My Lords, I have laid a regret amendment to both the Motion on the Justification Decision (Scientific Age Imaging) Regulations and the Motion on the Immigration (Age Assessment) Regulations. I did not do this lightly but believe that the Government are contradicting themselves in moving ahead with legislation that medical and dental experts say should not be used yet. Despite substantial discussions on amendments during passage of the Illegal Migration Bill, many of which were supported across the House, when faced with the evidence on whether medical evidence, such as X-rays of wrist bones and third molars, was reliable, the noble Lord, Lord Murray of Blidworth—I am pleased to see him in his place—said on 12 June at the Dispatch Box:
“I assure the noble Baronesses, Lady Lister and Lady Brinton, and other noble Lords that the regulation-making power will not be exercised until the science is sufficiently accurate to support providing for an automatic assumption of adulthood”.—[Official Report, 12/6/23; col. 1814.]
So, can the Minister please explain what changes have happened in the science world in the past six months to change the Government’s approach on this?
Further, there is no provision in the SI for future monitoring and review of the policy. The Explanatory Memorandum for the age-assessment SI quotes the contested teeth and bone measurement and states:
“As per the AESAC report, the Home Office will not use the scientific methods to determine an age or age range, but rather use the science to establish whether the claimed age of the age disputed person is possible. This will be done by determining which hypothesis the science is more supportive of; the hypothesis that the assigned age by the social worker is possible versus the hypothesis that the claimed age is possible”.
The Secondary Legislation Scrutiny Committee in its 55th report for the 2022-23 Session criticised both sets of regulations. It states:
“The Government did not provide an Impact Assessment or any estimates of the costs, stating that ‘the policy and design are still under development’. This is not the way in which a policy should be made; it should only be brought forward once its costs and wider impact have been analysed”.
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The Government rely heavily on the AESAC report Biological Evaluation Methods to Assist in Assessing the Age of Unaccompanied Asylum-seeking Children, but they minimise that report on the technology outlined in the SI. Recommendation 8 in the executive summary states:
“Dental and bone images should be acquired by those with the relevant training and expertise and reported by those with expertise in interpreting images for age estimation”.
On radiography, paragraph 4.18 states:
“However, it is the view of the committee that there is as yet insufficient research undertaken to demonstrate the validity of MRI to allow this method to be used with confidence”.
Paragraph 4.24 states:
“the interim committee urges a move away from the use of radiography as soon as the research evidence makes it feasible to do so”.
Paragraph 4.39 states:
“Caution is advocated in the use of a methodology that is not designed for the purpose to which it is applied and against which it has not been tested adequately. Therefore, further validation of the approach is advocated before it could be considered for age assessment in UASC”.
Finally, paragraph 10.8 states:
“The interim committee recommends further investigation into development of the following methods to assist with the assessment of age”
and goes on to cite,
“third molars … hand/wrist ... Baseline assessment of accuracy and repeatability of the Merton-compliant age assessment process … use of the likelihood ratio to compare the relationship between claimed age and Merton assigned age via biological methods”.
They are all referred to in these SIs.
The AESAC is laying out the investigation and research that must be done to give confidence that these methods can be relied on in the future. These SIs are not just about seeing if something is possible, but the Home Office’s committee says much detailed work needs to happen first. Can the Minister say what further published evidence there is to support the introduction of these methods since that report was published just over one year ago?
What about the concerns of the Children’s Commissioner and the Age Estimation Science Advisory Committee regarding the consequences should a child refuse to consent to imaging? The Illegal Migration Act’s chilling clause states that any refusal would result in a child automatically being deemed to be an adult, but the Children’s Commissioner raises concerns about competence. A child under 18 is deemed not to have competence in order to understand what that refusal means. Do children under 18 have the right to truly independent support to guide them through the process? The Children’s Commissioner has noted that no child rights impact assessment was carried out on the implementation of using these biological methods for age assessments and this SI. Is that correct? If so, why are the Government moving forward on a matter that could well breach the UN Convention on the Rights of the Child?
Ministers referred frequently to international comparisons, in particular, practice in some European countries. It is important to compare the safeguards in the European Asylum Support Office’s formal guidance for member states, which was published in 2019, just before the UK left the EU, with those in these SIs, the Illegal Migration Act and the impact assessment on child rights that was presented to your Lordships’ House the night before we debated it on Report in July.
We need to use that CRIA from July as being the best possible evidence of what should be in a child’s right assessment. That assessment says that the Home Secretary determining that
“the science and analysis is sufficient to support providing for an automatic assumption of adulthood … would bring the UK closer to several European countries like Luxembourg and the Netherlands”.
However, the EASO guidance for Europe says this about the age assessment process:
“In applying benefit of the doubt, the applicant shall be considered to be below 18 years and, if unaccompanied, a guardian/representative shall be immediately appointed”.
It also states that the best interests of the child
“shall be observed from this point onwards until conclusive results point out that the applicant is an adult”.
It is evident from both the Bill’s Explanatory Notes and the CRIA from the then Illegal Migration Bill that this Government do not plan to follow either.
The CRIA says this on page 13:
“The Bill includes a regulation-making power to make an automatic assumption that a person is an adult if they refuse to undergo scientific methods of age assessment without good reason”.
How does that equate to the benefit of the doubt and the best interests of the child? It does not. By contrast, the EASO guidance says:
“The refusal to undergo the assessment should not imply an automatic consideration of age of majority”.
Frankly, the CRIA makes an absolutely unforgivable error in saying this:
“The age assessment clauses aim to … avoid the safeguarding issues which arise if an adult is wrongly accepted as a child and accommodated with younger children to whom they could present a risk”.
Under the Children Act, the responsibility for safeguarding rests always with the responsible body—in this case, the Home Office, the Department of Justice or a local authority carrying out an assessment—to ensure that all supposed minors are safeguarded at all times. If there are such worries, those whose age is doubted should be kept separately from clearly younger children. They should not be housed with adults either, which would deal with the issue that the Minister raised at the Dispatch Box earlier.
I look forward to hearing the Minister’s response to these issues: the points raised by the Home Office’s AESA committee and where the research that it demanded can be found, given that it tabled the SIs; the Children’s Commissioner’s concerns about the belief that the rights of children can be protected, especially in relation to competence and consent; and why, if this Government want to follow certain European countries, they are not following the safeguards for children that those countries have already put in place. If there are no clear answers, these two SIs are not yet ready to be put on to the statute book. Science and medicine, as well as the fundamental rights of children, are under threat. I urge the Government to withdraw the SIs until the deficiencies of evidence can be presented to Parliament. I beg to move.