Age assessment of asylum seekers: where have we got to?

Summary:

Morally and ethically, unaccompanied children seeking asylum deserve to be treated differently than young adults seeking asylum, but such preferential treatment is fraught with the difficulty of ascertaining the correct age of asylum seekers. In 2022 the previous government established the National Age Assessment Board (NAAB) and legislation made provision for the use of x-rays and MRIs in age assessments. This article examines the role of NAAB and explains the current state of the processes involved in the age assessment of asylum seekers.

******************

Unaccompanied children seeking asylum are, understandably and for good reason, to be treated differently and more favourably than young adult asylum seekers. They are not to be detained, should be looked after by local authority children’s services and provided with accommodation, support and education. However, there has been a widespread belief that some young adults pretend to be children in order to gain these advantages. This is to the potential detriment of other children, not only because resources are limited but because it is inappropriate to have young adults in school and other settings with children. In order to tackle this issue, an entire system has developed to try to ascertain a young person’s true age. This article covers recent developments in the assessment process.

The roots of the current age assessment process has its basis in the case of B, R (on the application of) v London Borough of Merton [2003] EWHC 1689 (Admin) (14 July 2003) which laid down the minimum processes that should be followed before concluding that a person was not the age they said they were. This involves an assessment by two social workers, often in the presence of an independent observer and a detailed interview/assessment which seeks to elicit the individual’s personal and social history as well as observations on their physical features, maturity and manner of responding to questions.

This has given rise to a considerable number of legal challenges over the years, and judgments from the Supreme Court down on topics including what happens when there are conflicting age assessments, when should a person be re-assessed and the resources involved in undertaking such assessments.

It is in that context that in 2022 the National Age Assessment Board (NAAB) was established by the Nationality and Borders Act 2022, in order to oversee a new system for age assessments, review local authority assessments and carry out its own in some situations.

The creation of NAAB was not without controversy, particularly in social worker circles. The British Association of Social Workers urged practitioners not to take jobs with the NAAB, on the basis that it considered that practitioners' professional judgment risked being compromised, in the light of government rhetoric about adult asylum seekers exploiting the system by claiming to be children. However, the Nationality and Borders Act 2022 was also controversial because it made provision for regulations to be introduced which allowed a variety of ‘scientific methods’ for age assessments, such as x-rays of teeth and bones of the hands and wrist and MRIs of knees and collar bones. Multiple organisations, including the Royal College of Paediatrics and Child Health (RCPCH) and British Association of Social Workers, have voiced strongly-worded concerns about the introduction of such scientific age assessments in the UK, both because these methods are not reliable and also because they raise ethical issues and issues surrounding informed consent.

In Spring 2023 the NAAB became operational. So, nearly 18 months on from this, how is it going and where have we got to on use of x-rays and MRIs?

In 2023, an interim version of the committee, the (previous) government’s Age Estimation Science Advisory Committee, which included experts from relevant medical disciplines, concluded that scientific methods should be used alongside social work assessments of age to minimise the risks of claimants being wrongly found to be adults or children. Following on from that, in Autumn 2023 regulations were introduced which would allow the use of X-rays of teeth and hand and wrist bones, and MRI scans of the collarbone and knee bones, as part of age assessments. Opposition to the proposals continued but in the House of Commons debate on the regulations in November 2023, immigration minister Robert Jenrick said scientific checks would be “one piece of evidence” used within a “holistic, social worker-led assessment”. He said: “The decision will be made by a social worker” and “If that social worker believes, despite the scientific age-assessment evidence, that an individual is a minor, it will ultimately be up to them to make the final decision.”

On 9 January 2024, The Immigration (Age Assessments) Regulations 2024 were passed. Whilst the regulations came into force on 10 January 2024, as at today they have not yet been brought into practice.

So what role is NAAB playing in age assessments? Certain local authorities can make a referral to NAAB for an age assessment to be conducted and such a request must be made in accordance with the requirements set out in the guidance available here. In short, the conditions for NAAB accepting the referral are:

• the young person is an age disputed person and there is reasonable doubt that they are the age they claim (or are claimed) to be
• the NAAB has capacity to conduct the age assessment
• an age assessment is in accordance with the duty under section 55 of the Borders, Citizenship and Immigration Act 2009

NAAB age assessments are also required to be Merton compliant.

Interestingly however, there is little reporting on the success or otherwise of the NAAB and the number of age assessments it has conducted does not seem to be publicly available. However, last week it was announced that the Independent Chief Inspector of Borders and Immigration, David Bolt, would be examining the “efficiency, effectiveness and consistency of age assessments” carried out by the department. This will cover assessments carried out by the NAAB and also assessments by staff within the Asylum Intake Unit, where people register claims for sanctuary, and the Illegal Migration Intake Unit (IMIU), which registers people deemed to have entered the UK illegally. The IMIU also employs social workers to carry out age assessments.

That report will be awaited with interest.

SAMANTHA BROADFOOT KC, 20 September 2024

Samantha is a public lawyer, and highly ranked in the legal directories in this field as well as in immigration law. She acts for individuals and government departments and other institutions. She also sits as a Recorder and a part-time Coroner.