Justification Decision (Scientific Age Imaging) Regulations 2023 - Motion to Approve

– in the House of Lords am 6:04 pm ar 27 Tachwedd 2023.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Lord Sharpe of Epsom:

Moved by Lord Sharpe of Epsom

That the draft Regulations laid before the House on 13 September be approved.

Relevant document: 55th Report from the Secondary Legislation Scrutiny Committee, Session 2022-23 (special attention drawn to the instrument)

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

My Lords, I thank all noble Lords for attending this debate. The first of these instruments, the Justification Decision (Scientific Age Imaging) Regulations 2023, 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 second instrument, the Immigration (Age Assessments) Regulations 2023, has been laid by the Home Office to specify scientific methods of age assessment, namely analysis of X-ray and MRI images of certain body areas. By specifying scientific methods in this instrument, a decision-maker will be required to take into account a refusal to consent to the specified methods without good reason as damaging to an age-disputed person’s credibility.

On the use of X-rays, I remind noble Lords that the Ministry of Justice, as the justifying authority, has determined the practice justified under the Justification of Practices Involving Ionising Radiation Regulations 2004.

A regret amendment has been tabled by the noble Baroness, Lady Brinton, against both statutory instruments, and therefore the debates have been grouped. The Ministry of Justice has made the justification decision independently from the Home Office, as required by the 2004 regulations. I am sure noble Lords will understand that I cannot speak to this justification decision, as it is imperative that the justification authority is functionally separate from all other persons concerned with the promotion or utilisation of the practice. However, I can speak to the process the Ministry of Justice undertook to make this decision.

I turn first to that instrument. 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 this 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 practice was a new class or type of practice and that this can be justified, subject to the following conditions.

The first condition is that scientific age assessment involving ionising radiation is limited to radiography of the third molar and/or of the hand and wrist only. The use of computed tomography, or CT, scans for the purposes of assessing age is not permitted. The second is that the results of radiography of the third molar and/or of the hand and wrist must be used to assess only whether there is more support of the claimed age of the age-disputed person, or the age that assigned 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.

The Home Office has committed to ensuring that all exposures are appropriate under the relevant legislation. The Home Office is also committed to exploring the viability of non-ionising scientific methods of age assessment, with the aim of eliminating the use of ionising radiation in age assessments if and when the effectiveness of such alternative methods is validated. The justifying authority notes this commitment and encourages the Home Office to cease using X-rays when alternative methods are validated.

The Lord Chancellor wishes to thank the consultees for their detailed and wide-ranging contributions in helping him make his decision, and the Secondary Legislation Scrutiny Committee for its thorough scrutiny of this statutory instrument.

I turn now to the Home Office instrument—the Immigration (Age Assessments) Regulations 2023. These regulations are being introduced to improve our current age assessment process, which is under pressure from rising numbers of age disputes, and relate to the introduction of scientific methods of age assessment. Since 2017, there has been an upward trend in the number of unaccompanied children entering the UK. In 2019, 3,775 unaccompanied children applied for asylum. In 2022, this had risen by 39% to 5,242. There has also been a rise in the number of age disputes; between 2016 and June 2023, there were 11,275 age disputes raised and subsequently resolved following an age assessment, of which nearly half—49%, 5,551 assessments—found the individual to be an adult.

Age assessment is a complex and difficult task. Many unaccompanied young people claiming to be children arrive in the UK without official documentation. 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 an 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. Scientific age assessment will be one piece of evidence used alongside the existing Merton-compliant age assessment process, which is a holistic, social worker-led assessment. Importantly, the UK is one of very few European countries that does not currently employ scientific methods of age assessment. These regulations pave the way to the UK being more aligned with international practices.

This instrument specifies scientific methods for age assessment purposes, which are magnetic resonance imaging of the clavicle and the bones of the knee and radiographs of the lower wisdom teeth and the bones of the hand and wrist. These images will be used to assess the skeletal and dental development, or maturation, of the bones and teeth. These methods have been recommended by the Age Estimation Science Advisory Committee.

Once scientific methods have been specified, where 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 into account that refusal to consent as damaging the age-disputed person’s credibility. This is referred to as “negative inference”. The damage to credibility included in this instrument is only for the purpose of deciding whether to believe any statement they made that is relevant to the assessment of their age, not for deciding the person’s credibility in their wider immigration claim.

The Home Office considers negative inference appropriate and proportionate to deter individuals who deliberately misrepresent their age in order to game the system. A refusal to consent to a specified scientific method of age assessment without reasonable grounds would not automatically preclude the individual being considered a child. That refusal would still need to be taken into account alongside other relevant evidence as part of a comprehensive, holistic age-assessment process by social workers.

Noble Lords should also note that there has to be reasonable doubt about an individual’s age for them to go through the age-assessment process and be reassured that those who are clearly children will be identified at the initial age-determination process at the border.

I should note that the Supreme Court judgment in relation to the UK’s agreement on the relocation of individuals to Rwanda bears no impact on the Immigration (Age Assessments) Regulations. Protecting genuine children, preventing abuse of the immigration system by those who knowingly misrepresent their age and improving our asylum system overall remain a priority for the Government.

I look forward to hearing the views of this House on the instrument before us today. I commend both sets of draft regulations to the House. I beg to move.