Story updated 3 November 2021
Campaigners have accused the government of undermining practitioners’ knowledge and experience with its proposals to tighten age assessments for unaccompanied young people claiming asylum.
A group of children’s and refugee charities and the British Association of Social Workers (BASW) have raised concerns about the changes, which would enable the government to press councils to have children in their care age assessed and to refer their decisions for review by a new national body.
The measures, unveiled last month as amendments to the Nationality and Borders Bill and agreed by MPs today (2 November), would also allow the use of much-disputed “scientific” methods of age assessment. While these could only be carried out with appropriate consent, officials would have to take a refusal to consent to these as undermining the claimant’s credibility.
Campaigners also said the changes would place a “high standard of proof” on young asylum-seekers, which would “significantly increase the risk of children being wrongly treated as adults”.
While unaccompanied children claiming asylum are accommodated and supported within the care system, those deemed to be adults are simply housed and given £39.63 per week to live on, with some subject to immigration detention.
The committee of MPs scrutinising the bill agreed the measures today so they are now part of the legislation, and will almost certainly survive the remainder of its passage through the Commons because of the government’s effective majority of 85 seats. However, they may come under pressure when the bill goes to the House of Lords.
Age assessment board
The changes would introduce a “national age assessment board” (NAAB), appointed by the home secretary, to oversee the system, review local authority assessments and carry out its own in some situations.
In cases where the government doubted the age of a claimant under the care of a council, the authority would have to refer the case to the NAAB for assessment, assess the claimant’s age itself or inform the home secretary it was satisfied the person was the age they claimed to be. In the latter two cases, it would have to provide the home secretary with reasonable evidence. However, the provisions also allow the NAAB to carry out an assessment if the home secretary doubts a council’s decision regarding a claimant’s age – though the board’s decision as to age would be binding on the government.
Current statutory guidance on age assessments states that “it is likely that the local authority’s decision will be decisive in most cases”, though Home Office officials can question councils’ assessments if the findings do not seem evidenced or compliant with case law.
However, charity coalition the Refugee and Migrant Children’s Consortium (RMCC), which includes BASW, said the new provisions went further.
‘Undermining social workers’
In a briefing for MPs, it said: “Local authorities have long expressed frustration over having to conduct age assessments when Home Office caseworkers challenge their view that they see no reason to doubt a young person’s age. Introducing this change undermines the specialist knowledge and experience needed by social work professionals, whilst tying them up in unnecessary age assessment processes at the expense of their stretched resources.”
BASW said that while it supported the idea of an NAAB led by social workers that was part of a multi-agency, holistic approach to age assessments, it did not support it in its current form.
“We are concerned at the lack of transparency and accountability of the NAAB,” it said in a statement. “We also have great concern about the powers being used to override professional judgment.”
Speaking to the committee, government whip Craig Whittaker said: “The board will predominantly consist of qualified social workers who will be dedicated to the task of age assessments and the training and the sharing of expertise will ensure a more consistent approach to the task of age assessment.”
He added: “Local authorities will still retain the ability to conduct age assessments themselves if they prefer to do so or believe the person is actually the age they claim to me, then they must inform the Home Office accordingly.” In response to a question from an opposition committee member, Whittaker denied this was a “power grab” of local authority responsibilities by central government.
‘Scientific’ age assessments
A new clause in the bill would enable assessors to use methods such as “examining or measuring parts of a person’s body, including by the use of imaging technology” or analysing their saliva or other bodily samples to determine their age.
This is despite current Home Office guidance stating that it was not policy to commission dental checks or x-rays to inform an age assessment and that scientific methods “can only estimate age and as a consequence there will always be a margin for error”.
The Royal College of Paediatrics and Child Health stated in 2019 that the use of radiological assessment was “extremely imprecise and can only give an estimate of within two years in either direction”.
BASW expressed concern about the proposals and called for a relevant professional body to be required to approve the use of a “scientific method” as a valid way to determine age assessment before it was used.
Stewart MacLachlan, senior legal and policy officer at Coram Children’s Legal Centre, part of the RMCC, urged the Home Office to rethink its “regressive” proposals.
“It is simply unethical to legislate for the care of children based on unsound scientific research without the backing of the medical profession,” he said.
“Instead, we ask the Home Office to ensure that age assessments are child-centred, not routine, and recognise the lack of certainty in ascertaining age.”
Refusal to consent ‘damages credibility’
Such methods could only be used with “appropriate consent”, meaning that of the claimant, their parent or guardian or someone else able to consent on their behalf – with this group being specified by the government in regulations.
However, the new clause also states that decision makers would need to take a refusal to consent, either by the person or their representative, as “damaging the age-disputed person’s credibility”.
BASW said it strongly opposed this, saying that refusing physical examinations should not have any bearing on a person’s credibility.
“Many people who come to the UK will have endured significant trauma including physical and sexual abuse and may have a deep distrust of medical professionals through their life experiences,” it said in a statement.
“Further subjecting them to invasive procedures is not an approach we can accept.”
In its briefing, the RMCC said: “This will basically force children and young people to undergo assessments that may be harmful.”
Standard of proof ‘too high’
The consortium also criticised the standard of proof written into the bill for determining age following assessment, which is the “balance of probabilities”.
This is the same standard as applied in the courts when assessing a claim for judicial review of a government decision on a person’s age. However, the tribunal that considers asylum appeals employs a lower standard of proof for whether a claimant is a child – that of “reasonable degree of likelihood”. However, unlike in judicial review cases, where there is no burden of proof, in tribunal cases, this falls upon the claimant.
In its briefing, the RMCC said balance of probabilities was too high a standard to apply, and that it would “significantly increase the risk of children being wrongly treated as adults”, given the complicated nature of assessing age.
The Scottish National Party’s shadow home affairs spokesperson, Stuart McDonald, a vocal critic of the bill, said there was “no evidence to justify any” of the proposals.
“The bill gives the home secretary huge powers to demand controversial and unreliable so-called ‘scientific’ methods of assessment, and to pressure young people into consenting to them by drawing adverse inferences if they do not,” he said.
“Furthermore, while in theory a national body could help support local authorities with their responsibilities, it seems more likely that the home secretary will instead use it as a means for demanding more and repeat assessments where she isn’t happy with what local authorities are saying, supplanting instead of complimenting their role.
A Home Office spokesperson said its proposals would “stop abuse of the system while supporting those in genuine need”.
“We cannot allow asylum seeking adults to claim to be children or children being wrongly treated as adults, both of which present significant safeguarding risks,” they said.
“Age assessments are challenging and we are taking a number of steps to improve them. This will widen the evidence base for social workers to consider when making assessments and lead to better informed decisions.”