Illegal Migration Bill

Report (3rd Day)

Clause 56: Decisions relating to a person’s age

Amendment 156

156: Clause 56, page 58, line 25, leave out subsection (2) Member's explanatory statement This amendment reinstates the right of appeal against age assessments in respect of putative children whom there is a duty to remove under the Bill.

My Lords, I rise to speak to Amendments 156A and 161. Due to a technicality, Amendments 156 and 157 were not formally withdrawn, but they will be withdrawn, so it is Amendment 156A which is under consideration. I note my interests as a trustee of Reset and with the RAMP project, as laid out in the register.

I thank the usual channels for changing business on Monday so that this item was first today rather than last on Monday. We noted previously that, both during the Nationality and Borders Bill and during this Bill, age assessments have been talked about at 2 am and just after midnight. I am truly grateful to the usual channels for hearing my plea about not being last on the agenda again.

I am grateful also to the noble Baronesses, Lady Lister, Lady Neuberger, Lady Brinton, and the noble Lord, Lord Coaker, for their support of these amendments. This is not the level of legislative scrutiny—which we should have in Committee—that we owe to children. There were some questions put in Committee to which we did not get full answers, and I hope the Minister might provide them today.

The Bill significantly restricts any legal avenues for challenging an incorrect age determination. The appeal mechanisms instituted by the Nationality and Borders Act, though they have not yet been implemented, will now be disapplied. Following government amendments at this late stage, judicial review will also be limited to such a narrow scope as to make it impossible for a potential child to challenge the assessment of their age based on evidential fact.

All the while, if the Home Office were to inaccurately assess a child to be an adult, the implications would be disastrous and irreversible. A child would face entering an adult system alone, where they would be detained with adults before potentially being removed to a third country with no safeguards in place, perhaps without ever encountering a child protection officer. This is simply absurd, but to remove all legal safeguards and weaken a putative child’s access to justice, when the implications are so grave, is as horrifying as it is immoral.

I have been saying—and I hope to reinforce this point—that I have one anxiety. As I understand the amendment, it confines the right of appeal to the grounds set out in Clause 56(5), which exclude an appeal on the basis that there has been a mistake of fact.

I was about to sit down, but I will note that. I beg to move.

My Lords, I have two amendments in this group, which very much follow the points raised by the right reverend Prelate.

As the noble Viscount, Lord Hailsham, has been pointing out, there is a problem about Clause 56(5), to which the right reverend Prelate’s amendment draws attention. As it stands, the subsection restricts the grounds of review to errors of law only. My Amendment 158A seeks to open up the scope for review, following up on a recommendation from the Constitution Committee which pointed out, as the right reverend Prelate has, that the opportunities for error on grounds of fact in this situation are very many. Indeed, the information on which the committee was proceeding was that usually it is on errors of fact that these decisions go wrong.

Amendment 158A rewrites subsection (5) to say that review is available when the decision was either

“wrong in law, or … proceeded on information about the person’s age which was incomplete, misleading or otherwise so seriously misinformed that no reasonable decision-maker would have relied on it”.

I think that the right reverend Prelate would welcome my amendment because it is trying to achieve what he is achieving. Like the noble Viscount, Lord Hailsham, I am worried that, if subsection (5) remains as it is, it will greatly restrict the opportunity for review on grounds of errors of fact.

Although I do not propose to put my amendment to a vote, can the Minister consider very carefully whether the grounds for review that I am suggesting are available? They come very close to what lawyers describe as “Wednesbury unreasonableness”. I do not know whether the Minister would accept that what I have in my formulation would be available as a ground of review that the decision was wrong in law anyway because it was so defective, but it is a very important qualification on the absolute precision which subsection (5), as it presently stands, lays down. Without elaborating further, I seek the Minister’s view on what I am proposing. It is important to know exactly to where the phrase “wrong in law” extends.

My Lords, I am grateful to the right reverend Prelate and the noble and learned Lord, Lord Hope of Craighead, for bringing back these amendments. I am also grateful to the Home Office for finally publishing its child rights impact assessment yesterday afternoon although, I must say, getting it has been like pulling teeth.

However, on age assessment and other children’s rights issues, it reads more like an attempt at post hoc justification than a serious analysis of the implications for children’s rights. The initial reaction from the children’s sector is damning. That it continues to use misleading statistics on age assessment that were challenged in Committee is disappointing, to put it mildly.

In Committee, I asked for an explanation of

“why the Government have ignored the very clear advice of their own advisory committee on the question of consent”,

raised by Amendment 161. The Minister’s response was:

“Of course we consider the advice”,—[Official Report, 12/6/23; cols. 1806-16.]

but the fact is that Clause 57 represents a rejection of that advice. Will the Minister explain why, having considered the expert advice, the Government then rejected it? In effect, their approach is that of guilty until proven innocent but, as we have heard, Clause 56 will make proving innocence—or, more accurately, that one is a child—much more difficult than now in what is increasingly a culture of disbelief.

The limitations on appeal and JR rights are, as the JCHR points out and despite what the CRIA says, clearly not in any child’s best interests. Likewise, the UN Committee on the Rights of the Child has expressed concern and recommended that age-disputed children should not be removed to a third country. I asked in Committee what the Government’s response is, but received no reply; nor was it explained what steps would be taken to ensure the following, in the words of the supplementary ECHR memorandum, echoed in the CRIA:

My Lords, I will speak briefly in support of Amendment 156A, although I regret the limited nature of the appeal contemplated by that amendment. I very much welcome Amendment 158A, in the name of the noble and learned Lord, Lord Hope.

