Border Security, Asylum and Immigration Bill

Report (2nd Day)

Amendment 27

27: After Clause 36, insert the following new Clause— “Mandatory referral for age assessment in criminal proceedingsWhere an individual who claims to be under 18 is charged with an offence of illegal entry or facilitating illegal entry under immigration law, the Home Office must—(a) make an immediate mandatory referral to the relevant local authority for a comprehensive Merton-compliant age assessment, and(b) ensure that no prosecution proceeds until an assessment has been completed and the individual’s age is confirmed.”Member’s explanatory statement This amendment would ensure that individuals who may be children are required to have a comprehensive age assessment before any criminal proceedings for immigration offences can proceed, ensuring they are properly assessed and safeguarded in line with child protection principles.

My Lords, I apologise to the House for not being able to take part on this Bill at an earlier stage. The second amendment in this group, Amendment 57, in the name of the noble Baroness, Lady Lister of Burtersett, addresses the issue of age assessment of young asylum seekers who may or may not be under 18, and we continue to support these amendments. My Amendment 27 deals with a more specific part of the age-assessment process. It seeks to introduce an immediate mandatory referral for a Merton-compliant, social work-led age assessment before any criminal proceedings can be taken against the individual. I thank the Home Office for issuing its paper on abbreviated age assessments earlier in the year, which clarifies its position on this sensitive issue of issuing criminal proceedings against an asylum seeker who says they are under 18, but who officials believe to be over 18. From these Benches, while it is a helpful clarification, it does not change the core position that this amendment wishes to remedy.

At the heart of the government note is an abbreviated and expedited process now led by National Age Assessment Board—NAAB—social workers. We still argue that this process needs to be carried out by local authorities and not by NAAB, because NAAB is answerable to the Home Office and, of course, to its Ministers. Any age-assessment process must be independent of the Government and their staff, who have often already decided that the individual is probably over 18. I therefore have some questions for the Minister.

The considerably shorter abbreviated age-assessment process has turned the premise of how old an individual is into trying to determine that somebody could be under 18, as opposed to establishing their actual age under the Merton-compliant system; whereas the full assessment uses age ranges in much more depth. In January 2022, the Kent intake unit tried an abbreviated process with an investigation half way between a full age assessment and a brief inquiry, which was found to be unlawful in the courts. Can the Minister say how the abbreviated system will be different from the previous Kent intake unit case? Can the Minister also confirm that, if someone is in a hotel saying that they are a child, then they are potentially a child in need in that area, and therefore the local authority needs to respond, given that the case law makes it abundantly clear that it has to take a view that is independent from the Home Office? It would be a miscarriage of justice if the Home Office tells local authorities, who think they are children, that they are not children. That must remain the role of local authorities. Can the Minister confirm that local authorities will still play this key independent role?

My Lords, I speak to Amendment 57, in my name and those of other noble Lords, to whom I am grateful for their support. I am also grateful to the Refugee Migrant Children’s Consortium for all its help and to my noble friend Lady Longfield, who cannot be in her place but who has written to my noble friend the Minister in support of the amendment, drawing on her experience as a former Children’s Commissioner for England. I am grateful to my noble friend the Minister for finding the time the other week to discuss some of this with some of us. I should make clear my support for Amendment 27 and everything that has been said so far.

This amendment is focused on the age of assessment of children at the border. It would create safeguards for asylum-seeking children whose age is in dispute and would set limits on the use of scientific or technological age-estimation methods, which I believe the noble Baronesses, Lady Neuberger and Lady Hamwee, will cover. It would also provide for an annual report to Parliament.

To recap the case very briefly, as we have heard, the Home Office continues to assess incorrectly as adults a significant number of asylum-seeking children arriving in the UK based on a quick visual assessment of their appearance and demeanour. This has serious consequences—some have already been outlined—which include significant safeguarding risks when children are placed in accommodation with adults without appropriate safeguards, including the oversight of child protection professionals.

Concern has been expressed about this by the Children’s Commissioner, Ofsted, the British Association of Social Workers and, just last week, the Home Affairs Select Committee, which called it a “serious safeguarding issue”. Yet the Home Office appears to be more concerned about the potential risk of an adult masquerading as a child being housed with children even though child protection professionals will be present in those circumstances.

