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An Age-Old Question: The Law of Refugee Age Testing

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About The Author

Keir Baker (Consulting Editor)

Keir is a Trainee Solicitor currently sitting in the Finance department at a major US law firm. A law graduate from Selwyn College, Cambridge University, his main areas of interest are Employment, Discrimination and Competition law. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

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Refugees have done more for my heart and my spirit than I can ever express in words.

Angelina Jolie

Figures show that in 2015 alone, 90,000 unaccompanied children sought asylum across all the Member States, with 13% of these applicants under of the age of 14.

The issues of processing the asylum applications of unaccompanied children pose interesting legal questions. In both European and domestic law, unaccompanied children are the subject of special provisions: for example, as Jessica Johnson explained previously for Keep Calm Talk Law, they can in certain circumstances bypass the provisions of the Dublin System, which requires asylum applications to be processed by the Member State in which the migrants first arrived. But these exemptions are subject to the proving of the child’s minority. Therefore, older children lacking recognised legal documentation that proves their age will face procedural struggles and may be wrongly designated as adults.

This is a complex area of the law which is under increased media scrutiny thanks to the comments of Tory MP David Davis and sections of the tabloid press, as well as in reaction to the Papua New Guinea Supreme Court’s decision as to the legality of Australia’s detaining of children in the offshore Manus Island immigration detention centre. This article will, therefore, outline the process that UK immigration officials must follow when determining the age of refugees, and examine whether the legal status of age assessment under English law is satisfactory.

The Process

In the majority of circumstances, including for the purposes of age determination tests, the applicable legal definition of a child under UK law originates from Article 1 of the United Nations Convention on the Rights of the Child: a child is thus “a human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier". Some deviations to which this definition alludes, where UK law has specified the age of maturity to be different, includes child protection, age of consent, and age of criminal responsibility.

The government has published guidance which outlines the steps that must be taken throughout the age determination process. As well as immigration officials, this guidance may also be relevant to local authorities and a judicially reviewing court, depending on the extent of the doubt surrounding the veracity of the applicant’s claims of minority. Indeed, under Section 55 of the Borders, Citizen and Immigration Act 2009 (BCIA 2009), each and every decision-maker that plays some role in processing the application is under a statutory duty to ensure they carry out their function with close regard to the need to safeguard and promote the welfare of the applicant.

Immigration Officials

When an asylum seeker claims to be a child, the immigration officer originally tasked with dealing with their case must make an initial determination as to the veracity of that claim, taking into account the applicant’s physical appearance and demeanour. The published guidance holds there where the case could be considered borderline, the applicant is to be given the benefit of the doubt.

But where the immigration official feels the evidence – traditionally the physical evidence – ‘very strongly’ suggest the applicant is not a minor, the applicant has to provide credible documentary evidence – such as a valid passport or a birth certificate – to verify their claim. If, as is often the case, the asylum seeker cannot produce that documentation, the immigration official is then obliged to refer the case to social workers under the employment of a relevant local authority. And, in the interim period, the applicant will be treated for all intents and purposes as an adult.

Local Authorities

Sometimes, there will be an on-site social worker able to carry out the assessment. More commonly, however, the applicant will be under a burden to present themselves to social services for an age assessment: a process that is carried out in accordance with the guidelines set out by Stanley Burton J in R(B) v London Borough of Merton [2003], known as the ‘Merton Guidelines’. They state that where the age of the applicant is unclear and no reliable documentary evidence exists, a holistic approach should be taken which requires the local authority to assess the applicant’s credibility, physical appearance, demeanour, ethnic and cultural background, family circumstances and previous education.

In A v London Borough of Croydon [2009], it was accepted that – when examining the applicant’s credibility – when the applicant outlines a personal history that is clearly fabricated, this is not necessarily indicative of an untrue age, because there may be other prevailing reasons for the applicant to lie. However, the court in R (I & O) v Secretary of State for the Home Department [2005] emphasised that local authorities must be aware that applicants will understand that being designated a minor will put them in a preferable situation and may be prepared to lie to gain that status.

The Merton Guidelines also hold that when a local authority conducting an initial age assessment forms the view that an applicant is lying in order to gain access to preferential treatment, the applicant must be given the opportunity to address the matters that have led to that view. Furthermore, the applicant is also granted the opportunity to have an appropriate adult present, who can take on the role of a guardian.

