Legal Update: Asylum age disputes cause harm

Each year, nearly a quarter of all unaccompanied children claiming asylum have their ages disputed. Ten years since the first court judgment outlined the criteria to follow when conducting age assessments, children are still being regularly disbelieved about how old they are and facing harmful, protracted disputes, during which they frequently do not receive the support and protection to which they are entitled. They might be denied access to education, and be placed in housing with adults, or with adults in immigration removal centres.

A significant number of young asylum seekers in the UK either do not have a birth certificate or passport, or have been given false documentation. The latter is especially prevalent in the case of trafficking victims, who are often told to inform the authorities that they are an adult, in order to avoid attracting attention. The question of age is crucial, as it will not only affect how they might be cared for by children’s services but it will also affect how their asylum or immigration application is processed.

Home Office policy is still to dispute the age of children who do not have evidence demonstrating their date of birth, unless their physical appearance or demeanour “very strongly suggests that they are significantly over 18 years of age”, in which case they will be treated as adults. A putative child can approach children’s services for support and the local authority must make their own assessment of age, before deciding whether they then might be a “child in need” under the Children Act 1989.

No statutory guidance
However, there is no statutory guidance or standardised training for local authorities on how to conduct age assessments and many still base their conclusions on appearance and a static notion of how a child should behave or appear.

As a result, age disputes have become increasingly contentious and often the only way of ensuring a child is provided with adequate support and protection is through a legal challenge and judicial review. In 2009, a Supreme Court case, R(A) v Croydon, held that, in the event of a challenge by judicial review, it falls to the court to determine how old a child is. The whole process can be very costly for local authorities, and deeply stressful for young people whose lives are left on hold as they wait for a decision.

Damaging impact
Coram Children’s Legal Centre’s report, Happy Birthday? Disputing the Age of Children in the Immigration System, published this month, highlights the damaging impact of the age dispute process on children and young people. It calls for a shift in the default position of the Home Office and local authorities, so that the age of a child would be disputed only when there is clear reason to doubt their account of how old they are or the evidence they provide. This would diminish the need for social workers’ age assessments and very costly legal disputes. Where an assessment is necessary, it should be conducted in a fair and lawful manner, with the views of independent professionals feeding into a holistic, multi-agency assessment process. Rather than litigation, an alternative, less distressing resolution process should be considered to reduce the contentiousness and costs of disputes and enable faster resolution. In addition, the Home Office, as a matter of urgency, must take further action to ensure that no unaccompanied child is placed in immigration detention. 

The vulnerabilities of young refugees and migrants can often be forgotten in the race to prioritise immigration control over individual rights. This is all the more the case for those whose ages are disputed, who are treated with suspicion and hostility. Some individuals may indeed lie about their age, but these exceptional cases should not shape the whole system and should not excuse a process that does not adequately consider the needs and rights of children within it.

More information on this issue go to www.childrenslegalcentre.com/Migrant+Childrens+Project or ring the Migrant Children’s Project advice line on 020 7636 8505

Legal Update is produced in association with experts at Coram Children’s Legal Centre

For free legal advice to frontline professionals on all child protection and safeguarding issues call 020 7636 1245

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