Nationality And Borders Act 2022

Part 4: Age Assessment

Section 49: Interpretation

490. Overview: This section defines a number of terms referred to in the sections that Part 4, which relates to age assessment. This includes the definition of an age-disputed person to Part 4 will apply.
491. Background: In recent years, the UK has typically received an average of 3,000 asylum claims from unaccompanied children. These claims make up approximately 9-10% of the overall number of asylum seekers that arrive in the UK each year. The vast majority of UASC claim to be aged 16-17. In the year ending June 2021, 74% of UASC fell into this age range.
492. The age of a person arriving in the UK is normally established from the documents with which they have travelled. However, many who claim to be under the age of 18 do not have any definitive documentary evidence to support their claimed age. While many are clearly children, for others it is less clear and there is a need to make a decision on their claimed age. This situation carries significant safeguarding risks. An incorrect determination can result in adults being placed with or alongside children. Conversely, if a child is wrongly assessed to be an adult, they will be deprived of the statutory support owed to them.
493. This section substitutes section 94 (7) of the Immigration and Asylum Act 1999 with a subsection that makes reference to the conduct of age assessments under this Part.
494. Subsection 1 defines an age-disputed person. The effect of this is that age assessments under this Part will only be carried out on those who are subject to immigration control, where there is not enough evidence to be sure of their age.
495. Subsection 2 defines a number of terms used in this Part, including local authority, immigration functions, immigration officers, a designated person, a decision-maker and a specified scientific method of age assessment.
496. Subsection 3 defines "relevant children’s legislation" across the United Kingdom for the purposes of these provisions
497. Subsection 4 defines the terms "corresponding function" and "statutory provision" referred to in subsection 3.
498. Subsection 5 replaces section 94(7) of the Immigration and Asylum Act 1999 with a reference to the conduct of age assessments under this Part of the Act. This is because age assessments which need to be carried out to establish eligibility for support under the Immigration and Asylum Act 1999 can now be carried out under this Part.

Section 50: Persons subject to immigration control: referral or assessment by local authority etc.

499. Overview: This section confers a power on the Secretary of State to conduct full age assessments on age-disputed persons (as defined in section 49), upon referral from a local authority in England, Wales and Scotland or a Health and Social Care Trust in Northern Ireland.
500. Background: There is no single technique, or combination of techniques, that can determine someone’s age with precision. However, where an age dispute arises in relation to a person subject to immigration control, a decision must be made on their age.
501. Where there is doubt about whether a person claiming to be under 18 years old is an adult or a child, they are temporarily treated as a child until further consideration of their age is undertaken and they are referred into the care of local authority children’s services. Local authority social workers will usually proceed to conduct a holistic age assessment, known as a Merton assessment.
502. As a result, local authorities currently carry the burden of conducting these age assessments on individuals subject to immigration control. The outcomes of these assessments are assigned significant weight by the Secretary of State when making their decision on age for immigration purposes. Merton assessments must adhere to a set of standards that have been set out by the courts in a series of judgments that have considered age disputes. Merton assessments typically involve an interview or series of interviews between the age-disputed person and two appropriately qualified social workers. They should also consider any other information obtained, including the views of other people with a role in the young person’s life. However, local authorities face significant challenges in conducting these assessments.
503. This section confers a power on the Secretary of State to conduct full age assessments on age-disputed persons, upon referral from a local authority. Local authorities will retain the right to conduct age assessments themselves if they prefer to do so. This decision-making function, referred to as the National Age Assessment Board, will largely consist of a team of qualified social workers dedicated to age assessments.
504. The intention is that the establishment of the board will achieve greater consistency in quality of assessments and reduce the incentives for adults to provide incorrect ages. In doing so, it will seek to reduce the financial and administrative burden of undertaking assessments on local authorities and ensure that the ages of those people are recorded accurately for the purposes of their immigration or asylum application.
505. Subsection 1 provides that local authorities or a public authority specified in regulations made by the Secretary of State, may refer an age-disputed person to a designated person for an age assessment to be conducted. A designated person is defined in clause 49 as an official designated by the Secretary of State to conduct age assessments under this section.
506. Subsection 2 defines the circumstances in which the actions required under subsections 3 and 4 apply. The first circumstance is where a local authority - needs to know the age of an age-disputed person for the purposes of deciding whether or how to exercise any of its functions under relevant children’s legislation. This may happen where, for example, a person who is subject to immigration control presents to the local authority seeking support as a child, and the local authority needs to establish their age in order to decide, whether to provide them with children’s support. The second circumstance is where the Secretary of State notifies a local authority that it doubts that an age-disputed person, in relation to whom the local authority has exercised or may exercise functions under relevant children’s legislation, is the age that they claim to be. This may happen where, for example, a person who is subject to immigration control presents to the Home Office claiming to be a child, and the Home Office decides to refer them to a local authority on the basis that, although their age is doubted, they may be a child who requires local authority support, and an age assessment is needed to establish this.
507. Subsection 3 requires that where subsection 2 applies, a local authority must either refer the age-disputed person to the designated person to conduct an age assessment or conduct an age assessment themselves and inform the Secretary of State of the results of its assessment. Alternatively, if the local authority is satisfied the person is the age they claim to be and considers that an age assessment is not required, the local authority must notify the Secretary of State of this in writing.
508. Subsection 4 requires that where a local authority either conducts an assessment themselves or confirms that they are satisfied that the age of an age-disputed person is as claimed, they must, on request from the Secretary of State, provide the Secretary of State with such evidence as the Secretary of State reasonably requires, to allow the Secretary of State to consider that decision.
509. Subsection 5 requires that, where a local authority refers an age-disputed person to a designated person for an age assessment, the local authority must provide any assistance that the designated person reasonably requires for the purposes of conducting that assessment.
510. Subsection 6 stipulates that the standard of proof for an age assessment under this section, either conducted by the designated person or a local authority, is the balance of probabilities.
511. Subsection 7 stipulates that an age assessment conducted by a designated person under this section following a referral from a local authority is binding on the Secretary of State and on a local authority that is aware of the age assessment. Whether the assessment is binding or continues to be binding is subject to section 54 (Appeals relating to age assessments) which provides a right of appeal against an age assessment conducted by the designated person or a local authority. It is also subject to section 56, (Civil legal services relating to age assessments) which makes provision about situations where new information comes to light after an age assessment has been conducted or an appeal against that assessment has been determined. This means that the age assessment conducted by a designated person would no longer be binding if it is overturned on appeal, or if a new assessment decision is taken under section 56 because significant new evidence has come to light.
512. Subsection 8 specifies that regulations under subsection (1)(b) are subject to the negative resolution procedure. Where regulations under this Act are subject to "negative resolution procedure" the statutory instrument containing the regulations is subject to annulment in pursuance of a resolution of either House of Parliament.

