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Lord Renton: My Lords, Amendment No. 61 seems to contain an accurate statement of the obvious. But whether we need to make that part of the law, I doubt. It is a statement of the obvious because we all know that travel documents are not conclusive as to age. They can be forged; or they can be the result of innocent misrepresentation. It is perfectly right that there should be no assumption about age just because it is stated in a travel document. It may provide prima facie evidence, but that is not the end of the matter.
I am not sure, and my noble friend Lady Blatch will tell us, whether or not the amendment is necessary. Even if the point is not covered in law at present, I am doubtful as to whether this is the sort of detail we need to go into. I personally think it is better to try to state principles instead of covering endless hypothetical cases. That is the doubt I have about Amendment No. 61, although it appears to be accurate in what it says.
As regards Amendment No. 62, there is a difficulty. Nature is notoriously inconsistent; and medical opinions vary very much in relation to the same circumstances. I am told that experience has shown that there is very often a margin of error of as much as two years between the reality of a situation and the medical opinion given. Doctors are just as likely to disagree as lawyers are. I happen to be the son of a doctor, and the noble and learned Lord, Lord Brightman, and I are lawyers. It is quite right that we should make that plain. By all means let there be some paediatricians available. But whether the opinion of one paediatrician should be final, I seriously doubt. In cases like this, very often it would be better to obtain a second or even a third opinion. This is another matter of administration which is best left to the Government.
Baroness Gardner of Parkes: My Lords, in Committee I spoke on points similar to those mentioned by the right reverend Prelate. We discussed them in considerable detail. I think we were all agreed that X-rays were not a desirable method of assessment.
I support the point made by the noble Lord, Lord Renton, in relation to Amendment No. 62. It is impossible for any one paediatrician to make a decision. I remember years ago going with my daughter to the hospital. We were rather concerned about her because she had not been well. The man weighed her and said, "You are absolutely perfectly proportioned in height and weight for the age of 10". She said, "But I am 12". The person she saw was an expert paediatrician at the children's hospital. So it is impossible to take the opinion of one paediatrician as completely binding. It is desirable, if there is a real doubt, that someone should check on those points.
Turning to Amendment No. 61, I find it very difficult to reconcile the point made in Committee by the noble Lord, Lord Dubs, and today by the noble and learned Lord, Lord Brightman, in relation to the fact that people quote their age as 18 in order to obtain a travel document. The noble and learned Lord went on to quote cases in which someone came into the country supposedly aged 29 and was then found to be 15; someone else came in supposedly aged 23 and might have been 16. Quoting your age as 29 or 23 is not the same as simply quoting it as 18 in order to obtain a travel document. I found that point somewhat hard to appreciate.
Baroness Blatch: My Lords, Amendments Nos. 61 and 62 deal with disputes about the age of an asylum applicant. Clearly, cases where there is a dispute over the age of an applicant do not involve young children. The dispute centres on whether or not a young person is under 18 and we are therefore talking about older teenagers and young people. The Immigration Rules clearly define an asylum seeking child as,
As I explained in Committee, where satisfactory evidence of age is provided we will accept an applicant as a minor. My noble friend Lord Renton said on that occasion that the burden of proof must lie on whoever has or is most likely to have the necessary information as to the applicant's age. That proof could take the form of documentary evidence such as a bona fide birth certificate which the child or his carers may be able to obtain but which the Secretary of State clearly cannot. I entirely agree with my noble friend.
A young person seeking to obtain the required evidence will not be without assistance at that stage. Apart from the advice of a legal representative, the applicant may have the support of social services and the Refugee Council's panel of advisers. The Immigration Service has agreed with the panel of advisers that it will refer young people who have been detained where there is a dispute over their age.
It is for the young person and his legal representatives to decide what evidence should be put forward. If they are unable to obtain reliable documentary proof, they may choose to commission an independent age assessment. However, I understand that no medical assessment of this kind can be very precise. That point was made by my noble friends Lady Gardner of Parkes and Lord Renton. The margin of error is around two years either side of the assessed age. For this reason it would be unlikely to carry as much weight as any validly issued documentary evidence. Nevertheless, it is for the applicant to decide whether he wishes to obtain a medical assessment and, if so, from whom. It would not be appropriate for the Secretary of State to require him or her to submit to an examination for reasons which are wholly unrelated to health or medical needs. Nor would it be right to restrict his choice of medical adviser.
Moreover, placing such emphasis on medical assessments, which, as I have said, cannot usually be very precise, could encourage more applicants to attempt to deceive the United Kingdom authorities about their age to take advantage of our generous approach to unaccompanied child asylum seekers. To put this in perspective, in 1995 8 per cent. of asylum seekers were aged between 18 and 20 and a further 19 per cent. were aged between 21 and 24. It is clear, therefore, that the potential scope for abuse is very significant, which would not be in the interests of genuine unaccompanied children.
There have been a number of cases where people who are over 18 have, nevertheless, claimed to be younger in order to take advantage of our generous approach to unaccompanied children, often destroying their own documents so that there is no evidence to contradict their claims. Moreover, some people initially present documentary evidence stating their age as over 18 but then change their story at a later date. The special arrangements that are in place for unaccompanied children have been well received. But the Government believe it is essential to guard against putting in statute any provisions that would provide an open invitation for any young adult asylum seeker to abuse these special arrangements for their own advantage. As I said, that would certainly not be in the interests of child asylum seekers.
Some children may arrive in the country without documents or with obviously forged documents. Each case would be considered according to its individual circumstances. We have made absolutely clear that we understand that it may have been necessary for young people or persons of any age who arrive in this country to have travelled across the world with forged documents or documentation that is not in order. They are given a proper opportunity to admit that the documents are forged and then to prove the authenticity of their age and case for asylum.
In many cases it will be obvious that the person is under 18 years of age. That will, of course, be the case for very young children, who are probably the most vulnerable. But in other cases, particularly 16 to 18 year-olds, the issue may be less clear-cut. The Government consider that the burden of proof must rest with the applicants seeking entry to the United Kingdom to satisfy our immigration officials of their age. If the authorities believe and have come to the view that they are under 18, of course they will accept under 18 as the age, but where they have doubts about that, the whole issue is in contention. The Government do not think it is unreasonable in most cases to expect a 16 or 17 year-old, for example, to take steps to obtain documents, such as birth certificates or other material, to establish their age.
Medical assessments, although useful in the absence of documentary proof, cannot provide conclusive evidence as they measure maturity and not chronological age. That point was well made by my noble friend Lady Gardner of Parkes. In all instances there is a significant margin of error which would create the difficulty.
The other point that I mentioned earlier is that, if the Secretary of State appoints the panel of paediatricians, many asylum seekers would not have confidence in that panel because it had in fact been chosen by the Home Secretary and not themselves. Therefore, we believe that it is important that the individual asylum applicant should be left free to choose how he will prove his particular age.
If we move to a position that the Home Office cannot have regard to credible documentary evidence of age, or to a system based more heavily on medical assessments rather than documentary proof, the Government's view is that it could put the special arrangements for unaccompanied children at risk of being exploited by those who are over 18. We should find that wholly unacceptable.
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