Rwanda Asylum Partnership: Removal of Unaccompanied Children
(2 years, 5 months ago)
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Baroness Lister of Burtersett
To ask Her Majesty’s Government what steps they are taking to ensure no unaccompanied children are removed to Rwanda because they have been mistakenly assessed to be adults.
Baroness Lister of Burtersett (Lab)
My Lords, I thank noble Lords who have signed up to speak and the Minister; I suspect they were all hoping to have started the Recess by now. I tabled this QSD because I was so dissatisfied with the answer that the Minister gave on 15 June during questions on a Statement. In essence, I asked the question posed today, and the answer I received was that the Minister
“made clear in the other place that no unaccompanied asylum-seeking child will be sent to Rwanda, and I am sure I repeated it in this House.”—[Official Report, 15/6/22; col. 1597.]
No doubt she did, but that was not the point of the question.
I know it is government policy not to send unaccompanied children to Rwanda and that is welcome, although your Lordships’ House made clear during the passage of the Nationality and Borders Act its view that responsibility for anyone claiming asylum in this country should not be “offshored” in that way, particularly now that it has become clear that they will be given a one-way ticket regardless of whether they are subsequently granted refugee status.
The point of the question was to draw to the Minister’s attention the real concerns among members of the Refugee and Migrant Children’s Consortium of over 60 organisations that the commitment not to remove unaccompanied children is already being undermined because some of these children are being wrongly assessed as adults. Those concerns are reinforced by today’s highly critical report by the Independent Chief Inspector of Borders and Immigration on the processing of boat arrivals, which states:
“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.”
My concerns are all the greater given the forthcoming changes to age assessment, which I will not pursue now but were also rejected by your Lordships’ House. As was made clear during our debates, age assessment is not easy. Many children arrive without documentation of their birth date, for totally legitimate reasons, and it is widely recognised that physical appearance is not a reliable indicator of age. Nevertheless, an initial Home Office decision will be based on an individual’s “appearance and demeanour”. Where that gives rise to suspicion, one of two courses of action are currently taken. Under the first, the individual is treated as a child whose age is disputed and they are referred to a local authority for further assessment. According to a recent Written Answer, during the first quarter of this year, of 255 age disputes resolved, half concluded that the person was a child. Under the second course of action, if their
“physical appearance/demeanour very strongly suggests that they are significantly over 18”,
the individual is treated as an adult and moved straight to adult accommodation or detention—but there are no statistics for how many are so treated and no monitoring of the consequences. Why are these data not kept? Will the Minister look into the possibility of doing so?
Some data have been collected by the Helen Bamber Foundation from local authorities on those referred to children’s services because of staff doubts over their adult status, having first been sent to adult accommodation/detention between January and March of this year. Of the 211 in 64 authorities for whom they got information, two-thirds were found to be children, meaning that in just three months nearly 150 children could have been at risk of wrongful removal. The chief inspector cites Refugee Council statistics which show that in all but six of 106 resolved cases of young people deemed to be over 25 on arrival, they were subsequently found to be children.
On Report I cited the tragic example of Alex, who had killed himself and whose inquest concluded that his wrongful assessment as an adult and his subsequent ill treatment contributed to the “destructive spiral” that led to his death, even though the error was rectified. It is argued by Ministers that the wrongful treatment of adults as children has safeguarding implications, but this example illustrates the serious safeguarding implications of treating children as adults. Those consequences will be considerably more serious if they are removed to Rwanda as adults.
The Home Office has reassured critics that:
“Everyone considered for relocations to Rwanda will be screened and have access to legal advice”
and that there are adequate safeguards to ensure that children are not subject to inadmissibility procedures, but that was contradicted by oral evidence to the Home Affairs Select Committee by Asylum Aid, the Refugee Council and Medical Justice. In their experience, recent arrivals to the UK are being detained without any screening for vulnerabilities. To quote the director of Asylum Aid:
“While detained, isolated, frightened and overwhelmed, they often do not understand what is happening to them”.
They are told that they may be sent to Rwanda and have only seven days in which to access legal advice and respond to the many complex questions that arise in such cases. The notice of intent, the inadmissibility notice and the information pack do not even set out that unaccompanied children should not be sent to Rwanda. Why is that the case? Will the Minister undertake to ensure that, as a minimum, those documents contain that information?
