Draft Justification Decision (Scientific Age Imaging) Regulations 2023
(5 months, 3 weeks ago)
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The Committee divided: - Ayes: 9 / Noes: 1 - Question accordingly agreed to.
The Minister of State, Ministry of Justice (Edward Argar)
I beg to move,
That the Committee has considered the draft Justification Decision (Scientific Age Imaging) Regulations 2023.
It is a pleasure to serve under your chairmanship, Mr Gray. It is also a pleasure in my new brief, as Minister of State for Prisons, Parole and Probation, to be shadowed by the hon. Member for Brentford and Isleworth. We know each other well and, while I suspect there may be occasions in this room or beyond when we disagree, she knows that I have huge respect for her. I look forward to working with her in this role.
The draft statutory instrument sets out the affirmative decision made by the Lord Chancellor and Secretary of State for Justice on the Home Office’s application to use ionising radiation, also known as X-rays, as a scientific method of age assessment for age-disputed individuals subject to immigration control. The instrument is technical and legal, but none the less important.
Under the Justification of Practices Involving Ionising Radiation Regulations 2004, the Lord Chancellor has the powers as the nominated justifying authority to determine whether the individual or societal benefits of the practice outweigh the health detriments, and therefore whether it can be justified. Following a thorough statutory application, consultation and decision-making process, the justifying authority has determined that the Home Office’s proposed use of X-rays is justified.
If Parliament approves the draft instrument, the Government will bring it into force at the earliest possible date to allow the Home Office to use that justification in bringing forward its age-assessment policies. This SI legally formalises the decision by the justifying authority—the Secretary of State under the 2004 regulations—and sets out the parameters under which the approval is to be granted, which have been communicated to the Home Office.
I recognise that there has been a lively debate more broadly on age assessment, which the draft instrument relates to, but I am sure that hon. Members appreciate that I can speak only to this justification decision, as it is imperative that the justifying authority is functionally separate from other persons concerned with the promotion or utilisation of the practice. I will speak only to the use of X-rays as a scientific method of age assessment; any other method falls outside the scope of this statutory instrument.
I understand that the parallel debate on the Home Office’s statutory instrument on scientific age assessment under the Nationality and Borders Act 2022 is due to be held in another Delegated Legislation Committee this evening. That is the right forum for the Home Office to outline how it intends to use this technical approval to support its policies and to field any questions outside the scope of the draft instrument. It is for the other SI debate to consider the merits of the policy itself.
The justifying authority has determined that the proposed practice by the Home Office is justified. This draft instrument provides the legal basis for the use of that practice. The justification decision was made through thorough review of the proposed practice. It considered and weighed the individual and societal benefits, such as preventing children from being misidentified as adults and ensuring that individuals are treated appropriately within the immigration system, as well as addressing the financial costs to the state against the detriments of the practice.
In reaching a decision, the Ministry of Justice—as set out in the additional background document supplied to the Committee—stated that the justifying authority
“has determined that the proposed practice was a new class or type of practice and that this can be justified, subject to the following conditions:
Biological age assessment involving ionising radiation is limited to radiography of the third molar and/or of the hand/wrist only. The use of computed tomography for the purposes of assessing age is not permitted.
The results of radiography of the third molar and/or of the hand/wrist must only be used to assess whether there is more support of the claimed age of the age disputed person, or the assigned age social workers have assessed them to be following a Merton compliant age assessment. A likelihood ratio approach must be used to compare the weight of evidence.
In reaching this determination the JA”—
the Secretary of State—
“has taken into account the views of the JLG and the conclusions of its deliberations on this application. The Health & Safety Executive (NI), Office for Nuclear Regulation, Environmental Agency, Scottish Environmental Protection Agency, Natural Resources Wales and Department of the Environment for Northern Ireland have confirmed that this application falls outside of their regulatory interests.”
The UK Health Security Agency, the Health and Safety Executive, and the Food Standards Agency were also consulted, and they noted a number of points. Alongside that, of course, we consulted the Ministry of Justice’s own science department. The Lord Chancellor wishes to thank the consultees for their detailed and wide-ranging contributions in helping him make this technical legal decision. On that basis, I commend the draft instrument to the House.
