By Alejandra Fernández de Angulo
The European Union’s newly adopted age assessment framework, introduced through the reform of Article 25 of the Asylum Procedure Regulation under the New Pact on Migration and Asylum, represents a significant shift. It seeks to move from a predominantly medical model of age determination to a multidisciplinary approach. While the new legislation introduces new procedural guarantees, serious concerns remain regarding the continued possibility of invasive medical methodologies, the lack of harmonization, and the absence of a dedicated right of appeal. Since classification as a minor or adult directly affects access to special procedural safeguards, reception conditions, and protection measures designed to ensure the best interests of the child, the reform raises pressing questions regarding its compatibility with children’s fundamental rights This paper critically examines both the wording of the reform and its potential practical implications in order to assess whether it constitutes genuine progress or continues to pose a persistent threat to the fundamental rights of the child.
1. The contested methodology of the age assessment procedure
Age assessment in the EU asylum procedure is much more than a bureaucratic formality; it is a decisive moment that determines whether a person is classified as a child or an adult with all its legal consequences. It is the difference between a child-friendly asylum procedure that is adapted to their needs, or one which is not.
Historically, age assessment was regulated under Article 25(5) of the Asylum Directive which permitted Member States to use “medical examinations to determine the age of unaccompanied minors in the framework of examination of an application for international protection, in case of doubts concerning the applicant’s age”. These medical examinations included carpal, clavicle, dental, pelvis or knee X-rays, magnetic resonance imaging (MRI) scans, physical development evaluations or sexual maturity tests. The Directive provided several procedural safeguards, including the right of applicants to be informed of the procedure and its consequences, the need for consent, as well as the paramount obligation of public authorities to respect the rights of the child enshrined in the Charter of Fundamental Rights (CFR), the European Charter of Human Rights (ECHR), and the Convention on the rights of the Child (CRC).
Nonetheless, the use of medical evaluations as a tool raised several ethical and reliability concerns amongst scholars, practitioners, and human rights defenders:
First, the European Migration Network and the European Council of Refugees and Exiles (ECRE) identified the more than 8 possible methodologies for age assessment, as well as a high variability across Member States. This inconsistency produced unequal treatment of minors across the EU.
Second, these medical tests do not fall short of uncertainty. They are all subject to a margin of error of at least 18 months and can sometimes be as much as 5 years either side,[1] a margin too wide to reliably distinguish an applicant’s exact age above or below 18 years. Dental observations and X-rays are undermined by the fact that the only indicator of adulthood are the third molars, which may or may not appear at any time between the ages of 15 and 23 and vary greatly across ethnic groups.[2] Moreover, collarbone X-rays can only determine if someone is above or below 20 or 21 years of age, depending on gender.[3] Sexual maturity tests have a wide margin of error, since they can be affected by late or early puberty and do not take into consideration variations between ethnicity, race, nutritional intake and socioeconomic background.[4]
Third, the reference atlases used to interpret the radiographic results were developed using Caucasian children and do not sufficiently account for ethnic differences. For instance, African females show advanced bone age, Asian males are delayed in childhood but advanced by late adolescence, and Hispanic children’s bone age is often overestimated. Furthermore, additional environmental factors such as nutrition, quality of life, trauma and stress are not taken into consideration.
Fourth, health professionals have long raised concerns about exposing children to ionizing radiation for non-medical purposes. The WHO notes that such exposure can induce long term cellular damage.[5] Given children’s increased radiosensitivity, the European Academy of Pediatricians opposes medical examinations to determine age and recommends all pediatricians to refuse to participate in them. The Academy highlights the lack of reliability as well as the view that “asylum seekers are not patients and therefore physicians have no right to violate the privacy of the individual”.[6]
Beyond the concerns of medical professionals, the Committee on the Rights of the Child[7] and the European Court of Human Rights[8] have found Member States to be in violation of several rights of the child while performing age assessments on asylum applicants.
2. The recast of Article 25 in the New Pact on Migration and Asylum
In May 2024, the Council finally adopted a new legislative framework reforming the Common European Asylum System. One of its 10 legislative instruments, the Asylum Procedure Regulation, introduced the highly awaited reform of Article 25 on age assessment. This new legal framework will enter into force by mid-2026. Given that it affects the most vulnerable group of people, namely, migrant children, it is essential to examine not only the formal wording of the legislation, but its practical implications on the rights of the child.