Without prejudice to its opposition to the Rwanda scheme as a whole, the consortium makes four recommendations with regard to children as follows. First, no one who claims to be a child but is being treated as an adult by the Home Office should be issued with a removal notice until confirmation is received from their legal representative that they have not been, or will not be, referred to a local authority. Secondly, in any case of an age dispute, where a person has been assessed as an adult by a local authority or the new National Age Assessment Board, the Home Office should not initiate or continue with the inadmissibility process until the time limit for challenging the decision via judicial review or appeal has passed, or the challenge or appeal has been heard and decided. Thirdly, where a person has been issued a notice of intent but is then subsequently accepted into children’s services as a child, the Home Office should confirm that their asylum claim will be deemed admissible. The process to be followed should be published. Finally, as I argued earlier, those claiming to be children who are assessed as adults at the outset should be identified in the statistics and what happens to them monitored.
The Government rightly accept the principle that no unaccompanied child should be removed to Rwanda. Let us try to put ourselves in the shoes of a child who has made a difficult journey to the UK, often having faced trauma in their home country or during the journey, and who now believes they have reached safety. What must if feel like to be told that they are now to be forwarded, alongside adults, to a country they know nothing about, like a parcel stamped “no return to sender”. We are given some insight by testimony from a Refugee Council worker who has been working with two children initially detained as adults. That worker writes:
“They were very worried these kids. Very, very depressed, very emotional, lack of energy, lack of sleep. They just didn’t know what would happen to them, all they were thinking about was Rwanda … They are so frightened. The first one I saw, he just locked himself in his room … He was shocked. He said the experience was worse than travelling to the UK”.
Pretty sobering, my Lords. Perhaps the Home Office will dismiss such observations as just anecdotes but, as the Home Affairs Select Committee, which raised a number of concerns about age assessment in this week’s report, observed:
“Specific instances may illustrate systemic issues”.
From all I have read and heard, I fear we are talking about systemic issues. If the Government believe that no unaccompanied child should be sent to Rwanda, surely it behoves them to do all in their power to ensure that this principle is not undermined in practice. I thus welcome the fact that there will be a meeting between consortium members and officials soon. Might I ask that the consortium’s recommendations be given serious consideration and that there is a real commitment to working out a way of ensuring that the Government’s own aim is achieved? Might I also ask that those who spoke in this debate today are told what practical steps will be taken as a result of this meeting? We have a bit of time now that flights have been suspended during the leadership election. Please use it constructively to ensure that unaccompanied children receive the protection promised them.
Lord Lilley (Con)
My Lords, I congratulate the noble Baroness, Lady Lister, on securing this debate and on highlighting the intractable problem of how we cope with people whose age we cannot be certain about. We can all agree that we should open our arms to children who arrive in a safe country alone, unaccompanied because their parents or guardian may have been killed or died en route, while they were fleeing persecution in their homeland. Likewise, a young teenager, who has fled his or her homeland because their parents have been killed or jailed, and they were destitute and had no alternative but to flee their country, are worthy and deserving of our support and refuge. However, such circumstances are comparatively rare and the numbers involved would not be a serious problem, I would have thought, for our social services or immigration system. After all, in those circumstance, very few children would be able to obtain the finances to pay people smugglers to bring them illegally to this country.
Can the Minister tell us more about the reasons unaccompanied children give for arriving here without parent, relative or guardian? I am told that, pretty frequently, they are sent here by their family in the perfectly understandable, and in many ways laudable, hope that their child will find a better and safer life here. Parents may not be able to obtain the money to pay for more than one passage, so they send a teenager in the hope that he or she will at least have a better life than they have back in their homeland.
However, there are probably innumerable families in poor and troubled countries who would willingly send a child here if they could; they are essentially economic migrants, not political refugees. Can my noble friend confirm that that is why we do not provide an unlimited safe and legal route for children in these circumstances, if they have no relatives here already and that, if we did, it would impose a considerable burden on our local authority children’s services? Still less should we create a loophole for anyone who can pass themselves off as under 18 to enter this country and obtain costly support.
The problem is, of course, deciding on the age of a young person—a person claiming to be under 18—if they have no evidence of their age or year of birth. Adults are invariably told by the traffickers to destroy their papers en route, but young people who are genuinely under 18 would be better advised to bring and retain evidence of their age. Can my noble friend tell me whether such evidence tends to be available for young children in the sort of countries from which many of them come? If so, for those countries where it might be reasonable to expect a person to have some proof of age, should not the absence of that proof count in the decision as to whether their age is what they claim to be or what they appear to be?