Ruth Cadbury (Brentford and Isleworth) (Lab)
It is a pleasure to serve under you, Mr Gray, and to follow the right hon. Member for Charnwood. It is unusual for me, having only been in my post for two months, to not be the newbie in the room.
The change made by the draft statutory instrument allows the Government to seek to verify the age of unaccompanied asylum seeking children. It is more than 18 months since the legislative framework was set in the Nationality and Borders Act 2022 for these assessments to take place, yet we have still not had some rather straightforward questions answered. We have had, by my count, four different Home Secretaries since then, so it is strange that we have not had these answers. While I accept the limitations of our business here today, I cannot avoid the fact that several questions remain, among them the cost and impact to the NHS, which is already massively under pressure. We would expect the Government to address those questions in the impact assessment, but as far as I am aware no such assessment has been provided. Don’t worry, though, because the Government have said that
“the policy and design are still under development”.
They appear to be building the bridge as they cross it.
It is unclear to me, as it was to the Secondary Legislation Scrutiny Committee in the other place, why this instrument is being moved forward while the policy and process are still being developed. Looking at the SI, I was surprised to see that the Government do not know what the cost of the new imaging process will be. My hon. Friend the Member for Aberavon (Stephen Kinnock) asked the then Home Secretary, the right hon. and learned Member for Fareham (Suella Braverman), about it in December 2022, and she said she did not know. Does the Minister now have an estimate for the cost to the public purse of rolling out the policy?
In the submissions made to the Lords Committee, the lack of an assessment was a major issue for several stakeholders, some of whom the Minister has already named. That matters because of not only the costs, but the wider policy implications that the policy poses. The SI says the Secretary of State has a power to make regulations specifying a scientific method, but that is conditional on the Secretary of State having determined that the method is appropriate for assessing age after seeking scientific advice. The Minister will point to the Age Estimation Science Advisory Committee that has been set up, but beyond that, what steps have the Home Office taken to see the opinions and views of other stakeholders on this practice?
I have read the very real concerns that the Royal College of Paediatrics and Child Health has about the policy. The House of Lords Committee expressed palpable frustration about trying to get basic information about this case and the consultation between the Government and the wider medical community. These questions matter as there is by no means any evidence of a clear consensus among experts. In fact, a report in the New Scientist suggested that the widely held view among experts is that age verification is based on “pseudoscience”. The Government claim that 49% of asylum claims with a disputed age were found to be adults. Has the Home Office assessed how accurate this new method will be?
Additionally, what consultations were made with local authorities and medical authorities, both of which will be on the frontline of dealing with age assessments? I know from talking to the chief executive of my own local authority, Hounslow, the cost and difficulty of carrying out these age assessments, because it is the duty of local authorities to carry them out.
A range of expert bodies representing everything from social work to dentistry have warned that these medical procedures for non-therapeutic purposes are unethical. Even if we leave aside the questions of morals and ethics, we can all surely see that the full implementation of the changes foreseen by these regulations will likely face formidable barriers on an entirely practical level. What thought have the Government given to those barriers, and what steps does the Department plan to take by way of mitigation? Those are just two further questions to which I believe the Government have an absolute duty to provide clear answers. I am always open to the chance, however remote, that the Minister may surprise me and let me know what consideration the Home Office and the Ministry of Justice have given to those questions.
That brings me to the issue of the review mechanism. I can see that the Ministry of Justice will review the use of X-rays by the Home Office. Will the Minister be able to let us know what steps will be taken as part of this review mechanism? What information will be made public and when will the review take place?
I will finish more broadly, on a point about migration and the approach taken by the Government. Just last week, we saw their flagship policy on Rwanda rejected by the Supreme Court, despite years and years of claims—
The Chair
Order. I fear those matters are beyond the scope of the statutory instrument we are discussing today, so perhaps the hon. Lady might like to return to that.
Ruth Cadbury
Thank you, Mr Gray. That was one example of a scheme which the Government were warned would be costly and would not work. We fear that that will also be the case for this statutory instrument. From my own casework experience, I must confess that I am deeply sceptical about the Home Office’s claims about its ability to deliver its policies.
In summary, I hope that the Minister can enlighten us about the costs, the lack of an impact assessment, the review process, and the engagement that will take place with groups such as the Royal College of Paediatrics and Child Health especially, which has raised its own concerns about this policy. I hope that we can see some much-needed transparency on this issue.