My Lords, I will not speak for very long on this, I hope. I also hope that the Minister does not feel that this is becoming a pattern—I am largely on the same side as him on this issue—and that I can bring a little bit of balance to the debate. Both noble Baronesses have mentioned the chief inspector. I looked carefully at his very balanced report. There are points on both sides. It is worth putting some of them on the record that the noble Baroness, Lady Lister, did not.

The chief inspector made the point that accurately assessing the age of young people is undoubtedly difficult. It has always been very difficult. It was difficult when I was the Immigration Minister between 2012 and 2014. The same debates that take place now took place then. It remains difficult. One of the reasons it is difficult is because there is an incentive in the system because, rightly, we treat children differently from and more generously than we treat adults. If you are not careful, adults game the system and say that they are children when they are not. That is a problem: first, because you are putting adults in an environment with children, which does present a child protection risk; and, secondly, it enables adults who have entered the country illegally and inappropriately to try to avoid the consequences of their actions. That brings the system into disrepute, which is not good for anyone.

The inspector makes the point that the Home Office gets some of its initial age decisions wrong and that it would be helpful if both sides accepted that. That is a point for the Minister to recognise: it is difficult and the Home Office does not always get it right. Importantly, he also said that the debate would be better if the Home Office and its critics could agree that some migrants lie about their age and that not to attempt to make some form of initial age assessment—which both noble Baronesses have criticised—risks incentivising more to do so. There is a balance to strike here.

Caution should be adopted when using technology—that is absolutely right. It is perfectly sensible if that is the spirit of the amendment, but having a bright-line rule in there that prevents technology becoming more important than it will be today, if it is proved to be very accurate, would be unwise. I know that the Minister and his colleagues are trialling this technology, and I look forward to seeing the results of that pilot they are running, with the cohort of children and adults that will be put through the system, to see how accurate that technology is in practice.

In conclusion, this is a difficult area. It is wise for the Home Office to accept that it sometimes makes mistakes, as the chief inspector has recommended, but critics of the Home Office ought to accept that this is a difficult area; even if the Home Office is doing everything it possibly can, mistakes will be made. But we must not design a system that sets up incentives for adults to wrongly claim that they are children in order to game and evade the system. If you do that, you will test the patience of the British people. The current position, as we have heard before in debates in the House, is that for unaccompanied asylum-seeking children, the British public have a lot of generosity; but if they feel that adults are using that generosity to game the system, that generosity will disappear, and everyone will rue the day if that is the case.

We should all listen to what the chief inspector said in his balanced conclusions and recognise the difficulties and that the Home Office makes mistakes, but also there are migrants who lie about their age to game the system. If everybody accepts both those points, I think, as the chief inspector says, we will have a better and more balanced debate to get to a strengthened asylum system that is fair not just to those claiming asylum but to the British people and their generosity.

I understand very well what the noble Lord, Lord Harper, is saying, but one of the problems, it seems to me, is the differing maturity of children in different parts of the world.

Several years ago, I went to the charity Safe Passage, which has a drop-in centre in north London. I met two Afghan boys who were both truly identified as 16; Safe Passage was absolutely satisfied they were 16, and they actually had some papers to prove it. One of them had a beard and the other had a moustache. Anybody who did not know about different maturity in different parts of the world would take it for granted that they were over 18. There is an added problem here: we need to recognise the differing maturity of children from different parts of the world.

My Lords, I support Amendment 57, to which I have added my name. I too thank the Refugee and Migrant Children’s Consortium for all the help that it has given us. I also support Amendment 27.

For very good reason, and not for the first time, Amendment 57 would introduce statutory safeguards for individuals whose age is disputed. To the noble Lord, Lord Harper, I say: we do not suggest that we should prohibit visual assessments at the border. What Amendment 57 would ensure is that those assessments comply with child protection principles, especially the benefit of the doubt standard established in case law and international guidance. This principle requires that where age is uncertain, the individual should be treated as a child unless there is compelling evidence to the contrary. That is the principle which I believe we should stick to.

