The House of Lords’ Secondary Legislation Scrutiny Committee has published a report criticising the Home Office on two fronts. This is in relation to Draft Immigration (Age Assessments) Regulations 2023 and linked Draft Justification Decision (Scientific Age Imaging) Regulations 2023, and the Immigration and Nationality (Fees) (Amendment) (No. 2) Regulations 2023. All of these are drawn to the special attention of the House of Lords, which is action the committee can take when it identifies an issue with secondary legislation.

Age assessments

These regulations provide for the Home Office to carry out non-therapeutic testing on children, a process described as ‘unethical’ by the Royal College of Paediatrics and Child Health. If the children do not give consent, their credibility will be damaged and would risk having their asylum claim refused.

Unsurprisingly, the committee received several responses to the latter point and so they asked the Home Office what their position was on whether an unaccompanied child could provide informed consent to this process:

When we questioned the Home Office on this point, it said that UASCs would first be assessed for ‘Gillick competence’ (that is, whether they are mature enough to consent). Those not assessed as competent would not be asked to consent and would not undergo any tests.

More guidance on this will no doubt follow from the Home Office at some point. In the meantime we have the Department of Health’s ‘Reference guide to consent for examination or treatment‘, although it is difficult to see how this could be applied to a traumatised unaccompanied child who does not speak English and probably does not have access to a lawyer.

In relation to the point that consent cannot be freely given in these circumstances, the Home Office told the committee that there is “precedent in other domestic legislation for negative consequences being applied where an individual refuses to submit to a physical medical examination; for example, in the assessment of certain welfare benefits.” No further details were given, so I am unclear as to whether the other legislation referred to is applied to children. The committee recommended that the House of Lords question ministers further on this issue of consent.

The government’s assertion that the UK is one of the few countries in Europe that does not use scientific age assessments was robustly challenged by the Helen Bamber Foundation. Their evidence included a comment by the Council of Europe that the use of radiation for age assessments “is in conflict with medical ethics and potentially unlawful”.

The report also criticised the government for the lack of an impact assessment or any estimate of costs for these changes. The response from the government was that “the policy and design are still under development”. The committee pointed out that that policy should only be made after a proper consultation and once the costs and wider impact have been analysed. It said that the key elements of the design process and explanatory memorandum were “inadequate”.

Immigration fees

Unlike the age assessment regulations, those on these fee increases do not have to be voted through Parliament. The committee commented that:

this is the third instrument from the Home Office in just over a month that has breached the convention that at least 21 days should be allowed between laying an instrument and bringing it into effect. In none of the cases has it been clear that urgent action is essential, and in this case the breach seems clear-cut as it resulted from the Home Office’s failure to organise its paperwork in time.

The Home Office’s response to various questions from the committee is worth reading. For example, in relation to the inadequate notice given, they claimed that the short notice was due to “late amendment to the Regulations” and that delaying for two days would have cost the department £2 million pounds. They did not explain why migrants should instead bear that cost.

In response to concerns raised about people being pushed out of the immigration system by unaffordable fees, the Home Office said:

We have always provided for exceptions to the need to pay application fees for leave to remain in a number of specific circumstances. These include affordability-based waivers for entry clearance and leave to remain on family and human rights grounds, and for applications for child citizenship registration.

It is interesting that those particular examples were given by the Home Office given that the “affordability” threshold and fee waivers for children registering as British have not “always” been provided for at all. Both of these were in fact strongly resisted by the Home Office until they were forced into it through litigation (see our coverage on affordability here and children’s citizenship here).

The Home Office was also asked about the expected increase in fee waiver applications and the associated costs of that but they did not address this point.

The committee said that they “encourage the Home Office to consider whether the existing fee waiver system could be better publicised to encourage take-up amongst those who are entitled”. The Home Office may or may not adopt this suggestion but we at Free Movement have been promoting it fairly heavily and will continue to do so. Our guide on fee waiver applications is here, please do use and share it.

Conclusion

It will be interesting to see the debate on the age assessment regulations, although I expect the government to continue to try to dodge questioning on consent. On fees, while there is no vote on these regulations, the immigration health surcharge increase does need to be voted through and the committee has indicated that they will look at those regulations early in the next session of Parliament.