Tooth and lies: assessing the age of lone refugee children
An awful lot has been said about the recent arrival in the UK of fourteen children from the Calais ‘Jungle’ refugee camp that’s facing demolition in the coming weeks.
It’s hardly a biblical exodus.
I’m reluctant to add to the pile of online material on the story. But there’s something very unseemly about the exposure of newly arrived young refugees to the glare of paparazzi photographs, front-page tabloid headlines, age-guestimating phone apps, their images annotated and analysed by total strangers on computer screens.
The UK, like other European nations, is fetishising refugees in a rather grotesque manner which says a lot more about our society than it does about the refugees trying desperately to enter it.
Tory MP David Davies sparked outrage when he took to twitter to unilaterally appoint himself as an expert in assessing the age of the new arrivals from Calais. Mr Davies called for child refugees to be subjected to dental x-rays to determine their ages, telling the press that the UK routinely uses such testing methods.
But the UK has never used such practices. The Home Office has denied the suggestion. The British Dental Association has also rejected Mr Davies’ proposals as ‘inappropriate and inaccurate’.
Musician and pop-star Lily Allen and football commentator Gary Linekar are among those who have faced abuse (and huge swells of support) for standing up to racist and bigoted views towards the Calais minors. But what does the law say about how decision-makers should assess someone’s age in borderline cases?
The foundational case of R (B) v London Borough of Merton  EWHC 1689 (Admin) set out the minimum standards that to be followed in age assessment interviews. That case concluded that ‘the decision maker cannot determine age solely on the basis of the appearance of the applicant’.
Lawyers talk about age assessments being ‘Merton compliant’. This refers to a wide range of procedural safeguards, including that interviews should be conducted by appropriately trained social workers within local authorities, using a wide variety of methods and taking into account many different sources of evidence. An assessment based on physical appearance alone (such as that carried out by Mr Davies and the tabloid press) is obviously flawed and won’t be ‘Merton compliant’.
Accordingly, in the case of R (AM) v Solihull Metropolitan Borough Council (AAJR)  UKUT 00118 (IAC), the Upper Tribunal held that:
‘… almost all evidence of physical characteristics is likely to be of very limited value. That is because… there is no clear relationship between chronological age and physical maturity in respect of most measurable aspects of such maturity.’
These aren’t ‘leftie luvvies’ or raven haired Corbynistas. Nor are they pesky Eurocrats sat in Strasbourg and Luxemburg. They are senior British judges: conservative fixtures of the British establishment.
All that guidance seems to be fairly common-sense.
As campaigners at Right to Remain have pointed out: ‘Young people develop in different ways, in different parts of the world, depending on their individual experiences.’
So David Davies is talking non-sense and his approach, if adopted by a decision-maker, would be found unlawful and rejected by a court of law at considerable public expense.
There’s no consensus that any single method of examination can reliably determine a young person’s age.
Further, Mr Davies has misread the current Home Office policy (Assessing Age) which says on page 17:
The margin of error in determining age through [dental x-rays] is approximately plus or minus 2 years or less, for 95% of the population… there will be cases where such
reports should be given considerable weight – for example because the applicant’s claimed age is within the possible range… Similar care is required when considering assessments of bone-age involving x-rays (most likely, of the hand) where variations may be due to differences in the timing of the onset of puberty and the whole process of skeletal maturation, which may themselves be affected by illness, nutrition and ethnic variations. The child’s medical, family and social history will therefore need to have been taken into account in any such assessments.
When challenged in the Guardian, Mr Davies acknowledged that perhaps he hadn’t read the Home Office policy correctly.
That Mr Davies has failed to retract his statements or issue an apology for his role in the media circus that has engulfed these young people speaks of the rot that has contaminated the UK body politic.
We should be deeply concerned about those who carelessly and irresponsibly spread lies and stoke hostility towards vulnerable newcomers in order to further their own political and economic ends.
The liars of Westminster and Fleet Street are causing far more damage to our society than the handful of Calais minors who have been thrust into the spotlight.
Ben is a barrister at 36 Bedford Row whose practice combines public and private law