My Lords, Amendments 124 and 125 are in my name and they have the support of the noble Baroness, Lady Neuberger, the noble Baroness, Lady Prashar, who cannot be here but wanted me to say that she strongly supports the amendments, and the right reverend Prelate. I also support other amendments to which I have added my name—indeed, all amendments in this group, including the propositions that Clauses 55 and 56 should not stand part of the Bill. My amendments are more limited and would simply remove the power through regulation to treat those claiming to be a child as an adult, should they refuse to consent to scientific age assessment, and instead stipulate that regulations must make it clear that refusal to consent to such an assessment should not be taken to damage credibility.
The Immigration Minister justified the introduction of these clauses by way of government amendment on the unevidenced grounds that
“a very large number of young adults do pose as children”
and that he did not want
“to see a situation in which young adults are regularly coming into the UK illegally, posing as children, and ending up in our schools, in foster-care families and in unaccompanied-minor hotels, living cheek by jowl with genuine children”.—[Official Report, Commons, 26/4/23; col. 777.]
The new provisions would, he concluded, help to “stamp out this evil”. Clearly, it was not such an evil that these provisions were included in the original Bill. Instead, they appear to be a response to an assertion in Committee from Ben Bradley MP, again unevidenced. Yet, as the JCHR points out, it is not clear why the Government are legislating again on the issue so soon after passing the Nationality and Borders Act, without first subjecting that to post-legislative scrutiny.
More detailed evidence published around the same time by the Helen Bamber Foundation and cited by the right reverend Prelate indicated that the Minister had “wildly”—its word—exaggerated the proportion of age-disputed children found to be adults; this was based on freedom of information requests. Just today, Full Fact reported that a claim made in Parliament by the Immigration Minister that up to a fifth of adult male asylum seekers pretend to be children on arrival was false. FoI data showed that, between January and November last year, the actual figure was 1%. Can the Minister explain the discrepancy please?
This all reinforces the evidence from a Refugee Council study last year, which found that only 14 out of 223 young people with whom it worked in 2021, whose age had initially been determined as “certainly adult” by the Home Office, were in fact found to be adult. The council expressed serious concern that the wrongful assessment of children as adults is causing long-term harm to children as well as significant safeguarding risks. More recently, some of the children it has helped, who are at risk of being sent to Rwanda because of wrongful assessment, spoke of their fear and shock.
A different form of evidence came last year from a highly critical report by the independent Chief Inspector of Borders and Immigration on the processing of small boat arrivals. It said:
“The treatment of those claiming to be children was not child-centred …The age assessment process was perfunctory and engagement with the young people was minimal”.
As the interim Age Estimation Science Advisory Committee pointed out, safeguarding issues do not arise only when adults pose as children. It said in a report:
“There is an equally important safeguarding issue when minors are incorrectly aged as adults and so inappropriately placed in adult facilities where they may be at risk”.
The implications of all this have become that much more serious in the context of Clauses 55 and 56 and of changes to age assessment—rejected by this House last year, to no avail. Our main focus last year was the introduction of scientific assessment and, in particular, the use of X-rays, in response to considerable concerns voiced by health bodies such as the British Dental
Association and the Royal College of Paediatrics and Child Health. The latter is particularly concerned about Clauses 55 and 56 in the current Bill, noting that
“The science on age assessment is not robust enough to accurately determine a person’s age, which could result in a child being incorrectly assessed as an adult”.
The interim advisory committee itself proposed a cautious approach given that:
“There is no method, biological or social worker-led, that can predict age with precision”.
It also advocated that
“Any methodology used for the assessment of age must respect and prioritise the dignity of the individual being assessed and should minimise physical or psychological harm”.
I would argue that these clauses do not respect and prioritise the dignity of the child, as they are based on the assumption that the child is lying.
Crucial here is the issue of consent, on which the committee’s recommendation was very clear, saying that the child
“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 committee’s advice underlined that
“in cases of refusal, the applicant should not be automatically considered an adult”,
and that:
“The consequences of refusal should not be so disproportionately adverse as to bias the applicant towards consent”.
It advised that
“it should be accepted that there may be many reasons”
for refusal to consent to biological assessment, which reflect different backgrounds. For example, the child may
“have witnessed or experienced trauma from their own homeland’s government institutions and may view all authority with suspicion and fear”.
Critical too is the question of capacity for consent. Can the Minister say how capacity will be determined and what will happen to children who lack the capacity to consent to the use of scientific methods? The British Association of Social Workers makes the point:
“The question of whether the asylum seeker can consent to the medical intervention is completely separate from the question of whether they are a child”.
Yet Clause 56, which gives the Home Secretary considerable discretion through regulations, in effect conflates the two. In doing so, it undermines the possibility of genuine consent and risks further trauma for children.
In response to the interim advisory committee’s report, the CEO of the Refugee Council said:
“These children simply want to start rebuilding their lives after the traumatic experiences they went through. They put their trust in us hoping they will get the support they need — it’s vital that they are safeguarded and provided the care that they need as they go through the system. The government must not ignore the committee’s findings”.
Can the Minister explain why the Government have ignored the very clear advice of their own advisory committee on the question of consent?
Do the Government at least accept the Constitution Committee’s recommendation that
“The power in clause 56(1) has such significant implications for an individual’s legal rights that it should be subject to the draft affirmative procedure”,
and the committee’s suggestion that “indicative draft regulations” should be made available during the Bill’s passage? In a similar vein, the JCHR recommends that guidance is issued
“as soon as possible setting out what would constitute reasonable grounds for refusing consent”.
Can we expect to see this before Report?
The Constitution Committee also warned that Clause 55 raises serious legal and constitutional issues. Others are better placed to pursue these, but as Justice, among others, points out, it “drastically reduces the accountability” of the Home Secretary for complex decisions about age and permits a child’s
“deportation when they are still pursuing a legal claim that they are a child”—
the normal right of appeal having been abolished.
The supplementary ECHR memo states that the Government
“concluded that it is important to make this change to prevent individuals frustrating the aims of the Bill”.
Could the Minister explain how this mean-minded conclusion can justify the limitations on a child’s rights? As the JCHR points out, this is clearly not in any child’s best interests and is not, in its view, reasonable given the
“far-reaching consequences for their treatment, their lives and their rights”.
What is the Government’s response to the clear recommendation of the UN Committee on the Rights of the Child that age-disputed children should not be removed to a third country? What steps will be taken to ensure that, in the words of the memo,
“The appropriate support and facilities”
are
“in place in the country of removal to ensure that the individual can effectively participate in their judicial review from abroad”?
Even with Zoom et cetera, it is difficult to see how a child can participate effectively from afar.
In conclusion, I simply quote the Children’s Commissioner, who has said in no uncertain terms that it is unacceptable to treat a child as an adult on the basis of their refusal to consent to scientific methods. She asks how genuine consent is possible, free from duress, given the implications of not consenting. She concludes:
“Where a child’s age is disputed … those awaiting resolution should be treated as vulnerable children first and foremost”.
Instead, as elsewhere in this Bill, it is a case of migrant first, not child first and certainly not child foremost.
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