In two recent cases, the courts have returned to the controversial issue of how the Home Office and local authorities assess the age of asylum seekers who claim to be children.
On 6 May 2009, Justice Keith ruled unlawful a Home Office decision that a young Chinese asylum seeker was over 18 which led to his prosecution and imprisonment. When HBH arrived in the UK and claimed asylum, he told an immigration officer that he was 17. At first, no one challenged his claimed age. But the following day, another immigration officer decided he was over 18 because of some answers he gave in interview. This assessment, described to the court as one based on ‘appearance and demeanour’, was held by the judge to be wholly inadequate, because of its very shaky foundation – age assessment is acknowledged to be extremely difficult and needs to be performed over a period by trained professionals – and because of the seriousness of the consequences. It led to his prosecution for failing to produce travel documents, in an adult magistrates’ court, his plea of guilty on advice from the duty solicitor, a remand in Chelmsford prison, and a sentence of eight months in a Young Offenders’ Institution – none of which would probably have happened if his claimed age had been accepted, because of official policy against prosecution of minors for the offence. There was obvious confusion over his age, as the sentencing court had his age as 17 and the YOI held him in its wing for 16- to 17-year-olds. At the end of his sentence, HBH remained in immigration detention, on the basis of the faulty Home Office assessment – despite the fact that by then, the Home Office had been forced by the courts to revise its policy on assessing age and to call in qualified social workers when age was disputed. Subsequently, a consultant paediatrician and two social workers assessed his age at 17, as he had claimed, and he was released from detention and given discretionary leave to remain until his eighteenth birthday. The declaration by the High Court that his assessment as an adult was illegal opens the way for HBH to have his conviction quashed.
Test case causes concern
Two days later, on 8 May, Justice Collins rejected the challenges of two young asylum seekers to local authorities’ age assessments overriding paediatric evidence that the youths were under 18. Two Afghan boys claimed asylum and said they were 15, but in each case the Home Office disbelieved them and – in accordance with its policy on age disputes – called in social workers, from Croydon and Kent respectively. The social workers agreed with the Home Office, and stuck to their decisions despite evidence from paediatricians that the boys’ physical and psychological development made it more likely that they were 15. The boys’ representatives argued that the local authorities should have deferred to the professional opinion of the paediatricians. At least 70 other young asylum seekers making similar claims were awaiting the outcome of the test case.
The judge accepted the local authorities’ position that trained and experienced social workers’ assessment of age is as reliable as that of paediatricians, so that it is unnecessary for authorities either to call in paediatricians themselves or to bow to paediatric evidence. The authorities should take the evidence into account, he said, but the final decision on the children’s age was theirs, and he could not interfere unless their decisions ‘verged on absurdity’.
But children’s activists have expressed concern at the ruling. Everyone accepts that there is no one scientific test which can reliably assess a child’s age; height, weight, dental x-rays, sexual development have all been rejected as reliable indicators. But that does not mean that paediatric evidence is useless. As Children’s Commissioner Sir Al Aynsley-Green has pointed out with the benefit of thirty years’ experience in paediatric medicine, there are pressures operating on both immigration officials and local authorities to assess children as adults – the Home Office, because unaccompanied children claiming asylum require special procedures, cannot be detained and must be granted discretionary leave to remain even if their asylum claim fails, and local authorities, because of their duties to accommodate and care for unaccompanied children in their area. Sir Al argued, in a statement to the court, that the input of an independent, medically qualified paediatric specialist was important to the process of assessing age in the light of these pressures and the extreme difficulty of accurate assessment. He also called for specialist centres, away from the asylum screening units which add to the intimidation and confusion young asylum seekers experience.
These concerns were not allayed by the judge’s decision: activists ask how realistic is it to expect social workers to decide a young person’s age after a 90-minute interview, without paediatric help? And without proper, professional age assessment, as accurate and comprehensive as it can be, how can young people be detained as adults, and refused social work care? As the government gears up to full compliance with the UN Convention on the Rights of the Child, these questions take on added urgency.