Age assessments: Why they must be rights-respecting
Leah Duncan-Karrim writes about the impact age assessments have on children’s human rights.
In April, the Nationality and Borders Act became UK law and will have a profound effect on children and their families who seek refuge in Scotland. Many of the changes introduced through this legislation are not human rights-compliant. They’re not in the best interests of children and don’t offer them support and protection they’re entitled to. This is especially true of the provisions relating to age assessments, which are incompatible with the rights of children contained in the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of the Child (UNCRC).
The provisions even impact on the UK Government’s plan – in violation of the Refugee Convention – to deport refugees to Rwanda as there is a huge risk that children incorrectly deemed to be adults will be deported. Shockingly, children who are with their families will also be eligible for deportation, with a severe impact on their rights including mental health and development.
What is an age assessment?
When an unaccompanied child refugee arrives in the UK, it can be difficult to tell their age. A person claiming to be a child should be presumed to be one, unless it would be unreasonable to do so, in compliance with international law. However, if a person looks under 25 but over 18, an age assessment may be carried out. Until now, age assessments had to meet a legal standard known as Merton compliance. Social workers would carefully assess the person’s social and emotional development to determine whether they were a child.
How has the law changed?
Age assessments may now involve medical testing and the UK government will provide a list of approved “scientific methods” for age assessment. We are very concerned at the introduction of invasive physical or medical examinations for children, especially as there is no clear consensus or reliable methodology for this. Medical assessments directly engage children’s right to privacy and bodily integrity under Article 8 of the ECHR. The potential for re-traumatisation during an age assessment risks violation of rights to recovery under the UNCRC (Article 39). The UN Committee on the Rights of the Child is clear that the least invasive method of assessment should be used, and where it is inconclusive, the child should be given the benefit of the doubt.
However, the Act says that if the child refuses the test, it will damage their credibility.
Why is it important to get it right?
Child refugees are entitled to all the same rights and protections as other children. These children often have experienced significant trauma before arriving in the UK. They may also now be in a country where they don’t know anyone or understand the language. The UN High Commissioner for Refugees is concerned that children assessed as adults won’t have sufficient awareness of their rights or support to challenge decisions.
The Commissioner has previously warned that children’s rights need to be paramount in any age assessment. Children need an immediate return to the previous model which provided greater rights protections. Scottish councils should continue with their own Merton compliant age assessments. They should decline to use other ‘scientific methods’, and not allow the Home Office to determine on their behalf whether a refugee is a child or not.
The Nationality and Borders Act will do nothing to fix the problems with the asylum system. Instead it will penalise children, traumatise survivors of conflict and abuse, and violate the UK’s international obligations. It should be repealed at the earliest opportunity.