Justification Decision (Scientific Age Imaging) Regulations 2023

Lord Sharpe of Epsom Excerpts

Monday 27th November 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations laid before the House on 13 September be approved.

Relevant document: 55th Report from the Secondary Legislation Scrutiny Committee, Session 2022-23 (special attention drawn to the instrument)

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank all noble Lords for attending this debate. The first of these instruments, the Justification Decision (Scientific Age Imaging) Regulations 2023, sets out the affirmative decision made by the Lord Chancellor and Secretary of State for Justice on the Home Office’s application to use ionising radiation, also known as X-rays, as a scientific method of age assessment for age-disputed individuals subject to immigration control.

The second instrument, the Immigration (Age Assessments) Regulations 2023, has been laid by the Home Office to specify scientific methods of age assessment, namely analysis of X-ray and MRI images of certain body areas. By specifying scientific methods in this instrument, a decision-maker will be required to take into account a refusal to consent to the specified methods without good reason as damaging to an age-disputed person’s credibility.

On the use of X-rays, I remind noble Lords that the Ministry of Justice, as the justifying authority, has determined the practice justified under the Justification of Practices Involving Ionising Radiation Regulations 2004.

A regret amendment has been tabled by the noble Baroness, Lady Brinton, against both statutory instruments, and therefore the debates have been grouped. The Ministry of Justice has made the justification decision independently from the Home Office, as required by the 2004 regulations. I am sure noble Lords will understand that I cannot speak to this justification decision, as it is imperative that the justification authority is functionally separate from all other persons concerned with the promotion or utilisation of the practice. However, I can speak to the process the Ministry of Justice undertook to make this decision.

I turn first to that instrument. Under the Justification of Practices Involving Ionising Radiation Regulations 2004, the Lord Chancellor has the powers as the nominated justifying authority to determine whether the individual or societal benefits of this practice outweigh the health detriments, and therefore whether it can be justified. Following a thorough statutory application, consultation and decision-making process, the justifying authority has determined that the Home Office’s proposed practice was a new class or type of practice and that this can be justified, subject to the following conditions.

The first condition is that scientific age assessment involving ionising radiation is limited to radiography of the third molar and/or of the hand and wrist only. The use of computed tomography, or CT, scans for the purposes of assessing age is not permitted. The second is that the results of radiography of the third molar and/or of the hand and wrist must be used to assess only whether there is more support of the claimed age of the age-disputed person, or the age that assigned social workers have assessed them to be following a Merton-compliant age assessment. A likelihood ratio approach must be used to compare the weight of evidence.

The Home Office has committed to ensuring that all exposures are appropriate under the relevant legislation. The Home Office is also committed to exploring the viability of non-ionising scientific methods of age assessment, with the aim of eliminating the use of ionising radiation in age assessments if and when the effectiveness of such alternative methods is validated. The justifying authority notes this commitment and encourages the Home Office to cease using X-rays when alternative methods are validated.

The Lord Chancellor wishes to thank the consultees for their detailed and wide-ranging contributions in helping him make his decision, and the Secondary Legislation Scrutiny Committee for its thorough scrutiny of this statutory instrument.

I turn now to the Home Office instrument—the Immigration (Age Assessments) Regulations 2023. These regulations are being introduced to improve our current age assessment process, which is under pressure from rising numbers of age disputes, and relate to the introduction of scientific methods of age assessment. Since 2017, there has been an upward trend in the number of unaccompanied children entering the UK. In 2019, 3,775 unaccompanied children applied for asylum. In 2022, this had risen by 39% to 5,242. There has also been a rise in the number of age disputes; between 2016 and June 2023, there were 11,275 age disputes raised and subsequently resolved following an age assessment, of which nearly half—49%, 5,551 assessments—found the individual to be an adult.

Age assessment is a complex and difficult task. Many unaccompanied young people claiming to be children arrive in the UK without official documentation. While some are undoubtedly under the age of 18, in many instances it is not clear-cut. It is an unfortunate reality that some individuals misrepresent their age to gain an unfair immigration advantage. The public would rightly expect us to strengthen our processes accordingly.

The introduction of scientific age assessments is intended to improve our age-assessment system by providing additional biological evidence to aid better informed and more thorough decisions on age. Scientific age assessment will be one piece of evidence used alongside the existing Merton-compliant age assessment process, which is a holistic, social worker-led assessment. Importantly, the UK is one of very few European countries that does not currently employ scientific methods of age assessment. These regulations pave the way to the UK being more aligned with international practices.