As I said at the beginning, it is an intractable dilemma that we face because there is no scientific way of proving beyond peradventure the age of someone claiming to be a child. I have spoken to a former Minister for Education who said that in his experience, from having seen many of those purporting to be children, he was convinced that many were not. But we are talking, of course, of people coming here illegally from Europe. If they are worried about the fairness of the system here, they can of course put themselves in the hands of the authorities in Europe. It is always odd to me that so many people who want us to remain in Europe are so keen that everybody else gets out from that terrible place.
Lord Dubs (Lab)
My Lords, I thank my noble friend Lady Lister for initiating this debate. I should say that I am a member of the Joint Committee on Human Rights, where we have been looking at this issue. Although we are mainly looking at the Human Rights Act, we have had some time to look at it. I thank also the Refugee and Migrant Children’s Consortium for its very helpful briefing.
Perhaps I may answer a question posed by the noble Lord, Lord Lilley. At least one Afghan boy in Calais said to me that the reason he had made the journey and left Afghanistan before the Taliban took over completely was that they were busy recruiting young men into their armed forces. He and his family had no wish to fight for the Taliban, and therefore the family helped him to flee and paid the money. That seems to me a worthy example of why somebody becomes a refugee.
I do not believe that the memorandum of understanding on Rwanda has been properly debated. This is our first chance to have a debate on it at all, but the absence of such debate, with just little bits in Question Time, seems quite unsatisfactory for such a controversial policy, one which is widely opposed by so many people. There was a reassurance given by the Government that children will not be removed to Rwanda. We will take that at face value; we have had other assurances about children before. It was said clearly, so we had better take the Government’s word for it, but now they are trying to finesse it by arguing about the age of children.
What happens if somebody who arrives under the age of 18 then becomes 18 while waiting for their asylum claim to be sorted out? Does that mean they become automatically liable for removal to Rwanda, or will that be taken into account? What about young people in Calais trying to come to this country by legal means, which have mainly been closed to them? What happens to them if they have been in Calais, perhaps for a year, and then become 18? Are we going to say to them, “You’ve reached 18—you have to go to Rwanda”? This underlines why the policy is so unsatisfactory; it seems not to have been properly thought out. What happens if a person is sent to Rwanda and is adjudicated not to be an asylum seeker? We have never heard what happens to them then. Are they sent back here, or do they stay in Rwanda but not as an asylum seeker? These are the issues which require proper debate.
My knowledge of age assessment is that it is a very unsatisfactory experience. When the Home Office was doing it, I was told by a mother looking after a Syrian refugee girl that the girl had to go for an age assessment to the Home Office. The mother asked if she could go into the interview with the child and was told “No.” The result is that a child—I think she was 15 or 16—was put through a most unpleasant interview and came out of it absolutely traumatised. If a young person is a criminal, they are allowed to have either a parent, guardian or lawyer with them, but we do not allow that for asylum seekers. That seems absolutely perverse. Maybe it does not happen like that anymore, but I found that a very shocking experience.
There have been examples brought to light where young people have been detained under these provisions and given notice of intent for removal, even though their age assessment has not been completed. A long journey across several countries might make people look a lot older than they are. It is pretty difficult to have an accurate age assessment, and we should be understanding of what people have been through. This is a totally unsatisfactory policy and I hope the Government will climb down.
Baroness Hamwee (LD)
My Lords, what must it be like to be forced to leave not just your country but your home and to know little about where you are trying to head for, though you have an idealised version in your head? It is a journey full of hazards, because you have no means of travelling direct by a safe, regular route—such routes may not exist—and you are alone. What must it be like to find you are treated with suspicion? They say you are an adult, and you may look it after the experiences you have been through; inside you feel very young indeed and you are a child.
What would it be like then to be moved on to Rwanda, where, undoubtedly, criminal gangs will be operating to smuggle refugees who find themselves there to another country? Crucially, what will it be like to reach the UK, not having—and never having had— convenient proof of age, have difficulty being understood and be given a notice of intent about being sent to Rwanda?
What discussions have the Government had with the Rwandan Government about unaccompanied children? What assurances have they been given about the treatment of children and young people found, in fact, to be children? What have the Government advised their liaison officer in our diplomatic mission in Kigali or the monitoring committee? Those are both mentioned in the memorandum of understanding. Saying that children will not be sent there is not adequate when there is even the slightest doubt whether the procedures will ensure that no child will be treated as an adult.
