Draft Immigration (Age Assessments) Regulations 2023

Paul Blomfield Excerpts

Monday 20th November 2023 General Committees

[The Minister for Immigration (Robert Jenrick)]

I beg to move,

That the Committee has considered the draft Immigration (Age Assessments) Regulations 2023.

It is a pleasure to serve under your chairmanship, Mr Hosie. The draft regulations, which were laid before the House on 14 September, will improve our age-assessment process, which is under pressure from rising numbers of age disputes. The regulations relate to the introduction of scientific methods of age assessment.

Since 2017, there has been upward trend in the number of unaccompanied children entering the UK: in 2019, 3,775 unaccompanied children applied for asylum; by 2022, that had risen by 39%, to 5,242. There has also been a rise in the number of age disputes: between 2016 and June 2023, 11,275 age disputes were raised and subsequently resolved following an age assessment. Nearly half—49%, or 5,551 of those assessed—were found to be adults.

[Paul Blomfield (Sheffield Central) (Lab)]

My question is about the Minister’s opening statement, which was about not the numbers we are dealing with but the Government’s stated intention to improve the system. I served on the Nationality and Borders Bill Committee, where we spent some time discussing this issue. Will the Minister share with us—because at that stage his predecessor could not—the evidence that biological methods give any greater certainty of age determination than the existing Merton process? Will he also give us an indication of the percentage accuracy of the four different methods included in the draft statutory instrument?

[Robert Jenrick]

I will come to that in my wider remarks, but the first thing to say is that what we are proposing is not instead of the existing Merton process but in addition to it. That is an important disclaimer, because some countries elsewhere in the world have chosen to do one or the other but, given the evidential issues to which the hon. Gentleman alluded, we want to proceed with both together.

The scientific process, which the statutory instrument will enable us to move forward with, will further refine the existing process, getting us closer to the correct result. We are not suggesting that the age-assessment process will lead us to an absolutely precise result, but it will enable us to refine the result of the Merton assessment and get us to a better result. For all the reasons that I set out in my opening remarks, given the sheer numbers of people—adults pretending to be children—we are disputing, and all the problems that flow from that, we think it is important for us to use all the tools in our toolbox to reach the closest we can to a correct assessment of an individual’s age.

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[Robert Jenrick]

If that is the case, the hon. Member should provide them, but I have never been provided with any data or indeed anecdote of a child deliberately posing as an adult. All the data I have seen goes in the other direction, with adults posing as children in the belief, mistaken or otherwise, that they will receive better treatment here in the United Kingdom. That is the issue we are trying to resolve. Why does that matter? Because none of us want to see adults posing as minors and being placed in the same settings as genuine children. That is not an academic debate; it is a very serious matter. I have seen some of the appalling problems that can arise, including a case in which an individual went into the loving care of foster carers and then into a primary school, and ultimately went on to murder somebody in Bournemouth. Sadly, I could cite other incidents like that. This is what we are trying to stop.

[Paul Blomfield]

rose—

[Robert Jenrick]

I will make some progress.

Age assessment is, as I have described and our brief debate has already suggested, a complex and difficult task. Many unaccompanied young people claiming to be children arrive in the UK without any official documentation, because they have lost it or in some cases deliberately destroyed it, 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 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. The existing Merton-compliant assessment process is a holistic, social worker-led assessment that includes interviews, background checks and observations of the young person over a period of time. Scientific age assessment will be one piece of evidence used within such an assessment. It is intended to provide additional evidence and create a more consistent system. Importantly, the UK is one of the very few European countries that does not currently employ scientific methods of age assessment. The regulations will pave the way to the UK being more aligned with international practices.

[Paul Blomfield]

I thank the Minister for giving way again. I have a few questions, because this is an opportunity for him to answer the questions that were left hanging when we debated this issue in the Public Bill Committee. I would still welcome a response to the questions about the Government’s evidence that this change will improve the process and the accuracy percentage because, as he said in reply to my earlier question, we are talking about large numbers. We already have significant issues with delays in the system, so imposing a layer on top of the existing system should be done carefully, and only if we are convinced that it adds value. I welcome the fact that the two systems are to be used together, instead of one as a replacement, but what will happen, and what guidance will be given, in cases in which the conclusion of the Merton process is one age and the conclusion of the biological assessment is another?