This instrument specifies scientific methods for age assessment purposes, which are magnetic resonance imaging of the clavicle and the bones of the knee and radiographs of the lower wisdom teeth and the bones of the hand and wrist. These images will be used to assess the skeletal and dental development, or maturation, of the bones and teeth. These methods have been recommended by the Age Estimation Science Advisory Committee.

Once scientific methods have been specified, where an age-disputed person refuses to consent, without reasonable grounds, to the use of those methods as part of the assessment of their age, a decision-maker must take into account that refusal to consent as damaging the age-disputed person’s credibility. This is referred to as “negative inference”. The damage to credibility included in this instrument is only for the purpose of deciding whether to believe any statement they made that is relevant to the assessment of their age, not for deciding the person’s credibility in their wider immigration claim.

The Home Office considers negative inference appropriate and proportionate to deter individuals who deliberately misrepresent their age in order to game the system. A refusal to consent to a specified scientific method of age assessment without reasonable grounds would not automatically preclude the individual being considered a child. That refusal would still need to be taken into account alongside other relevant evidence as part of a comprehensive, holistic age-assessment process by social workers.

Noble Lords should also note that there has to be reasonable doubt about an individual’s age for them to go through the age-assessment process and be reassured that those who are clearly children will be identified at the initial age-determination process at the border.

I should note that the Supreme Court judgment in relation to the UK’s agreement on the relocation of individuals to Rwanda bears no impact on the Immigration (Age Assessments) Regulations. Protecting genuine children, preventing abuse of the immigration system by those who knowingly misrepresent their age and improving our asylum system overall remain a priority for the Government.

I look forward to hearing the views of this House on the instrument before us today. I commend both sets of draft regulations to the House. I beg to move.

Amendment to the Motion

Moved by

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will discard most of my speech because all the points I was going to make have been made articulately. We will support the noble Baroness, Lady Brinton, if she chooses to test the opinion of the House and I thank her for the thoroughness with which she introduced her amendment to the Motion. I agree with her that this SI is not yet ready to be put on the statute book.

The Minister set out the figures, which have been repeated a number of times as the debate has progressed. A number of questions were put to him about the issue of consent, the state of the European Convention on Human Rights, and answering the questions put by the Children’s Commissioner and other bodies which have expressed their extreme concern about the measures being put forward by the Government.

The noble Lord, Lord Murray, just intervened, giving examples of European countries which do some form of tested age assessment. However, this is of course a contested area in many European countries; we are not unique in this being a politically contested issue.

Noble Lords also made a point about the review mechanism that the Government propose to put in place so that, as this progresses—if indeed it does progress—the Government can keep an open mind about how effective it is and whether further changes in assessment methods need to be made. However, I want to conclude on a different point which no other noble Lord has made, and to talk slightly wider than the SIs themselves.

Last May, with my noble friend Lord Coaker, I visited the old RAF Manston airfield and the landing site, Western Jet Foil, in Dover harbour. I repeat my thanks to the noble Lord, Lord Murray, for facilitating that visit. What became apparent to me then is that all the political debate, including today’s debate, is about the vast majority of young men who are potentially claiming to be under 18, and the impact that has on them. That is the totality of the political debate. However, there is another group of young men, which was drawn to my attention, who appear to the officials to be under 18 but are claiming to be adults. They are doing that because they want to work, either legally or illegally. Many of them will have started working in their home countries when they were 14, and they will have had a few years work under their belt and are coming here to better their prospects.

What tracking is there of those young men? I have raised this issue with the noble Lord, Lord Murray, and as far as I am aware, there is no tracking of them. Whether they are more likely to abscond once they go into the adult system or whether the Home Office tracks them at all, it is a significant, not an insignificant cohort. It was drawn to my attention when I made that visit and I will be very interested to hear the noble Lord’s answer, maybe by letter, on how those young men are tracked.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for their contributions to this interesting and insightful debate. I thank the noble Baroness, Lady Brinton, for her regret amendment, which I will obviously refute, because the introduction of scientific methods of age assessment is an innovative approach for the UK. It is entirely right that the Government take action to disincentivise individuals from deliberately misrepresenting their age in order to game the system, as well as to safeguard and promote the welfare of genuine children, who have a need to access children’s services. Scientific methods provide additional evidence and create a more consistent system, and there is nothing inhumane about those objectives. I hope that noble Lords will consider each regulation on its merits, and I will do my best to answer all the questions. If I miss any, I will endeavour to write.