As a matter of principle, I am very much in favour of giving individuals the right of appeal although, as I said when I intervened on the right reverend Prelate, I fear that his amendment provides for a more limited right of appeal than I would wish.

A decision on the age of an individual is critical in determining a person’s status under the legislation. I am concerned that, in many instances, the original decision about age will be made in a somewhat perfunctory manner. I imagine that immigration officers may get rather impatient and make rather perfunctory decisions. At the end of the day, age is a matter of evidence and I cannot find any persuasive reason why the original position on age should not be challenged. In my view, the right of appeal should extend to appeals based on the ground that the relevant authority had made a mistake of fact. That is what the noble and learned Lord seeks to achieve in Amendment 158A. However, if I have correctly understood the amendment and its relation to the Bill, the grounds of appeal are limited to those set out in Clause 56(5) of the Bill as it stands. The grounds specified there are essentially judicial review grounds—for example, that there was some procedural unfairness, or the ground of irrationality—and appeals based on fact are expressly excluded. I regard that exclusion as highly regrettable.

To meet some of the anxieties that I fear will be expressed by the Minister regarding my comments and the amendments, I make this point as well: the rights of appeal could be abused, and I would therefore like the burden of establishing the appeal to be on the appellant. It must be for them to satisfy the relevant appellate body that the grounds of appeal are made out. That may in fact be the existing law and practice—it has been such a long time since I practised in that field of law that I simply do not know. If it is not, it should be, and it would meet many of the anxieties likely to be expressed on the government Benches.

My Lords, I understand very well the child rights impact assessment on this issue. Naturally, the Government are concerned about people’s ability to pretend that they are under age when they are not, but that does not in fact deal with the underlying problem: there are a large number of children from countries outside Europe who mature much more quickly, certainly quicker than children in western Europe.

I remember going on a visit to Safe Passage, which was offering a drop-in centre for young men under 18. A number of those I met, and whom Safe Passage was absolutely satisfied were under 18, had beards or moustaches. If such person is interviewed by the Home Office, will it not immediately assume that a moustache or beard absolutely means that they are over 18? In the case of some of these young people, that will be incorrect.

I also remain very concerned about the issue raised by the noble and learned Lord, Lord Hope, in relation to Clause 5. If the issue is, as I suspect it will be, that they got it wrong, it is not necessarily—or probably not ever—an issue of law but a question of fairness. It is a question of dealing fairly and in the best interests of those who are genuinely under 18.

Reading through the child impact assessment, what depresses me is the suggestion regarding the extent to which the Government are following the principles of the Children Act—which every Government in my lifetime have followed—and looking out for the best interests of children. They are saying it again and again and, quite simply, doing the exact reverse. This is extraordinarily depressing.

My Lords, most of what I wished to say has been said by others. I pay tribute to my noble and learned friend Lady Butler-Sloss, the noble Viscount and my noble and learned friend Lord Hope for what they have said, and I support the amendment in the name of the right reverend Prelate the Bishop of Durham.

I will simply say this: it is a matter of fairness. In its scrutiny of the Bill, the Joint Committee on Human Rights remained unconvinced by this approach and believes that any penalisation for refusing to undergo some form of age assessment should be challengeable in the courts, which remains not the case at the moment. Removing a young person’s right of appeal against an age assessment which may have been carried out on appearance only, or by any other means, is, as my noble and learned Friend, Lady Butler-Sloss, said, cruel and demeaning.

It is all the more disgraceful if that young person has been tortured or abused and is terrified of being touched by strangers when there is a scientific assessment. It is all the more disturbing given that the so-called scientific methods for age assessment are widely questioned by the scientific community, especially those who have particular expertise, such as the Royal College of Paediatrics and Child Health. I chair two hospitals, as noted in my interests set out in the register. I have never met a doctor or any other health professional who supports these so-called scientific age assessment methods, yet I have met several asylum-seeking young people who have been tortured and abused and are terrified of being touched. If they refuse, they can be penalised and treated as adults. This is a matter of fact. Any young person should have the right of appeal.

My Lords, I note my interests in the register. I shall speak to the amendments in this group proposed by the right reverend Prelate the Bishop of Durham and the noble and learned Lord, Lord Hope, because I think they are a package, and we see them as being important together. I believe that age assessment is an art rather than a science, because it is absolutely the case that mistakes can be made and there is no absolutely right way of assessing the age of a person.

I recently had an experience like that of the noble and learned Baroness, Lady Butler-Sloss. As part of the Learn with the Lords programme, I was talking to group of sixth-formers in a school in England, and one of them had a beard. It was quite surprising but natural. We must not jump to the assumption that if someone has a beard, they are an adult. The rules of this sixth form are that they are allowed to grow their hair longer if they wish to.

I want to look at one area of this work which has not yet been probed by those who have spoken, which is the relationship with other European countries. The Minister repeatedly prays in aid the practice in some European countries, but the European Asylum Support Office, which provides formal guidance for member states of the European Union, has a different view from that which has been expressed by the Minister. Importantly, the safeguards in its guidance contrast with what is in this Bill and what we discovered last night in the child’s rights impact assessment.

Once again I say that the child’s rights impact assessment arrived at virtually the last moment when we are able to discuss anything which impacts unaccompanied children or children in general. It states that,

“until the Home Secretary determines the science and analysis is sufficient to support providing for an automatic assumption of adulthood, which would bring the UK closer to several European countries like Luxembourg and the Netherlands”.

The impact assessment published last night makes an unforgiveable error in saying on page 13 that

“the age assessment clauses aim … to … avoid the safeguarding issues which arise if an adult is wrongly accepted as a child and accommodated with younger children to whom they could present a risk”.