My Lords, I am grateful to all noble Lords for their contributions to this debate. Amendment 34, tabled by the noble Baroness, Lady Lister, would mean that when a decision is made to remove someone to Rwanda under the Illegal Migration Act 2023, Section 57 of that Act would not apply if there was a decision on age.
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As I set out in Committee, it is important that the Government take decisive action to deter adults from claiming to be children and to avoid lengthy legal challenges to age assessment decisions preventing the removal of those who have been assessed to be adults. I have stated previously, and I agree, that assessing age is inherently difficult, but we must disincentivise adults from knowingly claiming to be children, which not only seeks to frustrate removals but causes wider resource and financial implications. It reduces both the availability and the accessibility of services for genuine children in need of them. I will return to these subjects in a second.
Accordingly, Section 57(2) of the 2023 Act disapplies the yet-to-be-commenced right of appeal for age assessments established in Section 54 of the Nationality and Borders Act 2022 for those who meet the four conditions in Section 2 of the 2023 Act. Instead, under Section 57(4) of the 2023 Act, those wishing to challenge a decision on age who meet the four conditions will be able to do so through judicial review, which will not suspend removal. This judicial review can continue from outside the UK after they have been removed. We will ensure that the appropriate support and facilities will be in place in the country of removal so that the individual can effectively participate in their judicial review from abroad.
The noble Baroness, Lady Lister, accused me of failing to engage with the statistics she quoted in Committee. The age dispute statistics that we have differ from the statistics obtained by organisations such as the Helen Bamber Foundation in its April 2023 report Disbelieved and Denied and the joint January 2024 report by the Refugee Council and the Helen Bamber Foundation, Forced Adulthood. We cannot engage because the Home Office is unable to confirm the statistics contained within these reports, which are derived from around 70 local authorities’ responses to FoI requests relating to individuals initially assessed as adults and referred for a further assessment. These statistics cannot be usefully compared with published Home Office figures, which cover all 211 local authorities and aggregate the outcomes of initial age decisions by the Home Office, comprehensive age assessments and any subsequent legal challenges. The Home Office is looking to improve the manner in which age assessment data can be disaggregated in national reporting systems and has included age assessment data requirements as part of planned improvements to internal systems.
Section 57(5) of the 2023 Act also provides the basis on which a court can consider a decision relating to a person’s age in judicial review proceedings for those who meet the four conditions in Section 2 of the 2023 Act. It provides that a court can grant relief only on the basis that it was wrong in law and must not on the basis that it was wrong as a matter of fact, distinguishing from the position of the Supreme Court in the judgment in R(A) v Croydon London Borough Council [2009] UKSC 8. The intention is to ensure that decisions on age are reserved for those qualified and trained to assess age.
The amendment would result in treating those who are to be removed to Rwanda differently from those removed to another country. The purpose of the Illegal Migration Act is to tackle illegal migration and create a scheme whereby anyone arriving illegally in the UK will be promptly removed to their home country or to a safe third country to have any asylum or human rights claim processed. All cohorts who are removed under the Illegal Migration Act should, therefore, be treated the same.
As I said, determining the age of a young person is a challenging task. The majority of individuals arriving illegally in the United Kingdom do not have valid documentary evidence of their age and some may misrepresent their age, whether intentionally or otherwise. Clear safeguarding issues arise if a child is inadvertently treated as an adult, and equally if an adult is wrongly accepted as a child and placed in accommodation with children to whom they could present a risk. Additionally, there are incentives for adults to claim to be under 18 years old as unaccompanied children generally receive a greater level of support than adults in several respects, including the accommodation they are provided with, the procedural and substantive treatment of their immigration claims, the arrangements that would need to be made to secure their possible removal, and the circumstances in which they can be held in immigration detention.
It is Home Office policy that an individual claiming to be a child will be treated as an adult without conducting further inquiries only if two Home Office members of staff independently determine that the individual’s physical appearance and demeanour very strongly suggest that they are significantly over 18 years of age. The lawfulness of this process was endorsed by the Supreme Court in the case of R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38. So we consider that these provisions are entirely necessary to safeguard genuine children and guard against those who seek to game the system by purporting to be adults. It therefore follows that I cannot support Amendment 34.
Amendment 35, tabled by the noble Baroness, Lady Brinton, seeks to prevent the relocation of unaccompanied children and former unaccompanied children from the UK to the Republic of Rwanda. The noble Baroness will be aware that Article 3 of the UK- Rwanda treaty makes specific reference to unaccompanied children not being included in the treaty, and that the UK Government will not seek to relocate unaccompanied children under the age of 18 to Rwanda. The amendment is therefore not necessary.
The Government recognise the particular vulnerability of unaccompanied children who enter the UK by unsafe and illegal routes. The duty to remove in the Illegal Migration Act does not require the Secretary of State to make removal arrangements for unaccompanied children until they turn 18, at which point they will become liable for removal as an adult, either to their home country if it is safe to do so or to a safe third country. Taking these measures will send a clear message that children cannot be exploited and cross the channel in small boats for the purpose of starting a new life in the UK.
I am happy to give the noble Baroness the assurance that I will resend the letter to all those who should have received it, but I note that she quoted from the letter and I need to expand on those quotes a little. She referred to AESAC, which
“acknowledges that there is no infallible method for either biological or social-worker-led age assessment that will provide”—
this is the key phrase—
“a perfect match to chronological age”.
It is
“key that methods used for age assessment have a known chance margin of error … that is to say classifying genuine children as adults or vice versa”.
AESAC has proposed an approach that increases accuracy in multiple ways. First, we know that—again, this is important—
“used in isolation, any one biological method of age assessment has a level of uncertainty in assessing chronological age. However, the AESAC report proposes a triage approach, with the methods to be combined dependent on the sex and claimed age of the person being assessed”.