Clause 58 - Age assessments

Nationality and Borders Bill – in a Public Bill Committee at 2:15 pm on 2 November 2021.

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Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central 2:15, 2 November 2021

I beg to move amendment 150, in clause 58, page 52, line 19, at end insert—

“(3A) Before making regulations under this section, the Secretary of State must consult the ethical committees of the relevant medical, dental and scientific professional bodies and publish a report on the consultation.”

This amendment would require the Secretary of State to consult with ethical committees of medical, dental and scientific professions before making regulations in their area, and publish a report on the consultation.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to consider the following:

Clause stand part.

Government amendment 168.

Government new clause 29—Interpretation of Part etc.

Government new clause 30—Persons subject to immigration control: referral or assessment by local authority etc.

Government new clause 31—Persons subject to immigration control: assessment for immigration purposes.

Government new clause 32—Use of scientific methods in age assessments.

Government new clause 33—Regulations about age assessments.

Government new clause 34—Appeals relating to age assessments.

Government new clause 35—Appeals relating to age assessments: supplementary.

Government new clause 36—New information following age assessment or appeal.

Government new clause 37—Legal aid for appeals.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I understand that the Government seek to delete clause 58 and replace it with new clauses 29 to 37, which provide more detail. However, the detail does not offer any reassurance; quite the contrary.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

Does the hon. Gentleman accept that new clause 32 makes amendment 150 superfluous, as it talks about the scientific input into age determination?

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I thank the right hon. Gentleman for his intervention, but he is completely wrong and I will explain why shortly.

In existing clause 58 and the new Government clauses, the Government want to introduce new regulations and a standard of proof for age assessments, to compel local authorities to assess age, to allow the use of “scientific methods” to assess age, despite widespread concerns from professional bodies about the validity or accuracy of any such methods, and to penalise children for not consenting to these potentially harmful interventions.

Children who come to the UK on their own, from countries such as Afghanistan, Sudan and Eritrea, face a unique problem when asked to prove their date of birth. The registration of births and the importance placed on chronological age differs across the world, and many are genuinely unable to show official identity documents, such as passports or birth certificates, because they have never had them in the first place, they have had them taken away from them, they have lost them in the chaos of fleeing, or sometimes they have had to destroy them en route.

Disputes over age can also arise from a lack of understanding of the way in which dates are calculated in other countries and cultures, and associated confusion over what is being said by a child about his or her age. So, one might reasonably ask, why are the Government making so much of this issue?

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

Does the hon. Gentleman not agree that there are incentives for adults to pass themselves off as children? If the age assessment is done incorrectly, the result could be adults being placed in schools or local authority care, putting children at risk.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

He can have another go if he wants.

I hear what the right hon. Member for Scarborough and Whitby is saying. I remember watching a BBC programme recently—I think it was on the BBC—on the Kindertransport. The same debate was had about Jewish refugees fleeing Nazi Germany after Kristallnacht. Some were slightly older than the age restriction of the time. I do not know whether the right hon. Gentleman thinks that this legislation would have been appropriate at that time. We could have turned them around and sent them back to the Nazis.

Paragraph 24 of the explanatory notes states:

“Since 2015, the UK has received, on average, more than 3,000 unaccompanied asylum-seeking children per year. Where age was disputed and resolved from 2016-2020, 54% were found to be adults”.

Clearly, 54% is a big number, but the data in the notes is more than a little selective.

According to Home Office statistics, for the most recent normal year unaffected by the pandemic, which was 2019, there were 4,005 unaccompanied children applications. Of those, 748 had their age disputed and 304 were found to be adults. That is just over 7% of child applicants. The problem is that that is in no way as prolific as purported by the explanatory notes. The actual number is likely to be lower, because the Home Office stats do not include decisions later overturned following advocacy or reviews by judges.

Again, the Government have a problem finding evidence to justify a proposal in the Bill. This is clearly not the first time this has happened. I see that the Home Secretary got herself into trouble with the Lords Justice and Home Affairs Committee today by being unable to come up with the facts to justify one of her wilder allegations about those crossing the channel. Nevertheless, the Government are ploughing ahead with their plans to use scientific methods to assess age.

I now turn specifically to new clause 32, which does not offer any of the clarity that the right hon. Member for Scarborough and Whitby suggested. Proposed new subsection (2) mentions the

“types of scientific method that may be specified”,

and that the two specified might be included. However, proposed new subsection (9) goes out of its way to state:

“This section does not prevent the use of a scientific method that is not a specified scientific method for the purposes of an age assessment under” the previous proposed new section,

“if the decision-maker considers it appropriate to do so”.

New clause 32 is therefore saying: “Any scientific method that we can come up with at any time in the future will be legitimate.”

