Provisions to treat unaccompanied asylum seekers as adults if they refuse scientific age assessments to be scrapped
Provisions that would see unaccompanied asylum seekers treated as adults if they refused a scientific age assessment without “reasonable grounds” are set to be scrapped by Government.
The Border Security, Asylum and Immigration Bill, published on 30 Jan, also includes the removal of powers that allowed for the indefinite detention of children, and the practice of the Home Office directly accommodating unaccompanied children upon arrival in the UK.
The measures were included in the Conservative Government’s Illegal Migration Act 2023, but had not yet been implemented.
Coram Children’s Legal Centre observed that powers to directly accommodate unaccompanied children when they arrived in the UK without family “undermined” the Children Act 1989.
It said: “The Home Office usurping these powers was especially controversial after the national scandal of hundreds of lone children going missing from seven Home Office-run hotels. Some of the children have never been found.”
In June last year, the High Court issued its final ruling in a long-running case brought by charity ECPAT UK against Kent County Council and the Home Office concerning unaccompanied asylum-seeking (UAS) children entering the UK in Kent on small boats.
In R (ECPAT UK) v Kent CC, SSHD [2024] EWHC 1353 (Admin), Mr Justice Chamberlain made clear that Kent County Council cannot depart from its duties under the Children Act 1989 and that non-compliance with the s.20 CA duty is “not justified or excused by resource constraints of any kind”.
The council had previously eased pressure on its care services through a deal with the Home Office that capped the number of UAS children the council would take - dubbed ‘the Kent Protocol’.
But in a High Court ruling on 27 July 2023, Mr Justice Chamberlain found the practice to be unlawful.
The High Court further ruled that the Home Office’s policy of placing UAS children in hotels was unlawful when it became “systematic and routine”.
Welcoming the proposed repeals introduced as part of the Border Security, Asylum and Immigration Bill, including the repeal of key sections of the Illegal Migration Act 2023, ECPAT UK said: “These measures posed a grave risk to the safety and welfare of some of the most vulnerable children in our society, leading to hundreds of children going missing, with 90 still unaccounted for as of 30 October 2024.
“Through our legal challenge, ECPAT UK ended this practice and highlighted the unlawful actions of the Home Office and Kent County Council in failing to uphold their statutory duty to take unaccompanied children into care, reinforcing the vital role of local authorities, irrespective of their immigration status.”
It added: “Additionally, the repeal of the age assessment provisions in the Illegal Migration Act 2023 is encouraging and we strongly urge the Government to take further steps to repeal those currently in force from the Nationality and Borders Act 2022, which erode the rights of children and young people and must be dismantled to ensure full protection under UK law.”
Under the Nationality and Borders Act 2022, the government can specify scientific checks that may be used as part of age assessments, including X-rays and MRI scans.
Under the 2022 Act, a decision maker would be able to make a negative conclusion about an individual’s credibility from a refusal to comply with a request to undergo a scientific age assessment, without “reasonable grounds”. This provision is currently in force.
The 2023 Illegal Migration Act went further by allowing the government to instruct that such a refusal by an unaccompanied person who was in the UK illegally (under the terms of the legislation) would lead to them being treated as an adult (section 58).
However, the new Bill proposes to repeal this power.
Debating the Bill in Parliament yesterday (10 February), Shadow Minister (Foreign, Commonwealth and Development Office) Wendy Morton said: “What I see in front of me in this Bill amounts to sheer madness. It means that asylum seekers can refuse to take a scientific age assessment and consequently no longer be treated as over 18. How on earth do the Government plan to identify adults pretending to be children if they legislate to allow them not to have to take a scientific age assessment? That surely acts as a further tool in the armoury of the people smugglers, who I am sure are already poring over this legislation and identifying the loopholes.”
The Home Office has been approached for comment.
Lottie Winson