The Chair
I call the hon. Member for Hemsworth to speak. [Interruption.] Perhaps I should call the Scottish National party spokesperson, the hon. Member for Glasgow South West, to speak first. I did not realise that he was planning to speak.
The Chair
I beg your pardon. It is also very kind of you to call me Sir James, but I am afraid that Mr Gray is all I get.
Chris Stephens
Thank you, Mr Gray. I have been bobbing, and I would have thought that a Glaswegian would have spotted a fellow Glaswegian. It is a pleasure to see you in the Chair.
As the Minister has outlined, this is perhaps a warm-up act for the Delegated Legislation Committee at 6 o’clock, which I will certainly attend. I will try to obey your earlier guidance, Mr Gray. I think it is sufficient to say that this decision is not without controversy. It has been criticised by a number of human rights groups. Their concern is particularly for people who have suffered incredible trauma. The Age Estimation Scientific Advisory Committee looked at this. Its evidence is worth noting and it is even included in the explanatory memorandum; I will certainly refer to points 7.5 and 7.8.
As I understand it, someone would have to consent to this particular test. Could the Minister tell me how the Government will take a view, if someone does not provide consent? We are being told by the Age Estimation Scientific Advisory Committee that there is no method, biological or social worker-led, which can protect age precision. It can only determine whether the age claimed is possible. That is what it says in the explanatory memorandum. It suggests to me that there is a lack of justification for putting forward this particular statutory instrument. As the shadow Minister, the hon. Member for Brentford and Isleworth, said, what is the cost? There will certainly be a cost to the reputation of the country if it goes through. The Royal College of Paediatrics and Child Health, which has been referred to, has said that
“x-ray imaging for a non-medical purpose is not ethical”.
Where does that leave the justification that the Department has come up with? It has also said that
“x-rays to determine age can be widely inaccurate”.
Does that not suggest that for someone who is going through a potentially life-changing decision like seeking sanctuary in the United Kingdom, having a test that is unethical, cannot predict properly and could be widely inaccurate surely cannot be justified? Is that not the case, Minister?
Jon Trickett
I will try to be reasonably brief, although I need to repeat some of the points that have been made. First, we are not dealing with a huge number of people—over six years, from 2016 to 2022, there were only 700 people a year who were said to be under the age they were claiming to be. Seven hundred a year—that is perhaps two a day. Most of those people have already been identified using other techniques. It is therefore hard to see what the Minister thinks will be added by doing this very unethical and slightly dangerous procedure. Will he tell us how many people he thinks are escaping scrutiny at present?
Secondly, Professor Andrew Rowland, the officer for child protection at the Royal College of Paediatrics, says that the evidence shows that using X-rays to determine age is “widely inaccurate”, and that the “practice is ultimately unethical”. He goes on to say that we will be exposing children to radiation.
There is, surprisingly—perhaps not surprisingly, given the nature of the British establishment—the Age Estimation Science Advisory Committee, presumably to provide advice to the Government. It talks about informed consent, which is my third point. How on earth can we explain to people, many of whom will be below the age of majority, and who may be frightened and may not have English as their mother tongue, in a way they can understand, the risks of radiation exposure engaged in the procedure—x-raying a single tooth—that they are about to undergo? It raises the question in my mind that informed consent, which is a basic requirement imposed on medics generally and on the health service, will be lacking in significant numbers of cases. That is why I am not convinced by the Minister’s arguments, and why I could not possibly vote for this measure, given the arguments he has made.
What are the Government doing? They are effectively taking the power to bully these people by saying, “If you don’t have this X-ray, there will be a presumption that somehow you are not under the age of consent.”
Dr Thérèse Coffey (Suffolk Coastal) (Con)
It is the Age Estimation Scientific Advisory Committee which recommended the use of MRI and X-ray methods. The hon. Gentleman refers to this procedure being a potential risk to somebody’s life—would he suggest to that same person that they never have an X-ray, ever? It feels as if we are stretching the argument that he is trying to put across.