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

I understand the point that the hon. Gentleman is trying to make, but I am worried that he is saying, “Well, we’ll give a lot of people the benefit of the doubt”, which could result in large numbers of adults being placed in settings that are appropriate for children. Surely he is aware that since the 2003 case, age assessments have been Merton compliant. Any actions that the Government take to follow through on the Bill becoming law will obviously be tested in the courts in the same way as the early years situation.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I refer the right hon. Gentleman to what my amendment 150 proposes. All it asks is that the Government should be required to take into account relevant scientific and medical evidence, consulting reports of the ethical committees of the appropriate medical and dental professions, on the Government’s planned use of scientific methods for assessing age.

What do the experts think? The British Dental Association called dental X-rays for age assessments “inaccurate and unethical”, which is a theme that relates to the rest of the Bill—it will not do what it says it will do. The Government apparently told some journalists that they do not plan to use dental X-rays anyway, but the Bill leaves that option open, so forgive us if we do not take casual briefings to journalists on the side as a way to determine the Government’s future conduct on this issue.

The Government are apparently planning to use wrist X-rays, which the British Medical Association tells us it has “serious concerns” about because

“they would involve direct harms without any medical benefit to the individual”,

as radiation exposure over a lifetime should be kept as minimal as possible. The BDA agrees:

“The process of radiography is a medical procedure that should be carried out only for medical purposes, and where the patient stands to benefit. Exposing children to radiation when there is no medical benefit is simply wrong.”

The BMA also warns that

“the evidence supporting the accuracy of the process is extremely weak”.

We are back to the same old theme: there is no real evidence to support what the Government are doing. The BMA goes on to say that the process is particularly weak where,

“as in the case of most asylum seekers, there is a shortage of appropriate age and cultural comparators.”

Yet again, Ministers are introducing ineffective proposals without any evidence, making those seeking asylum—in this case, children—part of the narrative of “Let’s assume bad faith, and let’s assume that everybody is trying to play the system.” It will not work, but it is designed to grab headlines and to make it seem as though the Government are talking tough, rather than dealing with the genuine issues on which we agree, such as stopping those who are forced out of desperation to make journeys across the channel. I urge the Minister to accept our amendment or, better still, to just withdraw the clause.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

The Public Gallery is becoming a little crowded. I encourage everyone sitting there to spread out as much as possible, to ensure social distancing.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I would like to speak to clause stand part, and I support everything that the hon. Member for Sheffield Central has already said. We all recognise how important it is to get age assessments right, while acknowledging that it will always be an imperfect process. As he said, what precisely is the nature and scale of the problem that the Government are driving at here? Of course, it is important to ensure as far as possible that adults are not placed in child settings, but the overall tenor of the evidence that we have received is that placing children in adult settings is an even greater risk. If a young adult is placed in a setting designed for older children, there will at least be child-specific safeguarding and other age-appropriate support. If a child is wrongly placed in adult reception and immigration processes, there are no such protections, and such a decision can have profound impacts on and consequences for a child.

First and foremost, we should continue to think about age assessments as a function of the child protection and safeguarding system, not of the immigration system. The responsibility should remain with social workers, whose expertise and experience make them by far the best people to undertake such assessments where support is required. We should preserve the current position, which does not place an evidential burden on a child or young adult but leaves the decision makers to weigh up all the evidence to a reasonable degree of likelihood. The Home Office has quite simply offered no sound reasons for undermining that arrangement and for imposing a higher standard of proof.

New clause 29 and other new clauses almost certainly mean that age assessments will be routine. The Secretary of State is basically helping herself to powers to demand tests whenever she wishes, even where social workers think they are entirely inappropriate. The idea of a national age assessment board could be helpful. As we have seen from both oral and written evidence to the Committee, sharing resources and best practice could bring benefits, but what is proposed by the Government in the new clauses goes way beyond that. We need to know who is going to be on the board, how it will work and how its independence will be secured, particularly given the vast, wide-ranging regulation-making powers that the Secretary of State is helping herself to. The role of any such board should be to support local authorities, not to supplant and overrule them. Unfortunately, the Government’s provisions go far too far, and they need their wings well and truly clipped if we are to support them.

New clause 29 seems incredibly lazily drafted in how it refers to relevant children’s legislation. In Wales, Scotland and Northern Ireland we have to work out whether a piece of statute corresponds to part III, IV or V of the Children Act 1989. It is pretty sloppy drafting. It also serves notice that this is a devolved area. Important questions for the Minister are: what consultation has there been with devolved Governments, and is a legislative consent motion to be sought on these issues?

There has to be recognition that, for many reasons, the process of age assessment can be, and will remain, a very difficult task. We know that children develop into adults at different speeds. The experience of an asylum-seeking child can affect their appearance and demeanour. As the hon. Member for Sheffield Central eloquently put it, the demeanour of a young person who has travelled across continents and survived in some incredibly difficult circumstances may no longer be that of a child, despite them being a child. Completely different physical and nutritional regimes in the country of origin will also cause differences. That is why raising the standard of proof is not appropriate.

