Draft Immigration (Age Assessments) Regulations 2023

Robert Jenrick 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.

[Chris Stephens (Glasgow South West) (SNP)]

The Minister is trying to tackle this issue on the basis of adults claiming that they are children, but we also know that people seeking sanctuary and asylum are claiming sanctuary and asylum as adults when they are actually children. Does he have the relevant figures to hand?

[Robert Jenrick]

I do not have those figures. Having done this job for more than a year now, I have never come across any instances—

[Chris Stephens]

I have.

[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.

[Kevin Foster (Torbay) (Con)]

Does the Minister agree that the fact that the vast majority of European countries use some form of scientific age assessment speaks volumes for how it can assist in decision making? It will also allow us an opportunity to get empirical evidence when looking to prove whether someone who claims to be an adult is actually a much younger child. If we get this process right, it will remove the extreme cases that are cited regularly in the media.

[Robert Jenrick]

My hon. Friend speaks with great experience and is absolutely right: this change will improve the overall evidential standard of decisions, and will be particularly useful to weed out the obviously egregious instances that we all see represented in the media, which in my role I see all too often.

[Chris Stephens]

rose—

[Robert Jenrick]

If I may make a little progress, I will come back to the hon. Gentleman.

The statutory instrument specifies scientific methods for the age-assessment process, including magnetic resonance imaging of the bones of the knee and radiographs of the lower wisdom teeth and the bones of the hand and wrist. The images will be used to assess the skeletal and dental development, or maturation, of the bones and teeth. The methods have been recommended by the Age Estimation Science Advisory Committee.

Once scientific methods have been specified, if 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 that refusal to consent as damaging the age-disputed person’s credibility. That is referred to as negative inference. The damage to credibility included in the statutory instrument is for the purpose only of deciding whether to believe any statement that the person has made that is relevant to the assessment of their age, not of deciding the person’s credibility in their wider immigration claim.

The Home Office considers the taking of a negative inference appropriate and proportionate to prevent abuse of the immigration system. If individuals who deliberately misrepresented their ages were able to refuse to undergo scientific methods of age assessment without any consequence, it would undermine the UK’s ability to prevent adults from accessing children’s services and to safeguard genuine children using those services. A refusal to consent to a specified scientific method of age assessment without reasonable grounds would not automatically preclude the individual’s being considered a child. That refusal would still need to be taken into account alongside other relevant evidence as part of the comprehensive age-assessment process undertaken by social workers.

Members should also note that there has to be reasonable doubt about an individual’s age for them to go through the age-assessment process. The Committee can be reassured that those who are clearly children will be identified at the initial age-determination process at the border, so will not subject to any of the relevant procedures at all.

[Chris Stephens]

The Minister is being generous in giving way. He mentioned the Age Estimation Science Advisory Committee; is it not the case that it reported to the Government that it can estimate only whether an age is possible?

[Robert Jenrick]

As I think I have said, the Age Estimation Science Advisory Committee recommended that there was no precise way to estimate an individual’s age, but it did conclude that taking age assessment into consideration was a worthwhile thing to do because it would help us to get closer to the correct age. That is an important step forward and is one reason why most other European countries adopt such an approach.

[Katherine Fletcher (South Ribble) (Con)]

I do not know how many people in this room are fans of “Time Team”, but it is important to emphasise that the techniques are not new: they have been used in osteoarchaeology for many decades to identify the potential age of skeletons. Does the Minister agree that we are just talking about the application of modern technology to improve the determination of knee, wrist and wisdom tooth development?

[Robert Jenrick]

I do agree that the methods are well rehearsed and have been used by other European countries, including ones that we would respect in the way they handle such issues. In fact, X-rays have an error rate of two years, but we are not looking to apply an exact age or age range, as I have described: we are looking to reduce the likelihood that an individual might be an adult posing as a child. If it is any comfort to Members who are interested, both the Government’s chief scientific adviser at the time, Sir Patrick Vallance, and the chief medical officer, Sir Chris Whitty, reviewed the issue and support its soundness, and they praised the method of the Age Estimation Science Advisory Committee. I hope that reassures Members that this matter has been considered in some depth across Government, taking advantage of all the advisers that we Ministers have.