[Robert Jenrick]

We do believe that this change will make a material difference; otherwise, we would not proceed with it. We have taken a great deal of time since the passing of the Nationality and Borders Act 2022 to refine this policy. We took advice from the specialist Age Estimation Science Advisory Committee as to how best to proceed and whether this policy would make a material difference, and we have concluded that it would.

The evidence from the scientific age assessment will be only one element of the ultimate decision. The decision will be made by a social worker. If that social worker believes, despite the scientific age-assessment evidence, that an individual is a minor, it will ultimately be up to them to make the final decision. If there were a risk of a perverse outcome, it would be up to them to use their professional judgment to determine whether the person was actually a minor and not make a mistake.

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[Robert Jenrick]

As Members would expect, we have given thought to how we will operationalise the plan, and there are different ways in which one could do that. We have not yet set out a detailed plan in the public domain, but it is likely that the measure will be delivered in the first instance by local authorities in a community setting, but paid for by the Home Office as part of the immigration service. We do not expect the cost to be borne by local authorities. In fact, the policy is likely to reduce the overall burden on local authorities, because today many local authorities, particularly those that encounter a high number of asylum seekers, are spending a great deal of money on navigating the Merton age-assessment process and looking after individuals as a result. If the process can be done in an expeditious way, supported and funded by the Home Office and central Government, there should be an overall cost reduction for individual local authorities.

Let me conclude my remarks by simply saying that I should note—

[Paul Blomfield]

Will the Minister give way before he concludes?

[Robert Jenrick]

I think I should probably—

[Paul Blomfield]

It is an important question.

[Robert Jenrick]

I will take one last intervention, but I do not want to delay the Committee, because we may be about to vote in the House.

[Paul Blomfield]

I genuinely appreciate the Minister’s giving way. One of the concerns expressed when we discussed this issue previously was about a child’s capacity to agree to a medical method of assessing their age and what would happen if a child does not have such capacity. The Government’s own advisory committee, to which the Minister has referred, says that the principle of informed consent is vital. In a situation involving traumatised individuals in an alien environment, how will it be judged that informed consent can genuinely be given?

[Robert Jenrick]

The hon. Gentleman makes an important point. He is right that we have been clear that we will not be taking X-rays or MRI images of an individual without informed consent. The Home Office will ensure that the individuals who undergo the age-assessment process will be supported to provide valid informed consent, and that the individual has the capacity, fully understands the process and is communicated to in a child-friendly and clear way, with interpreters assisting where appropriate. It will ultimately be for the social workers and clinicians who undertake the process, not Home Office caseworkers or officials, to satisfy themselves that informed consent has been provided.

I am conscious that we may be close to a vote in the House, so let me draw my remarks to a close by noting that last week’s Supreme Court judgment in relation to the UK’s agreement on the relocation of individuals to Rwanda does not relate to the draft regulations. Protecting genuine children, preventing the abuse of the immigration system by those who knowingly misrepresent their age and improving our asylum system overall remain priorities for the Government in any event, and it is extremely important that we protect genuine children from all the risks and challenges that come with allowing adults to pose as minors. I commend the draft regulations to the Committee.

[Stephen Kinnock (Aberavon) (Lab)]

It is a pleasure to serve under your chairship, Mr Hosie. The Government’s plans to use scientific methods in verifying the age of unaccompanied asylum-seeking children have been long in the making, but we would not necessarily know it from the somewhat sketchy evidence around the SI or the rather flimsy documents published alongside it.

The legislative framework for such assessments was set by the Nationality and Borders Act 2022, which has been on the statute books for more than 18 months. Yet the Government have still not managed to answer some of the most basic questions that these proposals raise, in particular how much they will cost and what their impact will be on our health services, at a time when our NHS is under unprecedented strain.

These are questions that any reasonable Member would expect the Government to address in their impact assessment. However, no such assessment has been provided, on the basis that, in the Government’s words:

“the policy and design are still under development.”

I note that the explanatory memorandum commits to preparing a full impact assessment as implementation of the policy moves forward. If the Minister could commit to a timely publication of such an assessment, I am sure that Members from all parties would be very grateful.