Jon Trickett
I am complaining about the fact that this procedure will be done to children, who are not capable of giving informed consent, which is a basic principle of medical practice. That is my point. Here is the thing: there is no evidence whatsoever that these X-rays will demonstrate the age of the person—the victim. The scientists are not saying that to the Minister. If he can say otherwise, let him say so, but the people who are responsible for this and the advisory committee do not think the procedure produces sufficient evidence.
I will just make one further point. Where are the practitioners doing these x-rays coming from? According to the Royal College of Radiologists, there is a massive under- supply of clinical radiologists in our country. In fact, by 2027, we are going to need an additional 3,365 clinical radiologists. We are already massively under capacity. I can only imagine that this will mean diverting people from looking after the health of ourselves, our friends, our neighbours and our citizens in order to carry out a practice that is unethical, impractical and unscientific. Where will these radiologists come from, and how long will it take to examine each individual?
I will refer to the report that the Minister has referred to, which says:
“Biological age assessment involving ionising radiation is limited to radiography of the third molar”
and/or of the wrist. This is hardly a great operation, is it? The final sentence on page 6 says that the authority notes all this, and says that the applicant—that is, the Government—should
“cease using X-rays when alternative methods are validated.”
If the justifying authority has major reservations about the use of X-rays in this unethical and unscientific way, what are the Government doing to look into alternative examinations, which the JA is clearly proposing we should do?
Edward Argar
The vast majority of points made by the shadow Minister, the hon. Member for Brentford and Isleworth (Ruth Cadbury), and the hon. Member for Hemsworth (Jon Trickett) are outside the scope of this debate. This debate is not about the policy, the implementation or staffing of that policy, or otherwise. It is about a technical legal decision to allow the Home Office, in another Delegated Legislation Committee in just under an hour and a half’s time, to bring forward the actual policy proposals and put them before a Delegated Legislation Committee for debate. There is a very good reason for that: as I set out very clearly, under the Justification of Practices Involving Ionising Radiation Regulations 2004, the justifying authority is required to be functionally separate from any decisions made on how the policy will operate and the decision made on it. I appreciate the points made by both the shadow Minister, the hon. Member for Brentford and Isleworth, and the hon. Member for Hemsworth. They made their points well and I suspect that they are at least in scope of the debate because the Chair did not stop them. They are on the record.
Edward Argar
The point I would make in respect of the vast majority of cases, the justifying authority is looking to see whether, under those regulations, it is possible for the Home Office to proceed in this way. The hon. Member for Hemsworth quoted from page six of the report. I would also highlight another quote on page six:
“The decision to use X-ray imaging appears well considered and appropriate to minimise any individual’s radiation exposure.”
That is what the Secretary of State has been looking at in this context: whether the measure meets the threshold of those regulations for the Home Office as the applying authority to bring forward specific proposals, which it will do.
The shadow Minister, the hon. Member for Brentford and Isleworth, did make one point that is directly relevant to these regulations, which concerned how a review would work. As the justifying authority, we will undertake a review if, for example, new or important information is acquired about efficacy or consequences, other techniques or technologies that have the same objectives become available, or there are any obvious relevant changes in practice, science or technology. I should be explicit that the statutory instrument does not include a statutory review, but the Ministry of Justice as the justifying authority will continue to monitor and review the use of X-rays in this context as the shadow Minister would expect.
I suspect that the spokesman for the Scottish National party, the hon. Member for Glasgow South West, may reprise a number of the arguments and questions that he has just put to me to a Home Office Minister as the applying authority in another Committee in about an hour. There are a number of points to consider. On informed consent, that would again be a question for the Home Office as the authority wishing to carry out this policy. Similarly, on the question of a scientific method of age assessment, it is recognised in the documents that the Government have put forward that assessing an individual’s age is an incredibly complex task and there is no single methodology, scientific or otherwise, can determine a person’s age with absolute precision. However, as I set out earlier, this will be one consideration in weighing up the evidence based on either the individual’s declared age or a social worker’s assessment of it.
Chris Stephens
I assume that the Minister thought I was speaking to the statutory instrument—shock horror. A number of human rights groups have raised concerns. Has he, as the justifying authority, had a look at those? Obviously, there are clear concerns about human rights.