[Karl Turner (Kingston upon Hull East) (Lab)]

I declare an indirect interest in that my wife is a tribunal judge on the first-tier tribunal in the immigration setting. Has the Minister made an assessment of the cost implications of the policy, which sounds terribly expensive? Where does the cost fall? Will the NHS have to undertake this work, or will the Home Office be responsible for footing the bill?

[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.

--- Later in debate ---

[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—

--- Later in debate ---

[Robert Jenrick]

I am not going to give way to the hon. Gentleman, although I was grateful for his well-informed remarks today and it was right that he made them, because this is an important subject.

I will answer some of the points that the hon. Gentleman made earlier. First, on the question of implementation, I do not think that it will be as complex as has been posited, because these measures have been used for many years by many other European countries. Of course, there is work for the Home Office to do in the months ahead to operationalise these measures, but we can learn from the experiences of many other partner countries in taking forward our plans.

With respect to how this will play with the Merton process, I will point out that Merton has a number of disadvantages if used on its own. It is a long process and despite the best efforts of the Home Office and local authorities, we have not yet been able to make it a short process, as we would have wished, which is placing a great deal of strain on local authorities, which bear much of the cost. Also, during that period 50% of the individuals in these age-disputed cases are found to be adults and in many cases living in settings cheek by jowl with genuine children, which is not good from a safeguarding perspective. If we can ensure that some of the most egregious cases are weeded out using a scientific age-assessment process alongside the Merton process, that would be good for everyone concerned.

Secondly, the Merton process is not always uniformly applied. Different local authorities apply it in somewhat different ways, while the age-assessment process will be one uniform process across the whole of the United Kingdom.

With respect to the hon. Gentleman’s question about consent, I hope that I have answered it already by saying that we will only apply these measures in relation to individuals where there is informed consent. We will specifically train clinicians and social workers who will be involved in this process in how to judge whether there is informed consent, taking into account the individual circumstances of the child, ensuring that there is appropriate guidance and also interpreters where necessary. If an individual does not consent, this will not be the sole factor in deciding whether they are indeed a child. As I said in my answer to his earlier intervention, it is ultimately the decision of a social worker, who must use their professional judgment and experience to come to a rounded view of that person.

With respect to the hon. Gentleman’s question about the automatic assumption that is in the Illegal Migration Act 2023, that is a separate issue to this one and it will be implemented in due course. However, it is right that where there are individuals who choose not to go through this process, there is an ability for the Home Office to determine whether or not they are adults. We do not want to deter people from taking this test, particularly in the egregious cases where it is clear to all that the person concerned is an adult, but we have to prove it beyond doubt, because those are the cases that we are really seeking to weed out.

With respect to the questions put by the hon. Member for Aberavon, regarding the time that it has taken us to bring forward these measures, I will concede that things have been done in a deliberative fashion, because this issue is complex and it is important that we get matters right. After the passage of the Nationality and Borders Act 2022, we commissioned the Age Estimation Science Advisory Committee to assess the evidence and produce a thorough report. Then we have considered that report before bringing this SI to the Committee. One could have done it faster, but I am sure the criticism would then have been that we were rushing an important and technically challenging question, so we have chosen to do it in the way that we have. It is a new operational process, although we can learn from what has happened elsewhere in Europe.

Obviously, we intend to publish an impact assessment, and we will do so when we have bottomed out all the operational questions and can set out exactly how and when this will be operational.

On experts, we have brought together in the advisory committee a serious and experienced group of individuals to provide their advice to the Home Office. They in turn sought evidence from a much broader field of individuals and professionals. That was the right thing to do. Of course, we will continue to keep this under review once it has been operationalised, and we will learn from that, because, as the hon. Member for Aberavon said—although he was rather sitting on the fence as to whether the Labour party supports this—our sole interest is ensuring that this safeguarding measure is effective. If it is not effective, there is no point in continuing with something complex and expensive. We believe that it will be effective, and we make that judgment on the basis of the fact that almost every other European country already does this. With that, I will conclude my remarks, thank Members on both sides for their thoughts and commend the regulations to the Committee.

Question put.