It is largely NGOs which provide support in challenging decisions for those they can. Their resources are limited. I realise that caseworkers are stretched, and Home Office guidance may be difficult to apply, but it seems very wrong that society has to be so reliant on the third sector.
Members of the House received powerful representations about the age assessment provisions of the then Nationality and Borders Bill, and we had a very helpful, but necessarily limited, briefing from the noble Baroness, Lady Black of Strome, the interim chair of the interim age assessment committee—I understand that everyone is still interim there. However, the British Dental Association conversely believes that the use of dental and other X-rays to assess age is a fait accompli. It is concerned that dental age checks—if “checks” is the right term—are already taking place. It seems a long way from what we were told at the time of the Bill about safeguarding and triangulating information from different sources as a safety net. I found that very reassuring at the time; I hope not to be disillusioned, but I am on the way there.
Our Justice and Home Affairs Committee, which I am lucky enough to chair, heard last week from an academic who said there was
“not really any process for the best interest of unaccompanied refugee children to be properly weighted in any assessment … It is an impossible state of exception”—
an exception to the Convention on the Rights of the Child. He added:
“We have no discussion about unaccompanied refugee children’s development.”
Another witness said that family life and a child’s best interests are often portrayed
“as private matters, versus immigration control being in the public interest.”
She referred to the noble and learned Baroness, Lady Hale, in the Supreme Court, putting it that
“there is actually a strong public interest in”
the upbringing of, and opportunities for, children.
I thank the noble Baroness, Lady Lister, for ensuring that the House debates these issues; I wish it were not necessary.
Baroness Butler-Sloss (CB)
My Lords, I recognise of course that some adults pretend to be children, and therefore there must be some sort of age assessment process. However, listening to the noble Lord, Lord Lilley, I was reminded of when I too went to Calais and met Afghan boys. Those looking after them were absolutely satisfied that the half-dozen I met were all under 18, and mostly around 16. They all had moustaches, and one boy had an incipient beard. Anyone looking at them would say to themselves, “Well, I wonder, aren’t they bound to be over 18?” The fact is that those young men who had come from Afghanistan, fleeing the Taliban and the prospect of having to join the Taliban, were undoubtedly underage, but they mature very much more quickly than western Europeans. That is, to a great extent, an answer to part of what the noble Lord, Lord Lilley, said.
Looking at the Nationality and Borders Act, what really worries me is its wording: what sort of training would a “designated person” have? Under Section 52, it appears that they will have to use “scientific methods in age assessments”, and I wonder what sort of scientific methods those will be. The Act sets out some of the ways, but what are the people who will apply them be able to do, and how are they really going to show that a young man or girl—it is generally a young man—is in fact under 18? As has been said again and again by other noble Lords today and during the passing of the Nationality and Borders Bill, this is a really serious matter.
A number of very sensible amendments were put forward—not by me, but I supported them—in Committee and on Report of the Nationality and Borders Bill. None of them, as your Lordships’ House will remember, were accepted in the Commons by the Government, and none of them were agreed. As others said earlier, including the noble Baronesses, Lady Hamwee and Lady Lister, there is a real danger that, for those young men aged 16 and 17, what they have gone through before will not be made any easier but in many ways will be made worse by what this Government are putting them through.
Baroness Neuberger (CB)
My Lords, I am very grateful to the noble Baroness, Lady Lister of Burtersett, for securing this debate. It is really important that we debate this issue again—and, possibly, again and again. I am also very grateful to the Refugee and Migrant Children’s Consortium for its valuable briefing, and to the House of Lords Library. We have had excellent material.
Much that needs to be said has already been said, but I want to echo the words of my noble and learned friend Lady Butler-Sloss. You can see a whole variety of 16 to 19 year-olds and, depending on the culture from which they come, some of them will look quite old and some quite young. You cannot just look at them and decide what age they are; it is a really dangerous game to play to say that you can do it absolutely scientifically. This House needs reassurance that those individuals, arguably children but whose age is doubted, who are presently treated as adults after a short visual assessment by border officials, cannot be issued with a notice of intent to remove them to Rwanda. That is the first thing that we need from the Minister. We know that there have been a number of cases where that has been the case and, given the very short time available, I ask the Minister to answer several questions about this.