Edward Argar
I am grateful to the SNP spokesman for that. In considering this as the justifying authority, the Secretary of State has had due regard to those named consultees that, under the 2004 Regulations, he is obliged to consult on the justification decisions. It would be for the Home Office to set out what discussions it had had—I think it was either the hon. Member for Brentford and Isleworth or the hon. Member for Hemsworth who talked about local authorities, campaign groups and others—in how they designed that policy and what they proposed when they bring that forward. That would be a matter for Home Office Ministers. I am perhaps being less forthcoming than I normally would be—the hon. Member for Glasgow South West has opposed me in Committee before—because I am deliberately drawing that distinction between the justifying authority, which is functionally separate in looking at what it actually has to look at as the MOJ, from the Home Office as the Department that has to introduce the specific regulations on how this policy would work. On that basis, I commend this decision and this statutory instrument to the Committee.
Question put,
Draft Immigration (Age Assessments) Regulations 2023
(5 months, 3 weeks ago)
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The Committee divided: - Ayes: 9 / Noes: 1 - Question accordingly agreed to.
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—
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.
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.
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—
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.
Stephen Kinnock (Aberavon) (Lab)
It is a pleasure to serve under your chairship, Mr Hosie. The Government’s plans to use scientific methods in verifying the age of unaccompanied asylum-seeking children have been long in the making, but we would not necessarily know it from the somewhat sketchy evidence around the SI or the rather flimsy documents published alongside it.
The legislative framework for such assessments was set by the Nationality and Borders Act 2022, which has been on the statute books for more than 18 months. Yet the Government have still not managed to answer some of the most basic questions that these proposals raise, in particular how much they will cost and what their impact will be on our health services, at a time when our NHS is under unprecedented strain.
These are questions that any reasonable Member would expect the Government to address in their impact assessment. However, no such assessment has been provided, on the basis that, in the Government’s words:
“the policy and design are still under development.”
I note that the explanatory memorandum commits to preparing a full impact assessment as implementation of the policy moves forward. If the Minister could commit to a timely publication of such an assessment, I am sure that Members from all parties would be very grateful.
It is also unclear to me, as it was to the Secondary Legislation Scrutiny Committee, why the Government should feel the need to move forward with legislation that is still in the process of being developed. We would be very grateful if the Minister could shed some light on that question posed by the Secondary Legislation Scrutiny Committee.
We also find that House of Lords Committee expressing palpable frustration at the repeated running-up against a brick wall of any reasonable requests to Ministers for basic information, in this case about the extent of any further consultation between Ministers and experts from the medical and wider scientific communities beyond the members of the Government’s hand-picked Age Estimation Science Advisory Committee, to which the Minister referred. More importantly, what specific feedback have Ministers received from experts beyond the members of that committee in the course of any consultations that have taken place?
These questions really matter, because there is clearly no evidence of consensus among experts in support of the Government’s plans—far from it, in fact. From a report in a recent edition of the New Scientist, it is clear that a widely shared view among experts is that what the Government describe as scientific age verification is based largely on what those experts describe as pseudo-science. Based on their public statements, a range of expert bodies, representing such diverse fields as social work, paediatrics, dentistry and radiology, also seem to be proactively urging their members to play no part in such practices.
Therefore, my final question to the Minister is this: what thought have the Government given to how they might be able to implement the measures that he has set out today if professionals in the sector are not willing to operationalise them? My question specifically is this: do the Government have a plan B in the event that the key practitioners are not prepared to operationalise the measures that have been set out today?
Paul Blomfield
My hon. Friend raises some important questions, as others have, and he will know the concerns that we raised when the Nationality and Borders Act was in Committee. Clearly, we are in a situation where the actual implementation of these measures will fall to a future Labour Government, so I wonder whether he could confirm something. If it is our experience in Government that these measures do not add value and do not assist the process, will we review and scrap them?
Stephen Kinnock
We will certainly keep these measures under review, as would be the duty of any sensible Government. Policy making should be based on evidence, on facts and on the law, and Labour Members remain absolutely committed to those basic principles. If our review concludes that they are working, effective and accurate, then we would look to retain them. However, if such a review concluded that they were counterproductive, ineffective or damaging, particularly around safeguarding and so on, then—of course—we believe in evidence-based policy and that is a very important principle for any Government to pursue.
