In what seems to be a prelude to the introduction of the use of ionising radiation (x-rays) for non-medical reasons on children, the government has published the Justification Decision (Scientific Age Imaging) Regulations 2023. There is also a draft explanatory memorandum containing a statement by the Secretary of State for Justice that in his view the regulations comply with the European Convention on Human Rights.

I refer to children here as there is zero doubt that children will be subject to these processes because the Home Office incorrectly deems them to be adults. Some of those to whom these processes are applied may turn out to be adults.

What do the new regulations do?

These are health and safety regulations, made in accordance with regulation 4 of the Justification Decision Power (Amendment) (EU Exit) Regulations 2019. This replaced the Justification of Practices Involving Ionising Radiation Regulations 2004 after Brexit.

The explanatory memorandum to these regulations states that the regulations laid down “basic safety standards for protection against the dangers arising from exposure to ionising radiation”, and required that “new classes or types of practice resulting in exposure to ionising radiation are ‘justified’ before being adopted. For these purposes, ‘justified’ means that the individual or societal benefit resulting from the practice outweighs the health detriment that it may cause”.

The process for justification is set out in the Justification of Practices Involving Ionising Radiation Regulations 2004. Regulation 4 here says that justification is needed where the process is new. Paragraph 6.3 of the explanatory memorandum says that this has been deemed a new practice, but that the proposed use of x-rays was justified.

Sections 52 and 53 of the Nationality and Borders Act 2022 set out the requirements for using these methods. This includes the need for scientific advice that the method is appropriate.

Paragraph 6.4 of the draft memorandum says that the Secretary of State for the Home Department has received advice from the Home Office Chief Scientific Adviser and the Age Estimation Science Advisory Committee recommending the use of MRI and Radiography methods.

The exact recommendation from the Age Estimation Science Advisory Committee’s report in January 2023 was that “The use of ionising radiation must be limited, with the ultimate aim of eradicating its use. Continuing research into the use of non-ionising imaging, such as MRI, should be supported”. Meanwhile, the Royal College of Paediatrics and Child Health has described the proposals as “unethical”.

If a person declines to consent to this process, section 58 of the Illegal Migration Act 2023, which is not yet in force, provides for regulations to be made which will allow such a decision as being deemed to damage their credibility. This means that if a child refuses to be x-rayed, they are less likely to be believed in their substantive asylum claim.

The Age Estimation Science Advisory Committee also recommended that children “should be provided with clear information explaining the risks and benefits of biological evaluation in a format that allows the person undergoing the process to give informed consent and no automatic assumptions or consequences should result from refusal to consent”. The ethics of accepting one recommendation but not the other are highly questionable.

What methods will be used?

More draft regulations have also been published, the Immigration (Age Assessments) Regulations 2023. These specify the four scientific methods that will be used. These are:

• the use of radiographs to assess the mandibular third molars
• the use of radiographs to assess the bones in the hand and wrist
• the use of magnetic resonance imaging (MRI) to assess the distal femur and proximal tibia
• the use of MRI to assess the clavicle.

These regulations are provided for in section 52(1) of the Nationality and Borders Act 2022.

What happens next?

If the regulations are approved by both Houses of Parliament, then the Home Office will still need to implement the changes. This will mean they will need to find medical professionals who are prepared to carry out this work. I suspect this will be possible, but hope that it will not be easy.

Conclusion

Both draft regulations are subject to the draft affirmative process, which means that both Houses of Parliament need to pass them via a vote. The Lords Secondary Legislation Scrutiny Committee will look at the details of the policy and report to the House of Lords before the vote there. The committee will consider external evidence in accordance with their guidelines and many concerned professionals and organisations may wish to make submissions in advance of this consideration.