It is also unclear to me, as it was to the Secondary Legislation Scrutiny Committee, why the Government should feel the need to move forward with legislation that is still in the process of being developed. We would be very grateful if the Minister could shed some light on that question posed by the Secondary Legislation Scrutiny Committee.

We also find that House of Lords Committee expressing palpable frustration at the repeated running-up against a brick wall of any reasonable requests to Ministers for basic information, in this case about the extent of any further consultation between Ministers and experts from the medical and wider scientific communities beyond the members of the Government’s hand-picked Age Estimation Science Advisory Committee, to which the Minister referred. More importantly, what specific feedback have Ministers received from experts beyond the members of that committee in the course of any consultations that have taken place?

These questions really matter, because there is clearly no evidence of consensus among experts in support of the Government’s plans—far from it, in fact. From a report in a recent edition of the New Scientist, it is clear that a widely shared view among experts is that what the Government describe as scientific age verification is based largely on what those experts describe as pseudo-science. Based on their public statements, a range of expert bodies, representing such diverse fields as social work, paediatrics, dentistry and radiology, also seem to be proactively urging their members to play no part in such practices.

Therefore, my final question to the Minister is this: what thought have the Government given to how they might be able to implement the measures that he has set out today if professionals in the sector are not willing to operationalise them? My question specifically is this: do the Government have a plan B in the event that the key practitioners are not prepared to operationalise the measures that have been set out today?

[Paul Blomfield]

My hon. Friend raises some important questions, as others have, and he will know the concerns that we raised when the Nationality and Borders Act was in Committee. Clearly, we are in a situation where the actual implementation of these measures will fall to a future Labour Government, so I wonder whether he could confirm something. If it is our experience in Government that these measures do not add value and do not assist the process, will we review and scrap them?

[Stephen Kinnock]

We will certainly keep these measures under review, as would be the duty of any sensible Government. Policy making should be based on evidence, on facts and on the law, and Labour Members remain absolutely committed to those basic principles. If our review concludes that they are working, effective and accurate, then we would look to retain them. However, if such a review concluded that they were counterproductive, ineffective or damaging, particularly around safeguarding and so on, then—of course—we believe in evidence-based policy and that is a very important principle for any Government to pursue.

With that response to my hon. Friend, I conclude my remarks. I thank the Minister for his attention and look forward to hearing his response.

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[Chris Stephens]

I notice that that has been said, but not one country in Europe was actually named. It will be interesting to see whether the Minister mentions countries in Europe, because I find it curious that this approach is said to be standard in Europe, but not one country was named. I am looking forward to the answer, and I am sure it is being handed to the Minister right now on the little green Post-it note he has in front of him—yes, I am observant.

[Paul Blomfield]

I am sure that, like me, the hon. Gentleman is amused by the Government’s reliance on other European countries as a benchmark for good practice. Does he recognise that although many other European countries have the legal capacity to use biological tests, many of them have found that such tests have not worked and have not added value, and they are therefore discontinuing them?

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[Paul Blomfield]

I want to follow up my earlier questions with a few comments. I think that the Minister failed, as indeed the Government did when the Nationality and Borders Act was in Committee, to explain in detail—I hope that he will have another go in his concluding remarks—why the Merton process is failing. He talked about other European countries, and many see that as the gold standard in an effective system of evaluating age.

There was, in Committee, a real concern about the Government’s intention, at that stage, to scrap the Merton process and rely wholly on biological tests, so I welcome the fact that the Minister has confirmed that the Government are planning to run the two systems concurrently, as well as his assurance that, where there is a variance between biological tests and the Merton assessment, the decision will remain with the decision maker and there will not be any crude dependence on the biological tests. I do not think that he has been able to convince us that there is accuracy, to the point that is needed, within the biological test. The Government’s own committee says that it will provide an age range, rather than a specific age. I realise that the hon. Member for South Ribble was trying to be helpful by talking about the value of bone testing in archaeology, but when we are dating dinosaurs, we do not do it to the precise year, and, in this context, we are talking about a requirement to get a precise age. I hope that he will have another shot at explaining the scientific evidence for the reliability of biological testing.