These difficulties are not going to be overcome by the use of so-called scientific methods of assessment—methods which are absolutely no more scientific than assessment by expert social workers. Indeed, many would suggest that these methods are a lot less helpful. Much evidence has been submitted to the Committee about the lack of effect of these new methods and their unethical nature, as the hon. Member for Sheffield Central referred to. The British Dental Association is clear that dental tests cannot produce accurate assessments and that taking radiographs is inappropriate where there are no health benefits for the individual undergoing the test. The BDA has submitted detailed evidence on that.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby 2:30, 2 November 2021

I have just had a look at the NHS website and it says that having an X-ray is equivalent to one or two days of background radiation. If someone takes a short-haul flight, the amount of radiation they are likely to be exposed to is probably more than an X-ray, particularly if it is on a limb and not on the main body.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I do not have access to that webpage, but the right hon. Gentleman has access to the extensive evidence submitted to the Committee by the BDA. It is a two-sided issue. First, it is not appropriate to subject people to radiation, and in this case there is no informed consent. The evidence is clear. The Royal College of Paediatrics and Child Health is clear that an assessment can be no more accurate than two years either side. The British Society for Paediatric Endocrinology and Diabetes is clear that we cannot assess a child’s age just physically or by analysing bones.

In short, if a decision maker says that somebody is 18 years old, the person is just as likely to be 16 or 20. These new clauses leave the Secretary of State with powers that are far too broad. She should at least be required to have consent and approval from professional bodies, whether medical, dental or scientific. The insistence that so-called scientific methods can be used anyway if the decision maker considers it appropriate—as enabled by new clause 32(9)—totally undermines the other safeguards. It must be removed.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

The hon. Member is very generous in giving way. Is he saying, in effect, that in every case we should take the person’s word for how old they are and treat them as children, even if there is scientific evidence that they may be many years older than 18?

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

No, I am not saying that. What I am advocating is the position at present—that the decision maker looks at all the evidence that is available in the round. If somebody is 50, I cannot imagine them needing an invasive scientific procedure to establish that they are over 18. I am not by any stretch of the imagination saying that we just take somebody’s word for it. I am advocating for the status quo. By all means the Government can introduce some sort of advisory board, but that should not supplant and take over the functions of local authorities—but that, unfortunately, is how I see these new clauses working.

The new clauses suggest that there will be implications for a person’s credibility if they choose not to undergo the medical procedures. I object, as a point of principle, to Parliament telling decision makers what to think about someone’s credibility when it is those decision makers—not us—who know the circumstances of the decision that they have to make. It is particularly objectionable given that professional medical bodies thoroughly object to these so-called scientific procedures. Despite the fact that professional bodies have said that these tests are inappropriate, the Government are telling decision makers that, if a young person says, “Well, the medical professionals say this is inappropriate, so I won’t undergo this,” they must find that young person lacking in credibility.

I repeat the point I made in relation to earlier clauses about the impugning of the credibility of those making statements on someone’s behalf. It is especially bizarre that a medical report by a multi-disciplinary panel of experts could have its credibility maligned simple because a child or young adult refuses to undergo one of these so-called scientific methods of testing introduced through regulations by the Secretary of State. Not only is it bizarre; it also undermines the fundamental idea that people should be able to give free consent to medical procedures and examinations, and not be pressured into them. Similarly, it undermines the principle that such a procedure should happen only if it delivers a scientific benefit for that person.

What consultation has there been? We have not been able properly to scrutinise or ask questions of relevant witnesses in relation to these specific provisions. Is consent to be sought from devolved Governments on the basis that large tracts of these new clauses relate to how local authorities should exercise functions related to devolved legislation? In the absence of assurances on any of those fronts—the evidence of problems, proper consultation and devolved consent—the case for change is absolutely not made. On the contrary, there are all sorts of dangers in these clauses that could have serious consequences for children.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

I will be brief, as I have just a couple of questions. Ethics aside, as is the want of this Government—if that is not the case, why are they running away from the amendment tabled by the hon. Member for Sheffield Central?—I want to look at the issue of estimating the maturity of a child’s skeletal system by comparing images with databases of children of the same age and gender. Do children in Ethiopia develop at a comparable rate to children in the UK, because I understand that that is who they are going to be compared to? Do children in Eritrea and Sudan develop at the same rate? The British Medical Association seems pretty certain that they do not. If that is the case, how long will it take to build databases of comparable images for each country or region, and has that work started?

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

The Government have tabled new clauses 29 to 37 to replace clause 58, which was a placeholder clause on age assessments. Colleagues have already made the point about lack of scrutiny. Having received these new clauses so late in the day, we have not had a chance to see proper evidence, because we were not aware of what has been said. Clearly, as part of its role a Committee must have time to scrutinise. I am sure we will do the best we can with the time we have been given, but it really is not best form to have so many Government new clauses so late in the day on such an important issue.