The question of accuracy has come up. Determining the age of a young person is an inherently difficult task. The Home Office is aware that there is no current single age-assessment method, scientific or not, that can determine an individual’s age with precision. In answer to the noble Lord, Lord German, there is a risk of harm to both the age-disputed individual and to the public interest through misclassifying children as adults, or adults as children, which the noble Lord, Lord Ponsonby, referred to—I will come back to this. That is why the UK Government are taking steps to improve the robustness of the age-assessment process. Scientific age assessment will be completed alongside the current Merton-compliant age assessment, and the age-assessment process will remain a holistic assessment. The well-being of the individual will continue to be at the forefront. I am happy to say categorically to the noble Baroness, Lady Lister, that scientific methods will not replace, but will be used alongside, Merton. The noble Lord, Lord Winston, asked me how accurate these methods are. For X-rays, I do not know—I will find out—but for teeth X-rays it is two years either side. I will come back to this in more detail in a second.

On international comparators, to which my noble friend referred, the Home Office believes that the negative credibility inference in respect of someone’s claimed age is necessary, logical and proportionate where a person refuses to undergo a scientific age assessment without good reason. It is important to note that negative consequences, such as automatic assumptions, are applied with variations by a number of ECHR signatories, including the Netherlands, Luxembourg, Poland, Slovakia and the Czech Republic. The UK is an outlier as one of the very few European countries that do not currently employ scientific methods such as X-rays as part of age assessments.

On our plans for operationalisation, the Home Office wants to specify these methods as soon as possible to pave the way for the introduction of scientific age assessments. The increasing number of age-disputed young people presents safeguarding challenges and puts additional pressure on children’s services, which should be accessed only by genuine children. This is a new and complex process that the Government need to get right. The full plans for integrating scientific age assessments into the existing processes will be set out in good time, and full guidance and assessments will be provided. For now, the Home Office has welcomed the report from the Age Estimation Science Advisory Committee and is making clear steps to proceed with the recommendations and consider others.

Consent was raised by a number of noble Lords, including the noble Baronesses, Lady Brinton and Lady Lister, the noble Lord, Lord Kerr, and the right reverend Prelate the Bishop of London. To address the concerns regarding consent, I assure all that no X-ray or MRI image can or will be taken without informed consent from the individual. The Home Office will ensure that the individual has capacity, fully understands the process and is communicated to in a child-friendly and clear way. Interpreters will be available to assist with understanding information, and documents will be translated into a language the individual understands. If the individual refuses to consent to a scientific age assessment, they will continue to proceed with the current Merton-compliant age assessment. Those who are clearly children will be identified as part of the initial age assessment and not included in the cohort for an age assessment.

It is the Home Office’s policy to refer individuals for an age assessment only when there is some doubt about their age—specifically, where that individual’s physical appearance and demeanour do not very strongly suggest that they are significantly over 18. This threshold is set purposefully high to ensure that individuals can be given the benefit of the doubt. As a result, only those whose ages are in genuine doubt would be referred for this scientific age assessment.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the Minister has repeated a statement he made in his introduction about it being only the clear-cut cases. Can he explain how, in the year to August, in just one city—Leeds—30 children arrived, having been assessed as adults by the Home Office on initial arrival, and were immediately identified by people in Leeds as children? Will those children not face the potential of ionising radiation and other medical procedures as a result of this regulation?

[Lord Sharpe of Epsom (Con)]

I am not familiar with the case that the noble Baroness refers to, so I am afraid I will have to look into it.

Individuals will be assessed for their fitness to undergo scientific age assessment, which will include consideration of both mental and physical health. The individual will not undergo scientific age assessment if they refuse to consent. Reasonable grounds for refusal will be set out in guidance and considered on a case-by-case basis. Appropriate adults, translators and others will be available to support the young person. If a young person is assessed as lacking the capacity to consent, they will not undergo any such methods and a negative credibility inference will not be taken.

Provisions under the Nationality and Borders Act 2022 allow for decision-makers to make a negative inference. As I have said, the Home Office considers negative inference to be proportionate to prevent individuals deliberately frustrating the system. There is precedent in other legislation of negative consequences being applied where an individual refuses to submit to a medical examination. For example, an individual may be asked to undergo a medical examination to determine their eligibility for employment and support allowance. If they fail to undergo such an assessment, they will be treated as ineligible. Therefore, consent can still be informed and freely given even if there is a negative consequence for a refusal to give that consent.