The most noticeable change is the expanded scope of applicability. Age assessments were previously reserved for unaccompanied minors applying for international protection, whereas now any applicant claiming to be underage may be subjected to one, even if accompanied by a guardian or family member.
More importantly, the Regulation requires that a multidisciplinary evaluation be carried out before resorting to any medical examination. While the provision only gives a psychosocial evaluation as an example, the preamble clarifies that other methods can be used. The Common Implementation Plan for the Pact on Migration & Asylum refers Member States to the EUAA Practical Guide on Age Assessment which identifies a list of possible techniques, such as interviews, visual assessments or further assessment of documentation such as vaccination booklets or school records.
Thus, medical examinations of minors are not eliminated but merely relegated to a last resort measure (Article 25(2)). Only when a multidisciplinary assessment proves inconclusive may medical tests be used. Article 25(3) additionally states that the medical method used must be the least invasive possible, although the preamble indicates the authorities can proceed to more invasive methods if the initial tests don’t suffice. The system-closure guarantee means that if the result of the medical age assessment remains inconclusive, then the applicant must be presumed to be a minor.
Further procedural safeguards have been introduced in the new Regulation. Medical examinations must be performed by a qualified medical professional with expertise specifically in age assessment, which ensures higher proficiency. Moreover, the Regulation dictates that medical results must be analyzed together with multidisciplinary evaluations to ensure a more reliable and holistic result. Some other improvements are being introduced regarding the information shared with the applicant. Both the applicant and their parents or representatives will be informed of the possibility of undergoing an age assessment, the methodology used, and its consequences. Authorities must ensure it is done in a language they are known to understand, and in a child-friendly and age-appropriate manner. Consent from both is required, but a refusal to undergo a medical examination will create a rebuttable presumption that the applicant is not a minor.
The Regulation also reverses the burden of proof regarding documentation involved in the assessment: all relevant documents available shall be considered genuine unless there is evidence to the contrary. Furthermore, all documents relating to the assessment must be included in an applicant’s file, allowing for the introduced system of mutual recognition to be effective. Now, any decision regarding age assessment of an applicant will have to be recognized by all other Member States if conducted following EU law.
3. Remaining and upcoming flaws
Despite notable improvements, several concerns remain and new ones arise. Under the new Regulation, an emerging risk is associated with the broadened scope of Article 2, as the possibility of being subjected to an age assessment during the asylum procedure is no longer limited to unaccompanied minors, but extends to children arriving with family members whose age is questioned.
Although multidisciplinary assessments are now a prerequisite, their reliability is unclear. Regarding further review of documentation like birth certificates, UNICEF reports that 3 out of 10 infants worldwide have not been registered and 4 out of 10 do not possess a birth certificate.[9] On psychological evaluation, the Norwegian Institute for Health stated that there is a “lack of research evidence on the application and validity of using psychological tests for chronological age estimation in adolescents and young adults”[10]. In addition, mere physical observation has very low accuracy to determine an exact age. Beyond the fallibility of these methods, many can be inconclusive on their own and must be combined. Yet there is no clear guidance in the Regulation on how to weigh these methods against each other or how to account for margins of error. Thus, multidisciplinary assessments could often fail to produce conclusive results. Consequently, medical examinations, which in the text are a measure of last resort (art 25(2) APR), may become a more common practice than expected.
The Regulation does not offer strong safeguards once medical assessment becomes possible. It does not explicitly prohibit the most invasive techniques, such as sexual maturity examinations, and the preference for less invasive methodologies is articulated as a recommendation, not a binding legal requirement.
As a final remark, Article 25 does not establish a separate right of appeal for the age assessment decisions. This leaves it to the discretion of Member States to create this separate right in their national legal systems, or to simply allow for the appeal of the asylum application decision as a whole. This will inevitably create divergences in the right to an effective remedy, exacerbating the situation in which some minors may await a final decision on their asylum status for a long period of time.
All these risks are amplified by the creation of a mutual recognition system across the EU. Since the methodology is neither harmonized nor standardized, widely divergent age assessments will automatically be recognized despite some of these practices being against the best interest of the child or infringing upon their rights.