We are concerned that the age assessments referred to in new clauses 29 to 37 risk violating children’s rights. I thank the Refugee and Migrant Children’s Consortium, a coalition of over 60 organisations, for its excellent briefing on these new clauses and for sharing its concerns about their inclusion in the Bill. If implemented, the new regulations and measures on age assessments will significantly increase the risk that children in the system will be treated as adults and criminalised. Before we discuss specific measures, it is worth noting that age assessments are not straightforward, nor are they an exact science. The measures in this Bill fail to recognise that it is impossible to determine age precisely, especially when there is an absence of documentation, which is often the case. By introducing a higher standard of proof in age assessments, more children in the system will be wrongly treated as adults, with devastating consequences.

For unaccompanied children in the asylum system, age is fundamental to receiving the support and protection they need. In the UK, age determines how or whether someone is supported by children’s services and has access to education; whether they are provided with asylum support by the Home Office and dispersed to a different part of the UK; and whether they are accommodated or detained with adults. It is imperative that we get age assessment right, and we all agree that there are clear safeguarding issues when people claiming to be children are later found to be adults, but it is also true that the effects of children being wrongly treated as adults are significant. I therefore urge colleagues to consider those safeguarding risks in relation to new clauses 29 to 37.

New clause 29 defines various terms, including “age-disputed person”, which governs the persons to whom the provision on age assessments will apply. As it stands, new clause 29 will mean that age assessment is required whenever there is insufficient evidence to be sure of age. Of course, as we know, this is true in many if not all cases. In practice, this clause therefore puts the burden of proof on a child to prove that they are under 18.

This is problematic for a couple of reasons. Children who come to the UK on their own from countries such as Afghanistan face challenges when asked to prove their date of birth. First, the registration of births and the importance placed on chronological age differs across the world. Secondly, and perhaps more significantly, there is often a lack of documentation. For example, many children who come to the UK have never had official identity documents in the first place, or have had documents taken from them or destroyed during their journey to the UK.

It is worth sharing an example, and I thank the Refugee and Migrant Children’s Consortium for bringing it to the Committee’s attention, as it highlights both the challenges in determining age accurately and the impact of wrong decisions. This case refers to a young person named K, who arrived in the UK from Iran and was held in a police station. He was 16 years old when he left Iran, and he told the staff at the police station his date of birth. They explained that, based on the date of birth, he was now 17.

K was then questioned by someone—he believes they were from social services—who did not believe he was 17, as they believed he looked older. Before entering the UK, K had been living in the jungle in Calais, and had not properly washed for a long time and had grown a beard. K was pressured into accepting he was 18 years old, and the Home Office recorded his age as 18. This meant he was not referred to a local authority for a full age assessment and was dispersed into adult asylum support accommodation in a hotel. He was the only child in the hotel and was left very scared. He reported that adults in the accommodation were taking drugs and he could not eat during his time there.

K managed to get in contact with the British Red Cross, and a safeguarding referral was made to the relevant local authority. The local authority promptly arranged to visit the young person, and two social workers agreed that it was highly likely that K was the age he was claiming to be. K was immediately moved and provided with full support under section 20 of the Children Act 1989. The local authority completed a full needs assessment and quickly took action to refer him to a GP, dentist, optician and immigration solicitor, and supported him to enrol in college. He had been suffering from asthma, and had not received any medical support since he arrived in the UK.

K’s case highlights what can happen when a young person is wrongly considered an adult in the asylum system, and the effects are stark. They lose access to the support and protection they need. That is why we must be incredibly careful to develop appropriate and fair age assessments, and also ensure that they are a function of the child protection and safeguarding system more widely.

In relation to K’s case, I have mentioned the fact that children are in hotels, and there is a real question about what safeguarding goes on in hotels. I know the Minister is deputising today, but could he look into that for me and to write back to me, or ask officials to do so at some stage, about what safeguarding for children does go on in hotels?

In new clause 30, the Home Office will be given the power to make regulations on how to assess age and introduce a standard of proof on the balance of probabilities for age assessments. The current standard when age is disputed in the context of an asylum appeal, developed through years of case law, is that of a reasonable degree of likelihood. Given the complicated nature of assessing age, introducing such a high standard of proof would significantly increase the risk of children being wrongly treated as adults. Indeed, new clause 30 undermines current statutory guidance from the Department for Education, which makes it clear that age assessments

“should not be a routine part of a local authority’s assessment of unaccompanied or trafficked children”.

The Government’s proposals will give the Home Office powers to compel local authorities to assess the age of a child, as they must provide the Home Office with evidence for why they believe that the child is the age they claim to be. That will put pressure on local authorities, which have already expressed frustration over having to conduct age assessments when Home Office caseworkers challenge their view that they see no reason to doubt a young person’s age. Introducing those changes in new clause 30 will likely undermine the specialist knowledge and experience of those who work in the asylum system, while putting increased pressure from the Home Office on the already stretched resources of local authorities.

