The UK Border Agency (UKBA) recently announced that – in conjunction with Croydon Council and Professor Graham Roberts of Kings College Hospital – the start of a 3 month trial of dental x-rays last week. The purpose of the trial is to establish whether dental X-rays are, in their words, a ‘useful tool’ in helping to resolve age disputes in the case of asylum applicants where the applicant has been assessed as an adult yet continues to maintain they are a minor.
The determination of age is important within the asylum process not least because children are entitled to specific rights under a number of international instruments such as the United Nations Convention on the Rights of the Child. Asylum seekers assessed as being over 18 are processed through the system as an adult. This means their safeguarding needs are never considered and they are liable to detention in an Immigration Removal Centre and removal as part of the fast-track process. Age disputes will also affect the level of welfare support and care a child receives.
The UKBA say the pilot project is ‘completely voluntary’ and that for those who choose not to participate ‘it will not adversely affect their claim for asylum or humanitarian protection’
In 2007 the Immigration Law Practitioners Association published When is a child not a child: Asylum, age disputes and the process of age assessment. In the preface to that publication, the then Children’s Commissioner for England, Sir Al Aynsley-Green – who for 30 years was a full time paediatric endocrinologist – suggested it was ‘naïve’ to argue that x-rays could determine a child’s chronological age (apart from the serious ethical concerns of subjecting a child to an investigation that had no therapeutic benefit to them). On the contrary it is likely to have an adverse effect given that in 1999 the Royal College of Radiologists said X-rays in such circumstances were inherently intrusive and carried a risk of irradiation.
In 2007 the Children’s Commissioner obtained a legal opinion from amongst others Nicholas Blake QC (now Sir Nicholas Blake and a judge on the Queens Bench Division of the High Court). This concluded that Home Office proposals to use dental age assessment contravened the law. The Home Office did not implement its proposals – not least perhaps because the government’s own Chief Medical Officer Sir Liam Donaldson in a 2008 letter to the Minister of State for Borders and Immigration said that there was little or no evidence that dental X-rays could accurately assess chronological age in children seeking asylum.
A clear power imbalance
However what about the argument that this is entirely voluntary, requires the consent of the asylum applicant and therefore offers adequate protection from abuse? On any reading the idea that this is ‘completely voluntary’ is a highly mendacious line of argument, failing as it does to recognise the obvious and clear disparity in power between state authorities and asylum claimants in such cases. It also ignores the very real concern over the validity of any consent obtained as what we are talking about here are extremely vulnerable and traumatised children – many of whom will speak little or no English. If you add in the fact that the UK has yet to give effect to its obligations to appoint guardians for separated children which means there is no one within the asylum process with parental responsibility who can properly advice children in such circumstances, then the idea that is ‘completely voluntary’ and that there are no consequences for refusing is shown to be a total fallacy..
Dental X-rays are clearly not the answer to age resolution disputes on either medical or ethical grounds, so are there alternatives? A move towards a more holistic approach to age evaluation would be welcome incorporating say; the applicant’s narrative account; a physical assessment of puberty and growth; together with cognitive, behavioural and emotional assessments – an approach which has been strongly advocated by the Royal College of Paediatrics and Child Health.
Where there is no clear evidence either way then the Home Office should in such cases – and given the alternative and draconian consequences – adhere to and enforce their own policy of giving the ‘benefit of the doubt’ to applicants – with all the attendant care and support that, as a civilized nation, we should be offering children in such circumstances.
Matt Evans is the Director of the AIRE Centre, a specialist charity whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Previously he was the Managing Solicitor at the Prisoners Advice Service for 6 years and worked at a number of leading legal aid firms including TV Edwards, Hickman and Rose and Hodge Jones and Allen.