The amendments align with recommendations by the Independent Chief Inspector of Borders and Immigration, as the noble Baroness, Lady Lister, has already said. Crucially, the amendment also addresses the Government’s proposal to use AI-based facial age estimation. I feel that I am a broken record on the subject of facial age estimation, and indeed on age estimation in general. We have had to contend with the proposal to use X-ray systems to determine age, and time after time we have argued that not only is it inaccurate—a point made clearly by the noble and learned Baroness, Lady Butler-Sloss—to use teeth or wrists for X-rays but it is unethical to expose people to unnecessary radiation and that X-rays should be used only for the benefit of the people concerned. We are delighted that the present Government are not proposing X-rays among their scientific methods, and we are also immensely grateful to the Minister for having conversations with us on this subject.

However, the AI systems suggested are not foolproof either. Indeed, independent evaluations show that these systems have error margins of between two and four years, as the noble Lord, Lord Harper, said, and they exhibit demographic bias, which is exactly what the noble and learned Baroness, Lady Butler-Sloss, has said—particularly, it turns out, for younger ages and minority ethnic groups. Academic research confirms that children’s faces are harder to assess accurately and that claims of near-perfect accuracy remain unverified. Overreliance on such technology risks replicating systematic errors rather than fixing them, so we will be replacing human error with machine error.

My Lords, I was too late to put my name down to the amendment from the noble Baroness, Lady Brinton. I am sure she will understand that the points that have been made on the second amendment in this group largely apply to hers as well.

The noble Lord, Lord Harper, tells us that adults game the system. I agree, but safeguarding applies both ways, both if someone is assessed as a child when he is an adult—it is usually a he—and if he is assessed as an adult when in fact he is a child. The question that we have is: where do you start from? How do you approach this: that claimants are fraudulent, or that claimants should be believed until the contrary is shown—the benefit of the doubt, as the noble Baroness, Lady Neuberger, has said? Where is the greatest danger? It will be obvious from my signature to the amendment from the noble Baroness, Lady Lister, where I believe it is.

I think, too—I will accuse myself of this; I do not want to accuse others of it—that there is a cultural bias. I say that even though I have a lot of Middle Eastern blood in me, so I should not be as biased as someone who is an ancient Briton, but I have detected it in myself.

I accept that this is a hugely difficult area and that technology is advancing almost as fast as we can draft amendments, which makes it all the more difficult. I am sure it has advanced a long way since the time I was stopped at the Gare du Nord because I seemed not to be the same as the person shown in the photograph in my passport because I was wearing earrings, which meant that the distance between my ears was not the real one.

I asked a couple of Questions for Written Answer recently. On the first one I got generalised assurance, so I asked some very specific questions, which inevitably got an Answer about the Home Office providing further updates regarding testing “in due course”. In a way, the thrust of my question today is to ask the Minister how and when Parliament is to be updated on what is going on—not just Parliament but all the stakeholders. It is not word I particularly like but it describes the variety of people concerned with this.

My Lords, the evidence coming out in our debate today is that there are a lot of examples where people are being wrongly assessed as adults. Last weekend, I met a group of local authority leaders who told me about a situation last November, regarding unaccompanied children who had been kept in hotels and were coming out into their care. I asked whether it had improved, and they said that the numbers may have changed but there were still examples of young people who had been taken out of the system because they had been wrongly assessed. The current system for determining the age of unaccompanied children seeking asylum remains deeply flawed. I think there are not many who would accept that it is all working really well.

We already have some indication that the cohort of people being sent back to France included a number of children, largely because they were inspected rapidly upon entry by Border Force officials. As we know from the noble and learned Baroness, Lady Butler-Sloss, appearance, demeanour and physical development are all affected by environment, life experiences and ethnicity, and making visual assessments is notoriously unreliable.

In answer to the point that there will be some people who will play the system, we need to understand that, when children are wrongly treated as adults, they are denied the rights and protections afforded them as children. That risks them being placed in adult accommodation, detained or even prosecuted. That is a clear safeguarding failure. Misidentification of children as adults poses a greater safeguarding risk than the reverse, primarily because adult systems lack the robust protections necessary for children. We have already seen cases where individuals who raised that their age was under 18 were subsequently arrested and charged in the adult criminal justice system, leading to time spent in adult prison on remand, or a conviction on immigration offences.

The stakes in this Bill are extremely high, with the new offences related to immigration crime contained within it carrying substantial periods of imprisonment, sometimes up to 14 years. It is critical that we safeguard against the unintended consequence of criminalising vulnerable individuals seeking protection.