New clauses 30 and 31 outline the powers and procedures of the national age assessment board. There are concerns from the sector, in particular the British Association of Social Workers, about the lack of a multi-agency, holistic approach. Indeed, the NAAB as introduced by the Bill will have significant powers, with minimal accountability or transparency. In practice, it will be able to override professional judgment developed over years of experience, including a local authority age assessment, as the NAAB will be able to carry out an assessment if required to by the Secretary of State or a designated person on their behalf.

It is appropriate that age assessments draw on, and consult, a wide range of practitioners in health, care, education and the community, especially as we turn to new clause 32, which controversially provides for the use of scientific methods for age assessment. It includes methods such as examining or measuring parts of a person’s body by using imaging technology and analysis of saliva, cell or other samples from a person’s body. It is a deeply worrying provision. I note that the new clause is not exhaustive. Could the Minister provide more details on age assessments under it?

It is worth re-emphasising, as many organisations in the sector have, such as the United Nations High Commissioner for Refugees, that medical age assessment methods are highly contested and subject to a high margin of error. The evidential value of scientific age assessment methods is uncertain. Scientific methods, for example, remain contested by UK courts and by medical professionals and associations. The evidence supporting the accuracy of the processes is extremely weak, particularly where, as in the case of most asylum seekers, there is a shortage of appropriate age and cultural comparisons. Indeed, the Royal College of Paediatrics and Child Health has stated that the use of radiological assessment is extremely imprecise and can give only an estimate of within two years in either direction.

While potentially being inaccurate, scientific methods such as those listed in the Government’s proposals are also harmful to the individuals who are assessed. It is telling, and very concerning, that the British Dental Association notes at the very end of its written evidence that

“dentists could find themselves performing an act that is not just inappropriate and unethical, but even constitutes criminal battery.”

The British Medical Association, too, has serious ethical concerns about the proposed use of imaging technology. The use of radiation for that purpose is harmful for the individual, without any medical benefit. Invasive procedures will likely be traumatic for the individual, and will almost certainly adversely affect vulnerable children and young people, causing anxiety, confusion and frustration. That will actively harm the most vulnerable of asylum seekers and potentially retraumatise them. For those reasons, the Home Office ruled out using dental X-rays, as the BDA found that they would be “inaccurate, inappropriate and unethical” if implemented in asylum cases.

Furthermore, the fine print of new clause 32 includes subsection (9), which appears to create another category of potential scientific methods that can be used—methods that have not been specified in regulations and have not been approved by relevant professional bodies. The subsection states:

“This section does not prevent the use of a scientific method that is not a specified scientific method for the purposes of an age assessment…if the decision-maker considers it appropriate to do so and, where necessary, the appropriate consent is given.”

That has potentially very worrying implications, and the Government should clarify why the subsection has been included and whether the methods, which are not specified in regulations, include those that the Government were advised against when seeking scientific advice. It is critical that any method used to make age assessments has a strong scientific and evidentiary base.

Another worrying aspect of the new clause is around consent and damage to credibility. Subsection (7) states that decision makers must take it

“as damaging the age disputed person’s credibility” if they do not consent to the use of the specified scientific method. A child could object to the use of an invasive method that is not a specified scientific method, which is deeply troubling. That is also included in new clause 33, which allows the Secretary of State to make regulations about age assessments, including damage to a person’s credibility, due to lack of co-operation. Refusing to be subjected to an invasive measure, including those that the BMA says are potentially harmful to individuals, should not have a bearing on a person’s credibility.

As referred to throughout Bill Committee proceedings, people who come to the UK have often endured significant challenges in their journeys, including trauma and physical, mental and sexual abuse. Further subjecting these vulnerable people, such as unaccompanied people and young people, to invasive measures is deeply concerning, especially when the outcomes will remain inaccurate. By legislating to ensure that decision makers take it as damaging a person’s credibility if they refuse to consent to these methods, the Government will penalise children for not consenting to potentially harmful “scientific methods”. In practice, this measure will force children and young people to undergo assessments that may be harmful to them.

The Government’s proposals fail to take into consideration issues of consent and the competency of children in decision making. For example, children affected by trauma may have had their capacity to make decisions undermined. More widely, it is crucial that we do not view the use of scientific methods as a silver bullet for age assessments, especially given the widespread concern about their accuracy and the harm they will potentially inflict on vulnerable children and young people.

New clauses 34 to 37 provide additional measures around the right of appeal, situations when new information comes to light after an age assessment or appeal, and access to legal aid. We of course welcome measures to provide access to justice provisions. In the interests of time, I will focus on the more controversial aspects of the Government’s new clauses on age assessments. I think we all agree that wrongly treating a young asylum seeker as an adult puts an already vulnerable person at immense risk, effectively depriving them of all the support, supervision, awareness and monitoring that ought to be provided. The Government’s proposals on age assessments are therefore concerning as they will increase the number of children and young people who enter the adult asylum system in incredibly vulnerable circumstances, with fewer rights and entitlements than they deserve.