Section 51: Persons subject to immigration control: assessment for immigration purposes

513. Overview: This section confers a power on the Secretary of State to conduct full age assessments on age-disputed persons (as defined in section 49), for the purposes of deciding whether or how the Secretary of State should exercise any immigration functions in relation to the person.
514. Background: It is expected that most age assessments undertaken by the National Age Assessment Board will be conducted upon referral from a local authority, but this section enables the board to conduct age assessments for the purposes of deciding whether or how the Secretary of State should exercise any immigration functions.
515. This section confers a specific power on a designated person (an official designated by the Secretary of State) to conduct age assessments on an age-disputed person.
516. Subsection 1 stipulates that a designated person may conduct an age assessment on an age-disputed person for the purposes of deciding whether or how the Secretary of State should exercise any immigration functions in relation to that person.
517. Subsection 2(a) states that the Secretary of State may conduct an age assessment on an age-disputed person under subsection (1) in circumstances where subsection (3) and subsection (4) of section 50 do not apply. This allows for a designated person to conduct an age assessment on an age-disputed person where the person is not in the care of a local authority and is not claiming to be an unaccompanied child. This could include where an age-disputed person seeking asylum is claiming to be a child dependent of another person and does not require accommodation or support from a local authority.
518. Subsection 2(b) says that even where subsections (3) and (4) of section 50 do apply, there are two circumstances where a designated person would be permitted to conduct an age assessment of an age-disputed person. Firstly, an age assessment may be conducted by the designated person at any time before a local authority has referred an age-disputed person to the designated person or conducted an age assessment itself. Secondly, an age assessment can also be conducted if the Secretary of State has reason to doubt an age assessment conducted by a local authority on an age-disputed person or has reason to doubt a local authority’s decision not to conduct an age assessment.
519. Subsection 3 specifies that an age assessment under this section is binding on the Secretary of State when exercising immigration functions. Whether the assessment is binding or continues to be binding is subject to section 54, and also subject to section 56. This means that the age assessment conducted by a designated person under this section would no longer be binding if it is overturned on appeal, or if a new assessment decision is taken under section 56 because significant new evidence has come to light.
520. Subsection 4 stipulates that the standard of proof for an age assessment under this section is the balance of probabilities.

Section 52: Use of Scientific Methods in Age Assessments

521. Overview: The purpose of this section is to provide the Secretary of State with the power to make regulations specifying the use of scientific methods of age assessment and for a decision-maker to be able to take a negative credibility inference from a refusal to comply with a request to undergo a scientific age assessment, without good reason.
522. Background: Currently, scientific age assessments are infrequently used by local authorities or the Home Office, though such information, if presented, can be considered alongside other evidence of age. In addition, there is no specific provision that permits a local authority or the Home Office to take a negative credibility inference from an individual’s refusal – without reasonable grounds – to comply with a request to undergo a scientific age assessment.
523. In view of the inherent difficulty in reliably assessing age, the Government considers it is necessary and appropriate to provide decision-makers with a wider breadth of evidence on which to base their decisions. Assessing someone’s age in the absence of documentary evidence is a highly challenging task. Local authorities regularly report difficulties in handling cases that involve age disputes. As the courts have recognised, even comprehensive and thorough holistic age assessment can carry a significant margin of error. Similarly, there have been cases where assessments have been conducted on the same individual by different social workers, which have led to very different conclusions.
524. The use of scientific methods offers the opportunity for more informed decision-making around an age-disputed person’s age. The United Kingdom is one of few countries in Europe that does not routinely make use of scientific methods of age assessment. Many other European countries make use of a variety of scientific techniques to assist in making decisions on age. It is the Government’s intention to fully explore the options available.
525. These sections confer powers:
     • on the Secretary of State to make regulations concerning the use of scientific methods of age assessment; and
     • for a decision-maker to take a negative credibility inference from a refusal to comply with a request to undergo a scientific age assessment without good reason.

