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House of Commons approves use of scientific tests on children, Lords to decide on Monday
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The two statutory instruments that will pave the way for the use of x-rays and magnetic resonance imaging (MRI) scans of children’s bones and teeth for the purpose of immigration control are on track to be approved by Parliament. This is despite concerns being raised around the inability for children to freely consent to these procedures, the ethical issues around lone children’s ability to consent to invasive physical procedures and the fact that serious questions remain over the accuracy of any such tests.
The legal framework
Discussions about using scientific methods to assess the age of unaccompanied asylum seeking children have been coming up over the years, however, it has only been relatively recently when the Government decided to legislate in this area. Part 4 of the Nationality and Borders Act 2022 brought age assessments within the immigration statutory framework. Section 52 allows the Secretary of State to make regulations specifying scientific methods that may be used to determine a person’s age, however, he has to seek scientific advice before deciding on the method(s) that is appropriate.
Additionally, section 52(7) places a duty on the decision-maker to make a negative credibility finding (i.e. to disbelieve them) when a person does not consent to the use of these methods.
These already concerning developments were progressed further in the Illegal Migration Act 2023. Section 58(2) of the Act allows for an automatic assumption of adulthood if the person refuses to consent to a scientific method to determine their age. This will expose many children at risk of being automatically declared as adults, a determination that is contrary to the advice given by the Home Office’s own Age Estimation Science Advisory Committee in their report from January this year.
On 14 September 2023 the Ministry of Justice laid a draft statutory instrument, the Justification Decision (Scientific Age Imaging) Regulations 2023, to authorise the new use of x-rays. Such justification and approval are requested under the Justification of Practices Involving Ionising Radiation Regulations 2004.
In order to take forward the powers under Section 52 of the Nationality and Borders Act 2022, the Home Office also laid a draft statutory instrument, the Immigration (Age Assessments) Regulations 2023. These are both subject to parliamentary approval, when passed they would authorise the use of x-rays and MRIs in age assessments.
Two debates by the Delegated Legislation Committee took place in the House of Commons on Monday 20 November 2023, where these statutory instruments passed almost unopposed. This was despite the lack of information that has been provided by the government around these changes, including the lack of an impact assessment. The government has still not explained who will conduct these medical assessments or what impact the access to x-ray and MRI equipment for these purposes will have on the NHS and patients who are waiting for urgent and necessary medical treatments.
Many of these issues have also been raised by the House of Lords’ Secondary Legislation Scrutiny Committee who said that these changes should not take place before a proper consultation and once the costs and wider impact have been analysed. The committee also described key elements of the design process and explanatory memorandum as “inadequate”.
The next debate is taking place in the Lords on Monday 27 November. There is a proposed amendment by Baroness Brinton for the regulations to be withdrawn until more information has been provided and we would encourage peers to support this amendment.
Together with the Royal College of Paediatrics and Child Health, the Refugee and Migrant Children’s Consortium, British Association of Social Workers, Refugee Council has raised our concerns directly with the Home Office. It is clear this is yet another proposal which will not improve the system. On the contrary, it will slow down the decision-making process, increase the volume of challenges at times when courts and tribunals are under significant pressure and expose children to unnecessary distress and safeguarding risks. As our data and collective experience of working with this group shows, significant numbers of children are already erroneously placed in adult asylum system.
What the government should do instead is to improve their processing when children arrive, as visual decisions on age need to improve significantly. At the very least, there should be an appropriate adult present and the cutoff point for visual determinations of whether a person is a child or an adult should be increased from 18 to 25 years.
The government should also publish data on the number of children incorrectly treated as adults by these officials and subsequently taken into care when referred to a local authority. Unless the government is transparent about what it is doing with age assessments, it will not be impossible to scrutinise the impact of these worrying changes.
Without taking serious steps to address the issues that already exist with age assessments, the use of scientific methods will achieve nothing but harm. We urge the House of Lords to put the safeguarding of children at the heart of the debates on Monday and to fight for a system that provides children with the care and support they need as they go through the asylum system.
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