The European Court of Human Rights has handed down a significant judgment concerning the age-assessment process and rights of child asylum seekers. In Darboe and Camara v Italy (Application no. 5797/17), the court found that the Italian government had breached Articles 3 and 8 of the European Convention on Human Rights in relation to its treatment of a 17 year old asylum seeker from Guinea. There had also been a breach of the applicants access to effective remedies under Article 13. The judgment describes a litany of failures, all stemming from an initial X-ray assessment from which a doctor concluded with apparent certainty that the applicant was 18 years old.

The applicant arrived in Italy in 2016. He was initially treated as a 17 year old child, but the local authority requested that a medical examination be carried out to determine his age. A doctor X-rayed his hand and determined that the applicant was 18 years old. He made no reference to the margin of error, which is usually between 6 months and 2 years. As a result, the applicant was housed in the Cona reception centre, which is a former military facility described in the judgment as a collection of several enormous tents. The centre was designed to house 542 people, but in fact accommodated around 1,400 people. The reception centre only had 25 staff on site and very limited medical care was provided by overwhelmed local GPs.

The applicant found lawyers and they applied to the Strasbourg court for interim measures under a Rule 39 indication. When they were granted the applicant was transferred to a reception centre for children.

Positive obligations under Article 8 ECHR

The court held that Article 8 includes positive obligations to comply with the requirements of international law regarding the asylum and age-assessment processes. As the court explains, the age of a person is a part of their personal identification, and recognition of a person’s status as a child is crucial for protecting their rights:

The Court considers that the age of a person is a means of personal identification and that the procedure to assess the age of an individual alleging to be a minor, including its procedural safeguards, is essential in order to guarantee to him or her all the rights deriving from his or her minor status.

It also emphasises the importance of age-assessment procedures in the migration context. The applicability of domestic, European and international legislation protecting children’s rights starts from the moment the person concerned is identified as a child. Determining if an individual is a minor is thus the first step to recognising his or her rights and putting into place all necessary care arrangements. Indeed, if a minor is wrongly identified as an adult, serious measures in breach of his or her rights may be taken.

Procedural failures of the Italian system

Rather than criticising the substantive decisions made in this case, the court chose to focus on procedural failings by the Italian authorities. It identified the following mistakes:

• The authorities failed to promptly appoint a legal guardian or representative;
• When the applicant applied for a legal guardian or representative the domestic court responsible for the application failed to provide a decision;
• The initial medical report completed using X-ray analysis was not served on the applicant; and
• No proper decision was issued, which prevented the applicant from launching an appeal.

The cumulative effect of these errors was that the applicant spent four months at the Cona reception centre for adults, and he was not able to submit his asylum request.

It is a little frustrating that the court did not investigate in more detail some of the egregious failures by the Italian authorities, in particular the initial decision to rely on X-ray analysis to determine the applicant’s case. The court simply commented that “[i]n these circumstances, the Court sees no need to examine the existence or validity of his consent to undergo a medical examination, or to assess its appropriateness”.

A judgment on reception conditions

The applicant submitted that there was no suitable reception centre, and no way to complain about the reception conditions. The court accepted the his submission that being subject to four months at the Cona reception centre was a violation of Article 3. The Italian government had little to say about what had happened at the Cona reception centre, and simply confined themselves to relying on improvements since the applicant’s stay there:

The Government, for their part, did not dispute the information and figures presented by the applicant and confined themselves to asserting that renovations had been carried out in the reception centre to the heating, hot water, canteen service, educational and recreational activities, healthcare and staff (specifically psychologists and cultural mediators).

The Court notes, however, that they did not show that these improvements had taken place before the applicant’s arrival in Cona, and that the need for such interventions rather confirms the previous insufficiency of services and facilities during the applicant’s stay there.

The court recognised the Italian government’s concerns about experiencing a rapid influx of asylum seekers but emphasised the absolute nature of Article 3 to find that a violation had taken place.

A statement of principle

As with most Strasbourg decisions, the importance of this case lies in the statements of principle. They recognise the importance of a proper age-assessment process which complies with international law standards as part of the wider asylum system, include access to effective remedies where compliance is in doubt. Even in Italy, the factual findings made by the court are unlikely to have significant practical implications. Since these events took place the Italian government has taken steps to ensure that domestic law and practice reflects the requirements of international law. The case will be useful for ensuring that the age assessment process in the United Kingdom complies with international law requirements, even where those requirements have not been directly incorporated into domestic law.

With thanks to Greg O’Ceallaigh for highlighting the case.

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