First, in the case of individuals claiming to be children who are sent straight to detention or adult accommodation, can the Minister tell us how many young people, adults or children, this affects? Can she tell us whether the Home Office monitors what happens to them or whether, in the light of this question, this debate and other concerns raised recently, she can reassure this House that the Home Office will in future monitor what happens to them?
Secondly, given concerns raised about age-assessment methodology when we debated the Nationality and Borders Bill, and the reassurances we were given that no child or young person would be forced to have an X-ray, and nor would refusal be taken as a negative indication in any age assessment, can the Minister assure this House that, while such assessments are being made, no attempt will be made to serve a notice of intent and that a refusal to be X-rayed will not make such a notice more likely?
Thirdly, associated with that point—and the noble Baroness, Lady Hamwee, raised this in part—can the Minister tell us whether dental X-rays, or any other X-rays for that matter, have been used already in the age-assessment processes since the Nationality and Borders Act was passed, and whether they might have been used in assessing the age of any of the migrants currently awaiting removal to Rwanda? The Age Estimation Scientific Advisory Committee has not yet made any formal recommendations on the issue of X-rays, and it would be good for this House to know. It is truly disturbing to hear that some of these people whose age is disputed, who have been detained as adults, are being served with notices of intent. These people are often found to be children, as other noble Lords have said. Can the Minister reassure this House that, until confirmation has been received from a person’s legal representative that they have not been and will not be referred into the care of a local authority, such Rwanda removal notices will stop?
This whole policy begs questions about safeguarding and children’s rights. Can the Minister reassure this House that the rights of children, including those whose age is disputed until a firm assessment is made and, where appropriate, also challenged, will be respected in full, and that the rights of the child will be paramount?
Lord Paddick (LD)
My Lords, I thank the noble Baroness, Lady Lister of Burtersett, for securing this debate. We debated age assessment at length during the passage of the Nationality and Borders Bill, the difficulty in accurately assessing the age of children and the danger that unaccompanied asylum-seeking children might be wrongly identified as adults and removed to Rwanda. I agree with everything that was said in the comprehensive opening by the noble Baroness, Lady Lister, and reinforced by other noble Lords—perhaps with the exception of the noble Lord, Lord Lilley, who said many things with which I would take issue if I had more time.
Evidence in the High Court this week has cast doubt on the whole Rwanda scheme, with UK officials apparently repeatedly telling the Government not to strike a deal with Rwanda over asylum seekers, according to court documents, as reported in the Independent newspaper. Rwanda was initially excluded from the shortlist of potential partner countries on human rights grounds. The UK high commissioner in Rwanda indicated the country should not be pursued as an option because it has been accused of recruiting refugees to conduct armed operations in neighbouring countries, has a poor human rights record and has been criticised by the UK for extrajudicial killings, deaths in custody, enforced disappearances, torture and crackdowns on anyone critical of the regime.
In February 2021, Rwanda was not recommended as it was rated amber/red for human rights, its asylum system and political feasibility, questioning whether mitigation measures would provide a respectable case against legal challenge. Officials in the Foreign Office continued to advise No. 10 against engagement in May 2021, suggesting Rwanda does not have a functioning asylum system in compliance with refugee convention obligations. A draft of the official government guidance, published after the deal was announced in April, had been sent to the Rwandan Government for review. They flagged a number of points of concern on the evidence base on human rights in Rwanda, and the Home Office changed the document based on their comments. Parts of the documents covering Rwanda’s previous asylum deal with Israel, which was ruled illegal by the Israeli Supreme Court, have been redacted by the Home Office’s legal team.
Numerous memos were circulating in the Foreign Office raising concerns about Rwanda’s human rights record and violations of the political opposition or those who oppose Rwanda’s president. The criticisms go on and on—and these are government documents that have been declared to the High Court. On April 12, the day before the agreement with Rwanda was signed, an internal government memo said the agreement was
“unenforceable, consisting in part of upfront payments, meaning fraud risk is very high.”
This is just some of the evidence, with more disclosure to come. Rwanda is no place to send any asylum seekers, let alone children.
There is no foolproof way of assessing age, as noble Lords have said. There is a real danger of highly vulnerable children being further traumatised—wrongly traumatised—by being sent to Rwanda if the Government proceed with this inhumane policy.
Lord Tunnicliffe (Lab)
My Lords, I start by paying tribute to my noble friend Lady Lister for sponsoring today’s debate and for her long-term commitment to this issue. The quality of debate and the calibre of speakers who have taken part demonstrate the widespread concern over this policy. Fortunately for the House, it also means there is little that I need to add, other than the strong support on these Benches for the concerns and questions raised.