The Government’s new clauses appear to suggest that there is a simple process to determine age accurately. This is worrying. We must avoid viewing age assessments in asylum cases in this way. We need to get age assessments right. That will involve taking a broader approach than the Government have laid out in new clauses 29 to 37. The new clauses on age assessments risk vulnerable children and young people being denied rights they deserve, protection they need and support we must offer. We oppose the measures set out in the new clauses, and we oppose clause 58 standing part of the Bill.

Photo of Jonathan Gullis Jonathan Gullis Conservative, Stoke-on-Trent North 2:45, 2 November 2021

It will probably not shock Committee members that I support what the Government are doing on age assessments. Ultimately, it is about ensuring that we protect our young people in our United Kingdom. When people say that they are children and will be in a classroom surrounded by people of a similar age, we need to make sure that they are indeed children.

As a former teacher, I understand the importance of this. As a former head of year who had responsibility for safeguarding, covering welfare, attendance and the behaviour of young people, it makes no sense to me why anyone would oppose a measure to make sure that people who claim to be young people are indeed young people. An individual who has nothing to hide should have nothing to fear in this regard. It is absolutely essential that age assessments take place to make sure that people claiming to be of school age are indeed of that ilk, because ultimately other young people could be put in a very vulnerable situation.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

We want age assessments to be as accurate as they can be at the moment, not just through the work of social work groups but with input from outside. Does the hon. Gentleman have any concerns about the impact on children who end up being wrongly placed in adult facilities?

Photo of Jonathan Gullis Jonathan Gullis Conservative, Stoke-on-Trent North

Of course—absolutely. Young people should not be placed in a situation like that, for safety reasons. As a former teacher, I would not want a 14 or 15-year-old to be somewhere they felt unsafe. The problem is that we have a broken asylum system that needs fixing. Age assessments can be avoided if people do not try to enter the country illegally, but come by safe and legal routes, where we can have documentation.

There are other ways to prove someone’s identity, age and application, as we have done in Afghanistan and Syria, which will ultimately be a much better system than having illegal economic migrants crossing the English channel from Calais and entering this country illegally. They are putting a huge strain on the public services of our country and on the people of Stoke-on-Trent North, Kidsgrove and Talke, whose area is the fifth largest contributor to the asylum dispersal scheme.

Age assessment is absolutely essential. It is another way of reminding people that if they make an illegal entry into this country they will face a number of procedures to verify the credibility of their asylum claim, their identity and their age, in order to ensure we protect our country’s young and vulnerable people. It is the right and proper thing to, and I fully applaud the Minister on pushing this essential clause.

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

Let me start with amendment 150. I would say to the hon. Member for Sheffield Central that his amendment applies to all aspects of age assessments, not only the use of scientific measures. As such, it is extremely broad, although I do not know if that remains his intention.

The Home Office takes its statutory duties towards the welfare of children very seriously. The current age assessment system is desperately in need of reform. We have heard many reports from local authorities about the prevalence of adults posing as children and claiming services designed for children, including accommodation, education and social care. This poses significant risks to the welfare of genuine children in our care system and undermines the integrity of the immigration system. Equally, we need to safeguard vulnerable children from being placed in adult services, although I am not sure I agree with the hon. Member for Sheffield Central when he said that this is headline grabbing.

We must do everything in our power—whatever that is—to safeguard children, including vulnerable and unaccompanied asylum-seeking children.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

The Government were less enthusiastic about protecting children under part 4 of the Bill.

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

I do not think that deserves a response because I do not believe any Member of the House, wherever he or she sits, would advocate that we leave children vulnerable in the system.

One measure we look to pursue is the use of scientific methods, as has been said. Assessing someone’s age is an incredibly difficult task. It is only right that in this complex and sensitive area we seek to improve and expand the evidence base on which decisions can be made. We are aware there are ethical concerns around the use of certain scientific methods for age assessment, which is why new clause 32 includes a number of changes to the Bill to ensure proper safeguards are in place for those who are asked to undergo a scientific age assessment.

First, the Secretary of State may only specify a scientific method of age assessment in regulations once she has sought scientific advice and determined that the method in question is appropriate for assessing a person’s age. I expect that scientific advice to also cover related ethical considerations. Secondly, a scientific method of age assessment will not be performed unless the appropriate consent is given by or on behalf of the individual on whom the method is to be performed. We will be as transparent as possible about the nature and consequences of the specified method where consent is required once an appropriate method has been identified. Thirdly, where a person has reasonable grounds for refusing to undergo a scientific age assessment, they will not be required to undertake one. That decision will not then count against them.

Existing regulatory frameworks already govern the safe and ethical application of various technologies and they could be employed to assess age. The use of ionising radiation, for instance, is highly regulated by the Justification of Practices Involving Ionising Radiation Regulations 2004, which require a demonstration that the individual or societal benefits of their use outweigh any health detriments. I can assure hon. Members that the Government will comply with all relevant regulatory frameworks in relation to the scientific methods chosen.

