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Baroness Gardner of Parkes: The presentation of the amendment has been confused and, as I listened, I became more and more amazed. The noble Baroness, Lady Hilton, introduced it clearly and I understood what she said. When the noble Lord, Lord Renton, said that he felt it was wrong to place the onus of proof on the Secretary of State, again I fully understood. Then the noble Baroness, Lady David, said how well the Home Office treats children now and how splendid it all is; and it sounded as though there was not much of a problem. The noble Lord, Lord Hylton, said that there are so few children that it is no problem. That may be true now, but if we create a large loophole plenty more children will come on that basis. That is what we must avoid.

It is easy to put one's age up or down. Some years ago I gave advice to a woman who wished to enter the other place that it was best to lower her age. She did just that and, sure enough, she was selected and elected. Her age was dropped 10 years. Age is tricky.

The noble Lord, Lord Hylton, said that we should give the benefit of the doubt--I am not sure that he used that phrase--to someone who might be an adult but could possibly be a child. That definition is unclear and would cause me concern. People have said in one breath that to obtain a passport one must say that one is over 18 and in the next breath that the Home Office is unreasonable when it examines a passport showing someone to be 18 and takes it that that person is 18. It has been suggested that we should place on the Secretary of State the obligation to prove that the person is not 18 when he or she is clutching a passport stating that that person is 18. The amendment is wrong. I oppose it.

Lord Winston: With respect, surely that is going too far. We do not seriously expect floods of children to enter the country as a result of the legislation and it is wrong to suggest that. I support the noble Lord, Lord Hylton. I see adult patients from all over the world,

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and with patients from Africa and Asia it is common to find that they do not know when their birthday is. It is a major problem.

With regard to radiography, bone ageing and epiphyseal fusing, which is how the determination of age is carried out, I can say categorically that it is not a good idea to apply a rather invasive medical procedure, which might carry an admittedly slight risk of leukaemia, simply to establish status. That would be a poor principle.

However, there is a bigger problem with regard to the burden of proof of age. We shall see children occasionally entering the country who come from situations where they are refugees and are probably quite poorly nourished. Because of poor nourishment, people's ages may be difficult to determine. Surely, the answer is to be reasonably humane and try to be sensible about the legislation. Unless it becomes a huge problem, with a massive influx--which is unlikely--we should accept that there may have to be vagueness by its nature in determining the age of what appears to be a child. We would have to accept that as a matter of humanity and simple justice.

Earl Russell: I do not believe that the noble Baroness, Lady Gardner, has taken on board the difficulty of determining age without records. In early 16th century England, when people took over their land on coming of age, in many cases the witness says that he was born "in the year in which I broke my leg playing football". The trouble is that he does not remember which year that was. One must be realistic about the degree of certainty which can be expected. When the consequences of being disbelieved may be as great as life itself, the burden of proof must be in favour of the applicant. That is the heart of our case.

Lord Dubs: I support the two amendments because one basic principle is at stake. It is that the interests of the child should come first. That is the policy of the United Nations High Commissioner for Refugees and, I understand, of UNICEF.

In my experience when I was director of the Refugee Council, we looked after and I personally met many unaccompanied refugee children or unaccompanied asylum seeking children. One of their characteristics is that they are more traumatised than any other asylum seekers. They are more traumatised because of their youth and often because of the painful and difficult circumstances under which they managed to leave the country where they were in danger. They may also have been traumatised because their parents were dead or had disappeared. Alternatively, they may have been sent to safety by their parents because the parents feared that the children might be conscripted into an army at the age of 13 or 14 and would almost certainly face death. That separation from their parents would have traumatised the children. Young people who have suffered in that way find it harder to speak for themselves. They find it harder than any other asylum seekers to explain what has happened to them and to put up a good case.

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The procedures that we apply are particularly thorough. They give the child and his representatives every opportunity to get to the truth of the child's background so that the case can be properly and fairly put.