4. Potential impacts on the Fundamental Rights of the Child
These remaining and newly outlined risks, both those emerging directly from the text of the Regulation and those which may emerge from its practical application, can pose a threat to the constellation of fundamental rights of the child contained in the CRC, CFR and ECHR.
The first potential violation arises in cases where medical procedures are performed. Given that invasive medical procedures are not prohibited and that the preferred use of least invasive methodologies is merely a recommendation, children may still be subjected to medical practices that interfere with their bodily integrity and privacy. Sexual maturity observation poses a particular risk, since it involves the removal of clothing and in some cases the examination of intimate parts or genitalia. This may constitute a violation of the right to privacy (Article 16 CRC) and of the prohibition of degrading treatment (Article 37 CRC, Article 3 ECHR, Article 4 CFR), while also undermining children’s dignity (Article 23 CRC, Article 1 CFR).
Another area of potential impact arises in the given case that a misclassification of a minor as an adult occurs as a result of an age assessment. Both multidisciplinary and medical assessments have been proven to be far from infallible, which could lead to the erroneous classification of a minors as adults. This inevitably branches out into the loss of the special guarantees designed to safeguard the best interests of the child (a right enshrined in Art 3 CRC and Art 24 CFR) throughout the asylum procedure. A mistaken decision establishing an applicant as an adult would also be an infringement on the child’s right to a part of their identity (Articles 1,7 and 8 CRC).
Following on the effects of misclassifications, since neither law nor practice considers them as children, the child would lose their right to special protection and assistance in all steps of the asylum process (Article 22 CRC, Article 24.1 CFR). Their right to be heard would be affected through the loss of a personal, special and child-appropriate interview (Articles 12 CRC and Articles 24.1 and 41.2 CFR) and as “adults”, they would no longer enjoy the special reception conditions enshrined in articles 24.a & b, 26 and 27 in the Reception Conditions Directive.
Such classification furthermore involves an impact on their right to family life (Article 8.1 and 16.1 CRC, Article 7 and 24.3 CFR, Article 8 ECHR) since they would lose priority in family reunification and accompanied minors could be separated from their family. Unaccompanied minors may be put in accommodation unsuitable for their needs or not given housing at all, jeopardizing their right to an adequate standard of living which explicitly includes housing (Art 27 CRC), as well as the prohibition of degrading or inhuman treatment (Article 37 CRC, Article 4 CFR, Article 3 ECHR).
Minors who are legally considered “adults” could then be subject to an accelerated examination procedure of their application, and unaccompanied minors would lose the special protections they were entitled to in such situations through article 42.3 of APR. Since the acceleration reduces the time and quality of the assessment, it would further limit their already reduced procedural guarantees. In addition, minors, who are as a rule not to be detained now could be, and unaccompanied minors could be detained without it necessarily being a measure of last resort (as is established in art 13.2 of the RCD). This could potentially lead to a violation of their right to liberty (art 37 CRC, art 6 CFR, art 5 ECHR) and the prohibition of undergoing degrading or inhuman treatment, once again.
Overall, the absence of a separate right of appeal for age assessment affects children’s access to an effective remedy (Article 47 CFR, Article 13 ECHR) leaving them exposed to long term consequences of a badly performed age assessment or erroneous classification.
Conclusion
The reformed Article 25 contains a partial yet insufficient response to the concerns surrounding age assessment in the Asylum procedure in the European Union. While the introduction of an initial multidisciplinary assessment and some new procedural safeguards signify progress in the protection of the best interest of the child, the continued possibility of invasive medical assessments, unclear standards and the absence of dedicated appeal mechanisms reveal significant gaps in the protection of the rights of the child. Without a truly harmonized system and stronger safeguards, this reform risks perpetuating the vulnerability of migrant children and continuing to expose Member States to non-compliance of their international obligations regarding the rights of the child.