With that response to my hon. Friend, I conclude my remarks. I thank the Minister for his attention and look forward to hearing his response.
Chris Stephens
It is a pleasure to see you in the Chair, Mr Hosie.
This Committee is the main course, but I was part of the Committee earlier today that considered the statutory instrument from the Ministry of Justice, which seems to justify whether this change can go ahead. As I say, we are now at the main course and debating whether it should go ahead or not.
I was surprised by the Minister’s answer to me earlier and that he is not aware of any instances of people seeking sanctuary or asylum in the country who claim that they are adults when, in reality, they are children. I have examples from my constituency where that is the case, and I thank Aberlour and other organisations that look after asylum seekers in my constituency for raising these matters and for looking after those individuals. All the asylum charities in Glasgow South West and the great city of Glasgow should be commended for their work in this area.
This is not the mundane statutory instrument that people might think it would be, for the simple reason that this issue is not without controversy, and human rights groups have raised their concerns and condemned the regulations. I wonder whether the Minister can tell us what responses have been given to the human rights groups that have concerns about the Government’s direction in this area, because we need to give regard to the fact that we are dealing with people who have suffered incredible trauma in getting here and in their experiences where they have come from. I know from my case load that some of them are victims of sexual violence, for example. There is a former Immigration Minister on the Government side, and he will be aware that my office and the Home Office are in regular contact every week to discuss the many cases that we have, given that Glasgow is an asylum dispersal area.
I believe that using MRI and X-rays in this area is beyond cruel, and experts are saying that this measure is unethical and will be inaccurate and potentially harmful. I note that the Scottish Government have opposed it, as have human rights groups. One of the reasons is that it risks the rights of children who have already been through unimaginable hardship. For me, it is a question of values. There are also ramifications if one does not participate in the process. The Minister was very candid when he said that if someone does not participate in the process “without reasonable grounds”, it would be damaging to their case. If I understood him correctly, I take that to mean that if someone refuses to participate in the process, they might not receive a positive decision on their asylum claim. There are reasons why people may well refuse to participate, and it may simply come down to a language barrier, for example. As I will come on to, it might be because these particular tests are not even accurate and the science does not support this statutory instrument.
Kevin Foster
I recall our many conversations in my previous role about his casework, and the hon. Gentleman is a doughty fighter in this area. If what he says about the process is correct, why do so many countries in Europe use such measures?
Chris Stephens
I notice that that has been said, but not one country in Europe was actually named. It will be interesting to see whether the Minister mentions countries in Europe, because I find it curious that this approach is said to be standard in Europe, but not one country was named. I am looking forward to the answer, and I am sure it is being handed to the Minister right now on the little green Post-it note he has in front of him—yes, I am observant.
Paul Blomfield
I am sure that, like me, the hon. Gentleman is amused by the Government’s reliance on other European countries as a benchmark for good practice. Does he recognise that although many other European countries have the legal capacity to use biological tests, many of them have found that such tests have not worked and have not added value, and they are therefore discontinuing them?
Chris Stephens
That is a very interesting intervention from the hon. Gentleman, who does a lot of work in this area. As he mentioned, he was involved in the Nationality and Borders Bill, and I will come to some of the experts’ concerns. I believe the policy should be evidence-based. Unlike some Cabinet Ministers, I think that we should listen to experts on such issues. The Government’s approach opposes the principles of informed consent and some of the recommendations set out by the body that was commissioned to look at this policy, as was mentioned earlier. It seeks to ignore some damning comments from the Royal College of Paediatrics and Child Health, which says that
“informed consent it fundamental to all medical practice, and by definition must be free from duress.”
If you have a system in which you say to someone that they must participate in a test and that, if they do not, it will damage the claim, I suggest that that person is participating under duress.
Further to that, the Royal College of Paediatrics and Child Health says that
“x-ray imaging for a non-medical purpose is not ethical”,
and that
“x-rays to determine age can be widely inaccurate”.
The Age Estimation Scientific Advisory Committee have said:
“There is no method, biological or social worker-led, that can predict age with precision”.
It can only estimate whether an age is possible. It can only tell you whether an age is possible, and it cannot be precise. We will therefore get into all sorts of difficulties if the Government go ahead with this. Many children have faced significant trauma in their journey to the UK; they should be met with compassion and care, not unnecessary medical procedures. The question of what the cost is has been raised with the Government. That is an excellent question, but I would also ask what the cost is to the UK’ s reputation if it goes ahead with these tests.