I will press a little bit further on the question of consent, because there are real issues of concern there. The Minister will know that section 52(7) of the Nationality and Borders Act 2022 places a duty on a decision maker to make a negative credibility finding when a person does not consent to the use of biological methods, and that section 58(2) of the Illegal Migration Act 2023 allows for an automatic assumption of adulthood if the person refuses to consent.

The consequences are serious. Many children could be wrongly declared to be adults, contrary to the advice given by the Home Office’s own advisory committee, leaving them to face the prospect of deportation or—the Minister described the problem graphically—being placed wrongly in an adult setting, which raises serious safeguarding issues. The Minister has not yet adequately explained to us how the Government propose to deal with the child’s capacity to understand and agree to a medical method of assessing their age, or exactly what will happen when a child does not have that capacity. If a child seeking asylum is not looked after, has no legal guardian and does not have the capacity to consent, I hope that the Minister will explain in his concluding remarks who would be able to consent on their behalf. Also, how will that stand up in law?

Additionally, for consent to be valid, it must not be given under duress. That point was made by the Minister’s own advisory committee in its recommendation that there should be, because of—

[The Chair]

Order. I will suspend the Committee to allow for Divisions: 15 minutes for one Division and another 10 minutes for a subsequent one, so we will be back at 6.50 pm or 7 pm.

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On resuming—

[Paul Blomfield]

When we were interrupted, I was talking about how important it is that if consent is to be considered valid, it should not be given under duress. What could cause more duress than being told, “If you don’t consent, you’re going to be deported”, which is what the powers under the Act imply? That is probably why the Age Estimation Science Advisory Committee, which the Minister has spent so much time assuring us that he has turned to for guidance, says in its recommendations that

“no automatic assumptions or consequences should result from refusal to consent.”

I am interested to hear from the Minister how that relates to the consequences provided for in the Act. The position that the committee took is consistent with that of the Royal College of Paediatrics and Child Health, which stated that

“informed consent is fundamental to all medical practice, and by definition must be free from duress.”

There are wider ethical concerns, as has been mentioned. Leading medical bodies have expressed concern about using medical methods for examinations that are not medically necessary. That is not a superfluous concern. The methods proposed will expose children to the potentially harmful risks associated with exposure to radiation. The British Medical Association states that the

“use of such methods in a non-clinical context involves direct harms without any medical benefit”.

The British Dental Association has also voiced its opposition to the use of dental X-rays, saying that they are both “inaccurate” and “unethical”.

There are things that could be done to improve the system. The Minister touched on them but did not follow through on the problems with age assessments at the port of entry. There have been lots of problems with inaccurate age assessments conducted by Border Force officials at the point of entry. The Government do not publish data on the number of children who are incorrectly treated as adults by the officials and subsequently taken into care when referred to a local authority, which has significant consequences. I wish that the Government would look more at the better processes at that point that could make a difference in improving the procedures.

[Robert Jenrick]

I am pleased to wind up this short debate. I will answer as many of the questions as possible. I will begin with the points made by the hon. Member for Glasgow South West. I appreciate that the SNP and others in Scotland are opposed to the measures, but the Government’s sole interest, which I hope commands support across the House, is in safeguarding children. This is a safeguarding measure. It is not a measure to deter people coming to the UK, although we want to deter illegal migrants from taking unnecessary and dangerous journeys across the channel. The measure is purely because we care about protecting innocent children and do not want to see adults posing as minors placed in the same settings as them. That is why we need this measure.

Of course, the hon. Member is right to say that there are some non-governmental organisations that have opposed these measures. However, we would counter that by asking those NGOs how they propose to protect those innocent minors in settings such as primary schools, our own Home Office facilities or foster care if not by taking forward all of the tools in our toolkit. I think that they are naive at best and at worst making a serious error of judgment in preventing the Home Office from making use of all the tools that are at our disposal.

In response to the hon. Member’s second question about which countries in Europe use these measures, it is not so much a question of which countries use them as which countries do not use them. In fact, the only EU nations that do not undertake X-rays for this purpose are Cyprus, Slovenia and Ireland. Every single one of the other EU member states uses X-rays and many of them use even more sophisticated and advanced processes, including Germany, the Netherlands and Belgium. It is absolutely right that the UK follows suit and makes use of best practice.

[Paul Blomfield]

rose—