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MPs must reject cruel and unscientific age tests for asylum seekers

Young Ukrainians are slowly making their way to the UK. Will we penalise them on the basis of dodgy assessments, or will we welcome them?

Jennifer Downie IMG_1419.jpg
Jennifer Downie Ben Twomey
11 March 2022, 1.22pm
Young Ukrainian refugees pictured last week at a warehouse in the Polish city of Przemysl, having fled through the Medyka-Shehyni border.
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Hesther Ng / SOPA Images/Sipa USA

There is no known scientific method that can precisely determine a person’s age.

This poses a problem for the Home Office.

As you read this, Ukrainians are fleeing their homes and – slowly – making their way to the UK. Among them, heartbreakingly, will be unaccompanied children and young people.

Unaccompanied asylum-seeking children should automatically enter the care of the state.But many of them will have no documentary evidence of their birth date. And for some, it will not be clear whether they are under 18.

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When this happens, age assessments are usually undertaken, affecting the outcome of their asylum claim and their ability to access education, health services and welfare support.

The government, through its Nationality and Borders Bill, wants to introduce so-called “scientific methods” to do this.

The effectiveness and ethics of such methods to assess age have been challenged robustly by professional medical bodies in the UK. The Royal College of Paediatrics and Child Health argues that current methods for bone X-ray age assessments, such as the Greulich and Pyle methods, rely on X-rays taken from Caucasian children. In reality, the bones of children who are the same age can vary depending on ethnicity. 

Meanwhile, the British Society for Paediatric Endocrinology and Diabetes states that the timing of puberty is extremely variable and impacted by genetics as well as environmental and social factors, meaning, again, that children of the same age can appear very different from each other. And the British Dental Association has strongly opposed the use of dental X-rays, highlighting that they are particularly unreliable at establishing age in adolescents.

What’s more, the assessments can be traumatic for young people who are already fleeing situations no child should ever have to face.

Home Office failings

Age assessments have always been subject to legal and political scrutiny. In January this year, the High Court slammed the Home Office for pursuing a version of age assessments that was “inherently unlawful in the sense that it lacks essential safeguards”.

Mr Justice Henshaw ruled that Home Office policy of detaining young people for an age assessment immediately upon arrival in the UK, without an appropriate adult to support them, breached the law.

A recent investigation by The Independent raised the alarm over the Home Office’s growing involvement in age assessments, which are more commonly carried out by local councils and with the support of independent agencies like ours, the National Youth Advocacy Service (NYAS). It found that hundreds of young people were being placed in adult hotels and only moved to children’s services when charities intervened.

But rather than stepping back, the Home Office is intent on strengthening its role in age assessments.

Under the Nationality and Borders Bill, now entering its final parliamentary stages before becoming law, home secretary Priti Patel would have the authority to decide on the appropriate “scientific methods” to determine a young person’s age.

If the person in question refuses to consent to such methods, we are concerned that their asylum application could be negatively affected.

I know how traumatised they can be [by] the way in which they are often not believed – almost as if there is an assumption that they will not be telling the truth

Julia Neuberger

Last month saw both the Senedd (Welsh parliament) and Holyrood (Scottish parliament) refuse to consent to the Nationality and Borders Bill. The 39-15 rejection in the Senedd represents a symbolic victory for Wales – the Welsh government had declared in 2019 that it would be the world’s first “nation of sanctuary” for asylum seekers and refugees. Soon afterwards, members of the Scottish parliament followed Wales in rejecting legislative consent for the bill by 94 to 29. Northern Ireland’s first minister has also raised concerns with the prime minister.

But Westminster has the power to bypass the consent of the devolved nations, and has indicated in the text of the bill itself that it now intends to do just that.

Enter the House of Lords.

Robust debate in the House of Lords

In less than a fortnight, the bill has suffered a total of 19 defeats in the House of Lords, as amendments were debated and agreed.

During fierce arguments, critics of the age assessment clause highlighted the risk of re-traumatising asylum-seeking children, with crossbench peer Julia Neuberger telling the House: “From what [asylum-seeking children] tell us, I know how traumatised they can be, and have been, not only by their experiences in their home countries and on their incredibly difficult journeys, but by the processes they have been forced to go through once they have arrived in the UK, and the way in which they are often not believed – almost as if there is an assumption that they will not be telling the truth.”Labour peer Ruth Lister added that using so-called “scientific methods” such as dental x-rays to determine the age of children was “unethical”.

Other pressing concerns from the Lords attended to what would happen to the children assessed incorrectly by so-called “scientific methods” to be adults. If placed in detention or alone in accommodation as adults, these children could be left “at risk of abuse” and “with no safeguarding measures”.

Lords supporting the government’s age-assessment clauses pointed to plans to “monitor and evaluate the impacts of the policy”. Chillingly, these calls appeared to accept that young people could be treated as guinea pigs while the “scientific methods” were reviewed and perfected. This notion was opposed by the Lord Bishop of Durham, Paul Butler, who argued: “The child and their best interests, rather than deterrence, must be the starting point in designing these policies.”

The debate on Tuesday resulted in the most recent blow to UK government plans, as Baroness Neuberger’s amendment to the bill’s clauses on age assessments passed by 232 to 162.

Crucially, the amendment states that the home secretary must not allow the use of any “scientific methods” unless they receive written approval from the relevant medical, dental and scientific professional bodies that the method is both ethical and accurate beyond reasonable doubt for assessing a person’s age.

In other words, the successful Lords amendment may make it impossible for the home secretary to ever determine or put into use an appropriate “scientific method” to assess age. Instead, we at NYAS say the approach to determining age should put children and young people at its centre, led by the local councils and agencies that are best placed to support them – not the Home Office.

Sadly, we may not have heard the end of attempts to impose “scientific methods”. Once it clears the House of Lords, which is expected to happen on Monday, the bill will go back to the Commons, where MPs may choose to reverse the Lords’ amendments.

If this happens, the bill can ping-pong between the houses until an agreement is reached.

As that goes on, desperate young people seeking asylum from Ukraine and elsewhere will arrive in the UK hoping to encounter humanity and compassion.

Parliament has the power to make sure that they do.

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