It is important to note that taking a negative inference from a refusal to consent does not result in an automatic assumption that the individual is an adult. Rather, the negative inference is taken into account as part of the overall decision on age. A decision-maker can still assess an individual to be a child following the holistic age-assessment process, even if they refuse to consent to scientific methods without good reason.

I will answer the questions from the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Hamwee, about monitoring and review. The Ministry of Justice will monitor and review the Home Office’s use of X-rays approved by this instrument and compliance with the conditions as per Regulation 10 of the Justification of Practices Involving Ionising Radiation Regulations 2004.

I would like to reassure the House that, as this is a new practice in the UK, the Home Office will monitor and review the policy to evaluate its success and make any changes necessary for its effective operationalisation. The Home Office will not do this in isolation but will continue to seek advice from the Age Estimation Science Advisory Committee and key stakeholders to support the process. Quarterly datasets including age disputes are already published on GOV.UK and, when scientific methods of age assessment are introduced, the Home Office will ensure that the relevant statistics are published alongside them.

The noble Baroness, Lady Brinton, questioned whether these regulations should be made before a full impact assessment and costings have been laid before Parliament. As I stated, scientific methods will be integrated into the current age-assessment process. A full impact assessment has not been produced at this point as it would not provide the rigour of economic value required at the early stage. The Home Office recognises the importance of transparency—please be assured that a full impact assessment will be prepared when appropriate, as my right honourable friend the Immigration Minister said in the other place.

I will go into the costs in a little more detail. As I have said, we could not provide the rigour of economic value that the impact assessment would require. Instead, the Home Office has produced an economic note that pertains to the narrow focus of the SI—the impact of introducing the specified methods for age-assessment purposes. We have decided not to publish this yet, as the information provided would be isolated from wider plans; it is the Home Office’s view to wait until we have an appropriate level of detail to better reassure and inform the public of our plans. As policy and operational development continue, the Home Office will take a view on when it is appropriate to produce the full impact assessment.

[Lord Kerr of Kinlochard (CB)]

I am rather surprised that the Minister has repeated the bits of the Home Office written evidence that struck me as a bit odd. The clue, surely, to the timing of an impact assessment is in the name: impact. It should be there at the start. We are not terribly interested in an impact assessment two or three years down the line. We would have liked to have one today.

[Lord Sharpe of Epsom (Con)]

I take the noble Lord’s point; obviously, I will take it back to the Home Office and make sure that it is well understood.

On the use of X-rays, I remind the House that the Ministry of Justice has determined the practice is justified under the Justification of Practices Involving Ionising Radiation Regulations 2004. The Ministry of Justice made this decision to justify the practice independently from the Home Office, as they are functionally separate on the policy of age assessment as required by the 2004 regulations.

Your Lordships will know that X-ray scans are commonly used in the UK for medical purposes by doctors and dentists. Although age assessment is for non-medical purposes, images will be taken by qualified professionals who are trained to minimise exposure to ionising radiation and any other potential risks. We expect all professionals to abide by their own professional guidelines, as well as any set out in Home Office guidance, but medical professionals are required by the relevant legislation for ionising radiation.

The Age Estimation Science Advisory Committee suggests that any risk associated with this low level of exposure to ionising radiation is minimal when compared to the benefits of swifter, more informed age assessment in terms of both safeguarding and well-being.

[Lord Winston (Lab)]

The word “benefits” applies to the subject who is being X-rayed, does it not? Can the Minister tell us what the benefits to that subject are because it does not apply otherwise?

[Lord Sharpe of Epsom (Con)]

I am coming on to some more of the noble Lord’s more detailed questions; I will endeavour to answer that question in a second.

The Ministry of Justice has undertaken a detailed consideration process to ensure that the use of X-rays is proportionate and justified. The noble Lord asked how we will ensure that the use of these scientific methods is ethical and not harmful to children. We have a statutory commitment to safeguard the welfare of children. One of the reasons for introducing scientific age assessment is to better protect against adults being treated as children in order to ensure that vulnerable children can swiftly access the support that they need. The use of ionising radiation is, for instance, highly regulated by the Justification of Practices Involving Ionising Radiation Regulations 2004, which require demonstration that the individual or societal benefits of their use outweigh any health detriments. For the methods that the Age Estimation Science Advisory Committee proposes, the ionisation risks are extremely low.

The Home Office will ensure that any methods used comply with all regulatory requirements and standards. AESAC suggests that radiation exposure is minimal when compared to the benefits of a more informed age assessment. For the purposes of the methods that the committee proposes, the ionisation risks are extremely low, as I have said. They are typically less than 0.001 of a millisievert for an extremity X-ray, such as the wrist, or 0.2 of a millisievert for a dental—I will not be able to pronounce this—X-ray. Those radiation risks relate to something like less than two hours on an international flight, I believe.