An important point to reflect on is that the use of scientific methods for age assessment is not new. They are already widely in use in most countries throughout Europe, including Denmark, Norway and Sweden. The UK, therefore, should draw on the latest technological advances to improve the process for determining age, as that is a positive step towards ensuring that we are doing all that we can to safeguard those vulnerable children.

Reflecting on the safeguards in the Bill and the pre-existing processes to ensure safe and ethical applications for the various technologies—before I finish, I will give way.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs) 3:00, 2 November 2021

The Minister is outlining what he sees as safeguards. I am unconvinced. New clause 32(9) seems to say that nothing prevents the use of a scientific method, even if it is not specified in regulations and so on, if the decision maker considers it appropriate and, where necessary, consent is given. Given that there are implications if consent is not provided, that surely rides roughshod over all the other protections that the Minister just outlined.

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

I will come on to that when I discuss further measures in new clause 32, but our opinion is that the amendment is not necessary and I ask the hon. Member for Sheffield Central to withdraw it. On the new clauses, clause 58 is one of the six clauses drafted as placeholder clauses of introduction, as indicated in the explanatory notes and memorandum for the Delegated Powers and Regulatory Reform Committee. It was drafted as such in the interests of transparency to make clear our intention to bring forward substantive provision on age assessment. New clauses 29 to 37 are intended to replace clause 58 entirely.

Before I touch on the other clauses, regarding new clause 32, we have already said that determining a young person’s age is an inherently difficult task. One of the questions posed earlier was how we do that as a comparator between other young people growing up in less well-developed countries. Under current arrangements where an individual’s age is disputed, local authorities must already undertake an age assessment. That typically involves two appropriately qualified social workers undertaking a series of interviews with the young person and taking into account any other information that is relevant to their age. However, even where those assessments are conducted thoroughly and reach reasoned conclusions, they are fraught with difficulty, as one would imagine. Such assessments can have a wide margin of error. We are aware of cases where a Merton-compliant age assessment, as they are called, has been conducted on the same individual by different social workers and has come to very different conclusions about the person’s age. Given that context, the use of scientific age assessments represents an additional and important source of evidence to help decision makers in a difficult task, allowing them to better come to accurate judgments. At the end of the day, that is our aim.

Various scientific methods of age assessment are already in use across most European countries, and have been for several years. In Finland and Norway, which I mentioned earlier, radiographs are taken to examine development of the teeth and the fusion of bones in the wrist. Two certified experts perform the age assessment and must jointly agree on the person’s age. In France, X-rays are taken to examine the fusion of the collarbone, alongside dental and wrist X-rays. In Greece, dental X-rays are used alongside social worker assessments.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

What are the experts comparing with? My question is, will they be comparing the bone density or whatever with that of children of the same age in the UK, knowing that the development of children from other parts of the world is very different, or will they have a database of comparable images of the skeletal system—whichever part they are using—from each of the other countries? Is that something that is happening at the moment, or will they just be compared with UK-based children?

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

I suspect that the answer to the hon. Lady’s question is that how that is assessed will be down to the individual scientific advice given on the individual case at the time. I cannot see a like-for-like comparator for a child from Ethiopia or Sudan, which was mentioned earlier, being a child in this country. That is why the scientific evidence is a much more accurate way of assessing. It can be a great tool in the arsenal of assessing a child when compared with our existing system, which is the Merton assessment by two individual social workers. Given the challenges of assessing an individual’s age, we see no good reason why such technologies should not also be used. In all good faith, this is one of several tools in the arsenal. To further enhance my answer to the question asked by the hon. Lady, the precise scientific method of assessment will be specified in regulation, following scientific advice.

We are also making it clear within new clause 32 that a decision maker will be able to draw a negative credibility inference if an individual refuses to undergo a scientific age assessment without reasonable grounds. The introduction of any scientific method would be entirely undermined if someone who was asked to undergo such an assessment could simply refuse to co-operate. By legislating to develop our own scientific age assessment capability, we hope to emulate best practice across Europe and to ensure that unaccompanied asylum-seeking children are provided with the care they are entitled to in a safe environment.

Let me turn to the rest of the amendments in the group before I answer some of the questions. Amendment 168 is consequential on new clauses 32 and 33. It provides that the regulation-making powers in the clauses are commenced automatically two months after Royal Assent.

The purpose of new clause 29 is to define an “age-disputed person” and to set the parameters to whom the age-assessment clauses apply. It clarifies the meaning of a number of terms, including “age-disputed person”, “immigration functions”, “immigration officer” and the respective definitions of “local authority” in England, Wales, Scotland and Northern Ireland. The clause also defines the meaning of “relevant children’s legislation” across the four nations of the United Kingdom.