Paul Blomfield
I want to follow up my earlier questions with a few comments. I think that the Minister failed, as indeed the Government did when the Nationality and Borders Act was in Committee, to explain in detail—I hope that he will have another go in his concluding remarks—why the Merton process is failing. He talked about other European countries, and many see that as the gold standard in an effective system of evaluating age.
There was, in Committee, a real concern about the Government’s intention, at that stage, to scrap the Merton process and rely wholly on biological tests, so I welcome the fact that the Minister has confirmed that the Government are planning to run the two systems concurrently, as well as his assurance that, where there is a variance between biological tests and the Merton assessment, the decision will remain with the decision maker and there will not be any crude dependence on the biological tests. I do not think that he has been able to convince us that there is accuracy, to the point that is needed, within the biological test. The Government’s own committee says that it will provide an age range, rather than a specific age. I realise that the hon. Member for South Ribble was trying to be helpful by talking about the value of bone testing in archaeology, but when we are dating dinosaurs, we do not do it to the precise year, and, in this context, we are talking about a requirement to get a precise age. I hope that he will have another shot at explaining the scientific evidence for the reliability of biological testing.
I will press a little bit further on the question of consent, because there are real issues of concern there. The Minister will know that section 52(7) of the Nationality and Borders Act 2022 places a duty on a decision maker to make a negative credibility finding when a person does not consent to the use of biological methods, and that section 58(2) of the Illegal Migration Act 2023 allows for an automatic assumption of adulthood if the person refuses to consent.
The consequences are serious. Many children could be wrongly declared to be adults, contrary to the advice given by the Home Office’s own advisory committee, leaving them to face the prospect of deportation or—the Minister described the problem graphically—being placed wrongly in an adult setting, which raises serious safeguarding issues. The Minister has not yet adequately explained to us how the Government propose to deal with the child’s capacity to understand and agree to a medical method of assessing their age, or exactly what will happen when a child does not have that capacity. If a child seeking asylum is not looked after, has no legal guardian and does not have the capacity to consent, I hope that the Minister will explain in his concluding remarks who would be able to consent on their behalf. Also, how will that stand up in law?
Additionally, for consent to be valid, it must not be given under duress. That point was made by the Minister’s own advisory committee in its recommendation that there should be, because of—
The Chair
Order. I will suspend the Committee to allow for Divisions: 15 minutes for one Division and another 10 minutes for a subsequent one, so we will be back at 6.50 pm or 7 pm.
Paul Blomfield
When we were interrupted, I was talking about how important it is that if consent is to be considered valid, it should not be given under duress. What could cause more duress than being told, “If you don’t consent, you’re going to be deported”, which is what the powers under the Act imply? That is probably why the Age Estimation Science Advisory Committee, which the Minister has spent so much time assuring us that he has turned to for guidance, says in its recommendations that
“no automatic assumptions or consequences should result from refusal to consent.”
I am interested to hear from the Minister how that relates to the consequences provided for in the Act. The position that the committee took is consistent with that of the Royal College of Paediatrics and Child Health, which stated that
“informed consent is fundamental to all medical practice, and by definition must be free from duress.”
There are wider ethical concerns, as has been mentioned. Leading medical bodies have expressed concern about using medical methods for examinations that are not medically necessary. That is not a superfluous concern. The methods proposed will expose children to the potentially harmful risks associated with exposure to radiation. The British Medical Association states that the
“use of such methods in a non-clinical context involves direct harms without any medical benefit”.
The British Dental Association has also voiced its opposition to the use of dental X-rays, saying that they are both “inaccurate” and “unethical”.
There are things that could be done to improve the system. The Minister touched on them but did not follow through on the problems with age assessments at the port of entry. There have been lots of problems with inaccurate age assessments conducted by Border Force officials at the point of entry. The Government do not publish data on the number of children who are incorrectly treated as adults by the officials and subsequently taken into care when referred to a local authority, which has significant consequences. I wish that the Government would look more at the better processes at that point that could make a difference in improving the procedures.
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.
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.