References
Committee, A.L v Spain, 10 July (CRC/C/81/D/16/2017)
Committee, J.A.B v Spain, 9 July 2019 (CRC/C/81/D/22/2017)
Committee, R.Y.S. v. Spain, 4 February 2021 (CRC/C/86/D/76/2019)
ECtHR F.B. c. Belgique, 6 Mars 2025, (Requête 22109/20)
ECtHR, Darboe and Camera v. Italy, 21 October 2022, (Application 5797/17)
European Asylum Support Office (EASO), Practical Guide on Age Assessment (2018) Accessed 12/03/2025: https://euaa.europa.eu/sites/default/files/easo-practicalguide-on-age-assesment-v3-2018.pdf
Médecins du Monde, “Age Assessment for Unaccompanied Minors: When European countries deny children their childhood”, 28 August 2015, Retrieved 12 March 2025, https://mdmeuroblog.wordpress.com/wp-content/uploads/2014/01/agedetermination-def.pdf
Sauer, Pieter J, Nicholson, Alf, Neubauer, David. et al. “Age determination in asylum seekers: physicians should not be implicated.” European Journal of Pediatrics, 175, (2016) 299–303
UNICEF, “The Right Start in Life: Global levels and trends in birth registration”, 2024, retrieved 29 March 2025: https://www.unicef.be/sites/default/files/2024-12/TheRight-Start-in-Life_Dec-2024_UNICEF.pdf
UNICEF, “The Right Start in Life: Global levels and trends in birth registration”, 2024, retrieved 29 March 2025: https://www.unicef.be/sites/default/files/2024-12/TheRight-Start-in-Life_Dec-2024_UNICEF.pdf
World Health Organization, “Communicating radiation risks in pediatric imaging”, 2016, retrieved 20 March 2025: https://iris.who.int/bitstream/handle/10665/205033/9789241510349_eng.pdf?sequence=1
[1] Médecins du Monde (MdM) “Age Assessment for Unaccompanied Minors: When European countries deny children their childhood”, 28 August 2015, Retrieved 12 March 2025, https://mdmeuroblog.wordpress.com/wp-content/uploads/2014/01/age-determination-def.pdf, ps. 5 and 17.
[2] European Asylum Support Office (EASO), “Practical Guide on Age Assessment”, 2018, retrieved 12 March 2025: https://euaa.europa.eu/sites/default/files/easo-practical-guide-on-age-assesment-v3-2018.pdf, ps. 54 and 59.
[3] Ibid, p.59
[4] EASO, supra note 2, p.58
[5] World Health Organization, “Communicating radiation risks in paediatric imaging”, 2016, retrieved 20 March 2025: https://iris.who.int/bitstream/handle/10665/205033/9789241510349_eng.pdf?sequence=1
[6] Pieter J Sauer et al, “Age determination in asylum seekers: physicians should not be implicated.” European Journal of Pediatrics, 175, (2016), p.301
[7]Committee, A.L v Spain, 31 May 2019, (CRC/C/81/D/16/2017); Committee, J.A.B v Spain, 9 July 2019, (CRC/C/81/D/22/2017); Committee, R.Y.S. v. Spain, 4 February 2021 (CRC/C/86/D/76/2019)
[8] ECtHR, Darboe and Camera v. Italy, 21 October 2022, (Application 5797/17) §199 ; ECtHR F.B. v. Belgium, 6 March 2025, (Requête 22109/20)
[9] UNICEF, “The Right Start in Life: Global levels and trends in birth registration”, 2024, retrieved 29 March https://www.unicef.be/sites/default/files/2024-12/The-Right-Start-in-Life_Dec2024_UNICEF.pdf, p. 8
[10] Kristoffer Yunpeng Ding et al, “Age Estimation in Adolescents and Young Adults by Psychological Assessment of Maturity: A Systematic Review”, Report 2018, Norwegian Institute of Public Health, 2018, p.16
Alejandra Fernández de Angulo is a legal professional specialized in European Union law, currently working as a Legal Assistant at the Brussels Delegation of the General Council of Spanish Lawyers while obtaining her lawyer qualifications. She holds an LL.M. in European Law from the College of Europe in Bruges and a double Bachelor’s degree in Law and Political Science from the Universidad Autónoma de Madrid.
Alejandra has developed strong expertise in migration, asylum, and fundamental rights through legal assistance and strategic litigation at Fundación Raíces in defense of unaccompanied migrant children in Spain, and humanitarian work at the ELNA Maternity Centre in Athens. She is also locally engaged in migration and integration initiatives in Brussels through with the Umbrella Refugee Committee.
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