I turn to the AESAC advice and the automatic assumption. On the Secondary Legislation Scrutiny Committee’s concern that the application of negative inference is contrary to advice provided by the Age Estimation Science Advisory Committee, let me assure the House that this is not the case. In answer to the noble Baroness, Lady Hamwee, I should also say that the Government’s Chief Scientific Adviser, Patrick Vallance, and the Chief Medical Office, Chris Whitty, have supported this. The scientific advisory committee recommended that no automatic assumption or consequence should result from a refusal to consent. Taking a negative inference does not result in an automatic consequence; rather, the negative inference is taken into account as part of the overall decision.

I forgot to address the points raised by the noble Lord, Lord Winston, about various protected characteristics: environmental factors, race, diet and so on. We are conscious, of course, that methods to assess age such as bone development are affected by factors such as ethnicity, body mass, sex, puberty and so on. We are seeking scientific advice to explore this issue further and any steps we can take to mitigate these impacts. The Age Estimation Science Advisory Committee’s advice suggests that, although skeletal maturation may differ slightly depending on ethnicity, there is also some evidence to suggest that differences in nutritional status, disease and social status may have more influence on maturation timings. In addition, dental development is less affected by such socio-economic factors; that is one of the reasons why the AESAC recommends using multiple biological areas of interest, which the Home Office is proposing to do.

I want to take this opportunity to thank the Age Estimation Science Advisory Committee for its report because, as I have set out, the science and analysis is being used as per the committee’s recommendations. The Home Office will not use the scientific methods to determine an exact age or age range; rather, it will use the science to establish whether the claimed age of the age-disputed person is possible. It is key that methods used for age assessment have a known margin of error. Combining assessment of dental and skeletal development of multiple body areas is important as it increases the accuracy of the approach. The Age Estimation Science Advisory Committee advocates for a likelihood ratio method, which offers a logical and consistent summary of the evidence and permits greater confidence in the assessment of whether the claimed age is possible. The likelihood ratio is widely recognised as the appropriate way to summarise evidence, and this approach offers the best way forward for the introduction to scientific age assessments to strengthen our system.

The noble Lady Baroness, Lady Lister, asked who we have consulted. The Ministry of Justice consulted all the statutory consultees listed under the regulations, including the UK Health Security Agency and the Health and Safety Executive. The full list can be found in our decision document. In the review of the consultees, the Health and Safety Executive, the Office for Nuclear Regulation, the Environment Agency, the Scottish Environment Protection Agency, Natural Resources Wales and the Department of the Environment (Northern Ireland) have confirmed that this application falls outside their regulatory interests. However, the UK Health Security Agency, the Health and Safety Executive and the Food Standards Agency advise the following:

“The decision to use X-ray imaging appears well considered and appropriate to minimise any individual’s radiation exposure”.


All exposures to ionising radiation will fall under the remit of the Ionising Radiation (Medical Exposure) Regulations, which place many responsibilities on those carrying out exposures. There should be careful consideration to ensure that the contracted parties carrying out the exposures conform to these regulations and that the predicted doses for both dental and wrist X-rays are appropriate estimates.

I have probably spoken for long enough—I have definitely spoken for long enough. I owe the noble Lord, Lord Ponsonby, an answer to his question about children pretending to be or behaving as adults. I will come back to him on that; I do not have the detail to hand, as your Lordships can imagine. I think I have addressed the majority of the issues that were brought up. As I said earlier, I am grateful for noble Lords’ constructive and helpful suggestions and questions. I trust that noble Lords will now recognise the need for this instrument; I assure them that the Government are fully committed to working towards a better-informed and more consistent age-assessment process. This instrument is essential to that aim; I therefore commend it to the House.

[Baroness Brinton (LD)]

My Lords, I thank the Minister for his response. Unfortunately, I fear that many of the questions we asked across the House were not responded to. I heard very clearly that this has been designed as an innovative approach to discourage applicants but I also heard a lot of “We need to wait until we have more detail before we can tell you the answers to the questions that we want”.

I refer right back to the beginning of this debate. The noble Lord, Lord Murray, gave an absolute assurance at the Dispatch Box that the regulation-making power would not be exercised until the science is sufficiently accurate to support providing for an automatic assumption of adulthood. These SIs do not do that—worse, the Government say that they know they are not ready. On that basis, I wish to test the opinion of the House.