When humans become migrants

A blog containing Marie-Bénédicte Dembour's 30 episode podcast to support her book.

Surely Not: Procedurally Lawful Age Assessments of Unaccompanied Minors

In the United Kingdom, when an unaccompanied asylum seeking child is not believed by the authorities to be a child (i.e. under 18), an age assessment procedure is carried out by  two social workers. These are employed by the local authority where the child happens to be. If the assessment concludes the assessed person is a child, the local authority will have to offer far greater support than if the person is found to be an adult. The younger the child, the more protection will have to be extended, including in terms of accommodation and education.

As children and refugee rights’ advocates have often said, age is regularly overestimated. A chapter I have written for a volume which will be published by Routledge next year confirms this through an analysis of government’s national statistics and responses to freedom of information requests I made to local authorities.

The UK recognises that, in the current state of scientific knowledge, age cannot be exactly known through scientific corporeal examination. Official guidance therefore sensibly insists that the young person must be given the benefit of the doubt whenever doubts subsist as to their age.

So why are so many young people nonetheless disbelieved? My chapter identifies five factors that contrive to let ‘worst practice’ emerge, as follows:

  1. Holding interviews in child-unfriendly places such as immigration detention centres;
  2. Failing to ensure that the appropriate adult who accompanies the young person for support is able to fulfil a useful role;
  3. Not addressing conflict of interests and letting the interview become an opportunity to trip the child rather than to determine their age in a holistic manner;
  4. Allowing evidence which does not prove anything to be relied upon;
  5. Letting the injunction to respect the principle of the benefit of the doubt be neglected.

This is not to suggest that age assessments are never ‘Merton-compliant’ (to use the label derived from a High Court case that involved the London Borough of Merton) but to stress that slippage into non-Merton compliance can easily takes place without redress. Indeed the chapter highlights five factors which explain why flawed age assessments are rarely corrected. These are:

  1. Lack of access to (good) legal representation;
  2. The fact that once an age assessment has been concluded, there now needs to be hard evidence to contest it (rather than the benefit of the doubt still applying);
  3. The fact that a local authority can withdraw a flawed, contested assessment, without then changing its overall perspective and practice;
  4. The uncaring nature of judicial review proceedings, which means that the child’s legal representative will often hesitate to bring even a compelling case to court;
  5. The fact that judges themselves do not always follow through the logic of the law.

All this goes goes to the heart of the rule of law and shows that the realisation of substantive human rights depends on proper procedures being enacted and respected.

I thank Routledge for the permission to publish an advanced version of my chapter on my blog.

Marie-Benedicte Dembour • December 21, 2016

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