The shadow Home Secretary has recently asked the Government to provide an evidence base and transparent costings for the migration and economic development partnership with Rwanda, and has received neither. These calls have now been echoed by the cross-party Home Affairs Select Committee, whose latest report has called for detailed costings and stated that:
“There is no clear evidence that the policy will deter migrant crossings”.
The committee reported:
“There is a worrying trend in Home Office policy announcements being made before detailed policy has been worked through, tested and even agreed between Government Departments”.
It is part of that worrying trend that we are today having to repeat concerns over a lack of a proper screening process for those who are chosen for offshoring.
Is the Minister able to confirm that of the cases pulled from the aborted flight on Tuesday 14 June, there were known concerns that those due to be on the flight included children and victims of torture and trafficking? What changes have been made to the screening and safeguarding process since mid-June? Organisations working in the sector have raised concerns that children as young as 14 are being given a “standard age” of 23 when they arrive in the UK. What engagement have Ministers had with local authorities and organisations working with asylum seekers to discuss reported concerns? Can the Minister provide the House with more information on how the best interests of the child are being demonstrably prioritised in age assessment policy?
Finally, the proven way to stop children taking desperate and dangerous journeys to reach safety or family is to provide safe and legal routes. Will the Government look again at family reunion routes for unaccompanied children, to allow children who have survived unimaginable hardship to join loving family members in the UK?
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank the noble Baroness, Lady Lister of Burtersett, for securing this debate and all noble Lords who have contributed to it. It is a very important topic and I am very happy to set out the Government’s position. In response to the point made by the noble Lord, Lord Dubs, I am happy to engage in future debates on this important issue.
Before I come on to discuss the specific points that have been raised, I hope colleagues will allow me to briefly set out some background. Last year, the Government published our New Plan for Immigration, and we have since introduced the Nationality and Borders Act, which is the legislative vehicle through which we will put much of that plan into action. In April this year, we announced the migration and economic development partnership with Rwanda, which is part of a co-ordinated strategy to disincentivise dangerous and unnecessary journeys, such as small boat crossings, to save lives and to increase public confidence in our immigration system. In reply to the point made by the noble Lord, Lord Tunnicliffe, we have many safe and legal routes which allow people to come here safely. The UK and Rwanda have worked closely on the arrangement to ensure adequate safeguards are in place to protect vulnerable people seeking safety, as set out in the memorandum of understanding. There are provisions for a monitoring committee to monitor the end-to-end process.
Turning to the specific topic of today’s debate, I cannot comment on ongoing legal proceedings but our position under the Home Office’s inadmissibility guidance is clear: unaccompanied asylum-seeking children are not suitable for third-country inadmissibility action and as such are not eligible for relocation to Rwanda. The approach to unaccompanied asylum-seeking children is also extended to any individual whose age has been disputed by the Home Office but where that age dispute is ongoing. I hope that answers the question asked by the noble Lord, Lord Dubs.
In answer to my noble friend Lord Lilley, as to why we cannot speculate on the reasons why unaccompanied asylum-seeking children might travel to the UK, everyone considered for relocation to Rwanda will be screened and have access to legal advice. This includes individuals who are undergoing a full Merton assessment and those who have legally challenged their assessment. The age of an individual arriving in the UK is normally established from the documents with which they have travelled. However, many who claim to be under the age of 18 do not have any definitive legal documentary evidence to support their claimed age, to answer the question from my noble friend. While many are clearly children, for others it is less clear. It is important that there is an effective decision-making process in place, not least for safeguarding reasons. An incorrect determination could result in an adult being placed with or alongside children. Conversely, if a child is wrongly assessed to be an adult, they may be served with an inadmissibility decision.
This initial age assessment is just the first stage in the broader age-assessment process. Where there is still doubt, the individual will be treated as a child, pending further consideration of their age. The Supreme Court recently and unanimously held that the Home Office’s initial age assessment policy was lawful in the case of BF (Eritrea) v Secretary of State for the Home Department, and that was last year.
The policy contains various safeguards, including that an individual whose age has been disputed may be treated as an adult without further consideration of their age only where two officers, one of at least chief immigration officer grade, have independently assessed them as being over the age of 18, based on their physical appearance and demeanour. There is a large margin of error in the individual’s favour, and that is designed to ensure that only where it is very clear that the person is an adult will they be treated as such.