I do not believe that any government would wish to remove a child from this country to circumstances other than those in the best interests of the child. That requires a thorough and painstaking assessment. I believe that the two amendments go some way towards protecting those interests. I hope that the Government will accept these amendments, or some similar proposals.

Baroness Rawlings: With respect to the noble Baroness, Lady Hilton of Eggardon, I agree that children should be treated with great consideration. Under our Immigration Rules unaccompanied children must receive priority. I am sure that any child who has real cause will be admitted. I do not refer now to the debate as regards age. I refer to Amendment No. 45. Surely the reason that we should reject the amendment is that it leaves a loophole. I am not referring to any bona fide child who comes in. It allows for the possibility--which is not infrequent--of children being used by third parties to allow in subsequent members of their family. This is a serious loophole. I am sure, I repeat, that we would never wish to stop any bona fide children from coming into this country; they would not be stopped from doing so.

Baroness Blatch: This is an important and sensitive issue, and one which concerns us all. I hope that I shall be able to allay the fears of noble Lords about the way in which children who are asylum seekers are handled. I share in all the points raised by the noble Lord, Lord Dubs, but the real concern is how those cases are handled and managed in this country as part of the system.

Our proposals to extend the accelerated appeal procedure do not change the special arrangements for considering asylum applications from unaccompanied children. Their cases will continue to be given special priority and care, and will, as now, be considered by specially trained caseworkers. The Immigration Rules state that a child will not be interviewed about the substance of his asylum claim if it is possible to obtain sufficient information from other sources. Where it is necessary to interview a child, that is done in the presence of an independent adult. Unaccompanied children, therefore, are not included in the Home Office short procedure which is based around an early asylum interview to obtain the basis of the claim.

They will also continue to have the services of the Panel of Advisers for unaccompanied children to help them in their dealings with the Home Office and other government agencies.

There is no conflict between our careful approach to applications from unaccompanied children and the proposals to extend the special appeals procedures. Applying the accelerated appeals procedures to children is consistent with the UNHCR guidelines which emphasise the need for speedy determination of their status. Indeed, it is for this reason that appeals made by

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unaccompanied children already receive priority listing by the Lord Chancellor's Department. If a child has no claim to refugee status, speedy return to his family in their country of origin can only be beneficial. Clause 1 would assist in this process.

The Government recognise that applications from unaccompanied children raise sensitive issues and for this reason we do not propose to certify particularly complex or compassionate cases. Each case would be considered on its merits. We would take into account the child's particular circumstances. We would take account of his ability to understand his situation and to take responsibility for his actions. It would not be reasonable, for example, to expect a young child to know whether the passport he had been given was valid. But the same might not be true in the case of a young person of 17. It is right that the Secretary of State should make these judgments on the merits of the individual case.

I should like to turn to the second limb of Amendment No. 30 which deals with disputes over the age of an applicant. The Immigration Rules define an asylum-seeking child as,


    "a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age".
Where a young person holds a valid passport showing him to be over 18 the onus is quite rightly on him to show that the age in his passport is incorrect. Where an applicant has no documents, the Immigration Service, with the assistance of the port medical officer as appropriate, will make a judgment on the applicant's age. Amendment No. 30 would reverse the current position and require the Secretary of State to demonstrate that a claimed age for which there was no evidence was incorrect.

My noble friend Lord Renton made an important point. These amendments are not just about age disputes. I agree with him when he asks how age can be determined without the relevant information. The important point is as regards the people who have the information. But if the benefit of the doubt is automatically conceded to the child, that creates a loophole. It was referred to by my noble friends Lady Gardner of Parkes and Lady Rawlings.

It cannot be right to allow a person to make an unsubstantiated claim to be a child in order to circumvent normal immigration controls. If there is a dispute over the age of an asylum seeker, it is open to him to provide documentary or medical evidence to support his claim. Where that evidence is satisfactory we will accept the applicant as a minor, as we have done in a number of cases. But it is entirely right that the burden of proof should remain with the applicant.


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