New clause 30 relates to the establishment of a decision-making function in the Home Office, referred to as the national age assessment board, or the NAAB, as I think the hon. Member for Enfield, Southgate referred to it. The NAAB will have responsibility for conducting age assessments of age-disputed persons on referral from the local authority or another public authority specified in regulation. Where an age-disputed person is referred to the NAAB by a local authority, the NAAB assessment will be binding on both the Home Office, in relation to immigration functions, and the local authority when determining access to children’s services. Alongside new clause 30, new clause 31 relates to the establishment of the NAAB. While most NAAB age assessments will be conducted on referral from a local authority, the new clause stipulates that the NAAB may, in certain situations, conduct age assessments on age-disputed persons for the sole purpose of deciding whether or how the Secretary of State should exercise any immigration functions.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Will the Minister say a little bit more about the NAAB? Who will be appointed to it, how will it generally undertake assessments and how will its independence from the Home Office be ensured?

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

I assure the hon. Gentleman that I will answer him before I finish answering the other questions, if indeed I can find the answer in my book.

I have covered new clause 32 quite extensively. New clause 33 provides the Secretary of State with the power to make regulations about the way in which age assessments are to be conducted under the provisions in new clauses 30 and 31. It will provide the Secretary of State with the power to provide more clarity on what a comprehensive age assessment should entail, including, where appropriate, existing elements of age assessment case law. It will be mandatory for local authorities and the Secretary of State to follow these requirements when conducting age assessments. New clause 34 provides for a right of appeal to the first-tier tribunal for an age-disputed person who has been subject to age assessment. In considering an appeal, the tribunal will be able to consider any evidence it deems relevant. It will determine the age of the age-disputed individual and assign them a date of birth.

New clause 35 provides clarity in a number of areas related to the appeal of an age assessment decision. First, a person who brings such an appeal must do so while they are here in the United Kingdom. If they leave the United Kingdom before the appeal is finally determined, the appeal is discontinued. Secondly, the clause provides for the appellant to apply to the tribunal for an order. Pending the outcome of the appeal, the local authority must exercise its function under children’s legislation as if the person is the age they claim to be. Where an age assessment has been made and the individual has not brought an appeal, or has concluded the appeal process, new clause 36 provides a mechanism for them to make further representations to a decision maker where they have new evidence to submit in support of their claimed age. That covers all the specific parts of the new clauses.

The hon. Member for Enfield, Southgate asked me about hotel accommodation. In cases involving a child, local authorities obviously will have obligations to look after them. For adults, hotels are not detention centres, and adults are not held their against their will. There is a duty of care on the local authority when someone is placed there; it is required to give wraparound care for that individual, particularly for children. I cannot really see children being placed there by themselves, but I understand what the hon. Gentleman is saying about where there is an issue around age. Somebody could slip through the net, but the local authority would be required to give wraparound care.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked about the devolved Administrations. As part of the consultation earlier this year, we engaged with the devolved Administrations and have had conversations about some of the detail of the new clauses, and we intend to continue to do so in the coming weeks. I hope that helps to answer his question.

The hon. Member for Glasgow North East mentioned the skeletal development of people from different ethnic backgrounds. We are conscious that ethnic and environmental factors may have an impact on physical characteristics that may be analysed as part of a scientific age assessment. We will endeavour to ensure that the scientific method used will consider the characteristics of people of different ethnicities and the environmental factors within a person’s country of origin.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central 3:15, 2 November 2021

The Minister may be about to pre-empt me, but I do not think he has answered the questions raised by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in relation to the national age assessment board, so will he at least undertake to write to us on that issue?

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

No, I have not finished yet. I am not quite ready to sit down, but I will answer that question. Basically, the board will predominantly consist of qualified social workers who, through being dedicated to the task of conducting age assessments and through training and the sharing of expertise, will achieve a more consistent and accurate approach to the task of age assessment. As Members have probably seen, such professionals are referred to as a “designated person” in the new clauses, and the board will have responsibility for conducting age assessments on age-disputed persons on referral from the local authority, as I said. Local authorities will retain the ability to conduct age assessments if they prefer to do so. If they believe that a person is actually the age they claim to be, they must inform the Home Office accordingly.

The hon. Member for Sheffield Central asked whether binding local authorities’ hands is just a power grab from central Government. The answer to that question is no. If local authorities wish to carry out their own assessments, they will be able to do so—without question, that will be the case. On that basis, I commend the new clauses to the Committee.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I have listened carefully to the Minister’s observations. To be fair, he made a good fist of defending the indefensible, but he failed to answer the concerns expressed by me and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in relation to the way that subsection (9) of new clause 32 drives a coach and horses through all the reassurances that we have been given. His criticism of the amendment as being a bit broad and involving quite a lot of work fails to acknowledge how narrow it is. It would simply require the Secretary of State to take advice before making regulations, and I therefore wish to press the amendment to a vote.

Question put, That the amendment be made.

Division number 56 Nationality and Borders Bill — Clause 58 - Age assessments

Aye: 6 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Question put and negatived.

Clause 58 disagreed to.