Where there is less certainty, the policy directs officers to afford the individual the benefit of the doubt and treat them as a child, pending further assessment by a local authority. These measures will collectively serve to further minimise instances of individuals being mistakenly assessed as adults and provide them with an easily accessible route to seek a remedy where error does occur. There are also a number of safeguards in place to ensure that children are not mistakenly removed to Rwanda. Those who are deemed suitable for the inadmissibility procedure go through either a detained or non-detained route following a case-by-case assessment of their suitability for detention. For those who are not detained, where their age has been disputed by the Home Office, they are at liberty to approach a local authority and ask for a holistic age assessment, which takes into account all relevant information and evidence in relation to the young person. These are led by qualified social workers who are trained to work with children, and it is long-established Home Office policy to give significant weight to any decision on age made by a local authority. There has been no use of X-rays in the context of age assessment since the Nationality and Borders Act came into force.
However, where an individual is assessed by a local authority to be an adult, they are at liberty to challenge that decision through the courts. Where an individual is assessed to be suitable for detention, they will be referred through the detention gatekeeper process. This was introduced in June 2016 and works independently of both referring operational teams and detained caseworker teams to ensure that individuals enter immigration detention only where it is for a lawful purpose and is considered to be a proportionate measure on the facts of the case. If the detention gatekeeper is not satisfied that detention is lawful and proportionate, a referral can be rejected, or returned for further information. This process provides an element of independence in the detention decision-making process and protects potentially vulnerable individuals from being detained when it is not appropriate to do so. This would include individuals for whom there are any reasons to have concerns about the reliability of a decision on age.
Another safeguard is the requirement for regular detention reviews. Our published detention guidance sets out prescribed points at which continued detention must be reviewed. If a person who is detained makes representations that detention is unlawful on the basis that they are a child, the officer conducting the review will consider this and a decision on whether to maintain detention or release must be made as promptly as possible. In addition to monthly detention reviews, individuals also have the circumstances around their ongoing detention considered periodically at a case progression panel. These consist of a chair, panel members and panel experts, who review the appropriateness of continuing detention in accordance with the policy and legal framework.
Those subject to inadmissibility procedures will also have access to legal advice. They will be served with a notice of intent which notifies them that they are under consideration for the inadmissibility process and provides them with an opportunity to make any representations as to why they believe the inadmissibility process should not apply to them before a decision is made; this can include any representations about age. They will have the ability to seek legal recourse where they believe they have been wrongly treated as an adult and placed in detention.
Access to independent legal advice and judicial oversight of the process are two of the most important safeguards against the removal of individuals who may have been incorrectly assessed as adults, and the Home Office will of course fully respect the outcome of any successful legal challenge. Where an individual does put in a legal challenge on the basis of their age, we will of course wait for that to conclude.
Finally, we have in place a provision within the migration and economic development partnership to facilitate the return to the UK of an individual where there is sufficient cause. This would include individuals where it is subsequently established that removal was unlawful on any basis.
In terms of further strengthening the system, and on the point made by the noble Baroness, Lady Lister, we recognise that there is more to do to make the wider system as robust as possible. The age assessment reforms within the Nationality and Borders Act will improve the accuracy of age assessment outcomes, minimising the risk that a person will be incorrectly treated as either an adult or a child.
I close by thanking the noble Baroness, Lady Lister, for securing the debate—
Baroness Lister of Burtersett (Lab)
I think we have some time, so before the noble Baroness sits down, I would say that we have identified a gap between theory and practice. The Minister accepts that more work needs to be done but then says that everything will be fine once the Nationality and Borders Act is operational. However, this House rejected the age assessment procedures as taking us backwards rather than forwards. A number of specific questions were asked, which I do not think the Minister has answered. I would be grateful if she could do so subsequently in writing, but could I at least have an assurance, as I asked, that officials will consider seriously the recommendations put forward by the consortium, and that whatever decisions are taken at that meeting are relayed to noble Lords who have spoken in this debate?
Baroness Williams of Trafford (Con)
My Lords, I know that this House did not accept the age assessment process, but Parliament did, and eventually this House did not demur on that. I will certainly take back the noble Baroness’s points on the consortium, and I hope that we can make progress in a constructive way. As I say, I look forward to further debates on this issue, because I think it is important that we get it right.