age at the expense of psychological capacity, and reports from the Separated Children in Europe Programme and the Child Rights International Network reveal an increasing awareness that not only is psychological maturity significant, but should be prioritised over age as a more accurate indicator of need.

However, the same element that currently causes such confusion within international human rights law also has potential to resolve it. A ‘good faith’ reading of the preamble of the UNCRC under Article 31(1) of the Vienna Convention on the Law of Treaties (1969) could reframe the provision of childhood rights as a response to psychological maturity, acknowledging that while chronological age may often be a reasonable indicator of this, it is not the sole or even the most reliable. This could be used by the ECtHR to build a body of jurisprudence which would not just grant access to the UNCRC to more individuals in need of its protection, but would also enforce a more human rights-based approach from states such as the UK.

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[1] e.g. Demir v Turkey [2008] 48 EHRR 1272, para 69

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