In relation to physical examinations, the Merton Guidelines hold that they are not necessary, but should always be considered helpful evidence. In R (C) v London Borough of Merton [2005], it was held that where a local authority decides to ignore the conclusions of a physical examination conducted by a medical professional when making its decision as to an applicant’s age, the local authority comes under a duty to give reasons as to why.

Yet it has been repeatedly stressed that the conclusions of a physical examination are not conclusive. In A v London Borough of Croydon [2009], Collins J was held that while physical examinations must be considered and given appropriate weight, their lack of complete accuracy - they have a margin of error of around two years as variations between populations, the effects of poor nutrition and environmental stress increase the probability of variations from any identifiable norm– means they do not generally carry any greater weight than any other aspect of an assessment that followed the Merton Guidelines. Indeed, Collins J in A went so far as to accept that “there are no reliable means whereby an exact conclusion [on an applicant’s age] can be reached.”

Judicially Reviewing Courts

If the local authority reaches a conclusion that the applicant believes was unfairly reached or unreasonable, they can challenge it through the process of judicial review. Where a court – as occurred in R (T) v London Borough of Enfield [2004] EWHC 2297 – considers a physical examination as part of an age assessment occurred that was unfair or unduly hostile, particularly where the applicant was in a vulnerable condition, it can order the making of a new age assessment following the Merton Guidelines and the discarding of the earlier one.

More potently, the Supreme Court held in R (A) v London Borough of Croydon; R (M) v London Borough of Lambeth [2009] – where the case concerned a dispute about whether an individual was a child for the purposes of Section 20 of the Children Act 1989 – that it is possible for the judicially reviewing court itself to determine the age of that individual on the balance of probabilities. Lady Hale explained that:

[T]he question whether a person is a ‘child’ [has] a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.

Legal Analysis

The current procedural rules for age determinations have been largely developed in a piecemeal manner via the evolution of social services practice supplemented by legal challenges. It is an extremely problematic process as a result, particularly because inconsistencies inevitably arise.

For one thing, the scale of the resources available to different local authorities – particularly those currently suffering from the full force of austerity – will mean that the quality of the age assessments carried out in differing areas of the country will vary. For an applicant without the capacity to take a decision to judicial review, the process relies too heavily on the subjective view of individual social workers – indeed, in the concerning judgment of R (P) v London Borough of Croydon [2009] saw decisive weight given to the views of support workers wholly unqualified to carry out age assessments.

Furthermore, greater clarification is needed as to the relative weight that must be given to the factors outlined in the Merton Guidelines when the social worker is making their assessment. Evident in some of the case law – such as in R (A) v Liverpool City Council [2007], where undue emphasis was placed on the results of a dental examination – is that some age assessors have a tendency to reach a conclusion based on one piece of evidence and failing to take into account varied sources of information. As Christine Mougne and Amanda Gray have argued, in different contexts certain factors might require a greater application of weight in some cases than in others – thus, the Merton Guidelines should be clarified to be a flexible set of guidelines that can be tailored to a particular case, rather than a rigid checklist.

It would seem too, that the physical assessments often carried out are highly intrusive, lacking proven scientific support for their accuracy, and potentially violating the examined applicant’s rights under various human rights treaties including the European Convention of Human Rights, if lacking the consent of the asylum seeker. Questions have thus been raised by some charities as to their legality, leading to the Committee on the Rights of the Child reinforcing the importance of these examinations being conducted ‘in a scientific, safe, child and gender-sensitive and fair manner, avoiding any risk of violation of the physical integrity of the child, giving due respect to human dignity, and, in the event of remaining uncertainty, should accord the individual the benefit of the doubt.’

Conclusion

There is no doubt that the role of determining the age of an unaccompanied refugee is fraught with difficulties, whether they be scientific or emotional. In many ways, the piecemeal nature of the process is to be expected: it is hard to envisage how a statutory framework would ever be able to account for all the different circumstances that local authorities and immigration officials will encounter. It follows that the introduction of the duty under Section 55 of the BCIA 2009 brings an assurance of a degree of consistency.

But more is needed – the current process relies too much on impressionistic judgments made by individuals who may not always be qualified to make them. Resources permitting, a central independent authority or increased levels of judicial insight would help ensure that every applicant claiming to be unaccompanied minor seeking to flee hardship and brutality gets the refuge, safety and means that they deserve.

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Tagged: Anti-Terror, Human Rights, Immigration, Judicial Review, Medical Law & Ethics

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