526. Subsection 1 stipulates that the Secretary of State may make regulations specifying scientific methods of age assessment that may be used for the purposes of age assessments conducted under sections 50 and 51.
527. Subsection 2 sets out a non-exhaustive list of the types of scientific methods that may be specified in regulations by the Secretary of State under Subsection 1. In particular, it references methods involving examinations or measurements of a person’s body (which may include, for instance, X-rays, Magnetic Resonance Imaging, or ultrasound) and methods involving the analysis of samples taken from the body (such as the analysis of DNA methylation).
528. Subsection 3 states that the Secretary of State’s power to make regulations specifying a scientific method under Subsection 1 is conditional on the Secretary of State having determined that the method is appropriate for assessing age, after seeking scientific advice.
529. Subsection 4 stipulates that the specified scientific method may be used for the purposes of an age assessment conducted under sections 50 and 51, only where appropriate consent is given.
530. Subsection 5 defines the nature of the appropriate consent that must be given under Subsection 4, including where an age-disputed person is judged to have the capacity to consent and where they are not considered to have capacity to consent. Where the latter applies, this subsection also makes provision for the Secretary of State to stipulate, in regulations, another person who can give consent on behalf of the age-disputed person.
531. Subsection 6 stipulates the conditions where subsection 7 (concerning the consequences of a refusal to consent) applies. It states that a negative inference may only be taken from a refusal to provide consent where there are no reasonable grounds for refusing that consent.
532. Subsection 7 stipulates the consequences of a refusal to provide appropriate consent under Subsection 5, either by the age disputed individual or an adult acting on their behalf. It states that when the decision-maker is considering an age-disputed person’s age, they must take into account a refusal to consent to undergo a scientific age assessment, without reasonable grounds, as damaging to credibility.
533. Subsection 8 stipulates that the regulations made under this section will be subject to the affirmative resolution procedure. This means that any regulations made by the Secretary of State must be approved by both Houses of Parliament before coming into law.
534. Subsection 9 clarifies that this section does not preclude the ability to undertake other scientific methods of age assessment not specified in regulations provided that it is considered appropriate to do so and the appropriate consent is sought. This reflects the pre-existing position that does not explicitly prohibit the use of scientific methods of age assessment and ensures that decision-makers retain the ability to employ other methods of age assessment where appropriate. However, failure to consent to a non-specified scientific method would not affect credibility under this section.

Section 53: Regulations about Age Assessments

535. Overview: The purpose of this section is to provide the Secretary of State the power to make regulations about the way in which age assessments are conducted under sections 50 and 51.
536. Background: Where there is doubt about whether a person claiming to be under 18 years old is an adult or a child, they are temporarily treated as a child until further consideration of their age is undertaken and they are referred into the care of local authority children’s services. Local authority social workers will usually proceed to conduct a holistic age assessment, known as a Merton assessment. As a result, local authorities currently carry the burden of conducting these age assessments on individuals subject to immigration control. The outcomes of these assessments are assigned significant weight by the Secretary of State when making its decision on age for immigration purposes. Merton assessments must adhere to a set of standards that have been set out by the courts in a series of judgments that have considered age disputes. Merton assessments typically involve an interview or series of interviews between the age-disputed person and two appropriately qualified social workers.
537. In addition to caselaw, best practice guidance has also been issued which provides further assistance to those conducting age assessments. Therefore, local authorities are required to rely on the body of caselaw and the best available guidance to approach the task of age assessment. The absence of a more prescribed manner to conduct these age assessments has inevitably meant that the way in which local authorities approach this task can vary – in turn this leads to variance in how age is assigned for immigration purposes.
538. The intention of this section is to allow the Secretary of State the power to provide more clarity on what an age assessment should entail, including where appropriate, existing elements of age assessment caselaw.
539. This section confers a specific power on the Secretary of State to make regulations on the process of conducting age assessments on age-disputed persons
540. Subsection 1 provides that the Secretary of State may make regulations about age assessments carried out by local authorities and designated persons (officials of the Secretary of State) conducted under section 50 or section 51. Regulations may make provision for the processes to be followed, the necessary qualifications and experience of the person conducting the age assessment (including those conducting scientific methods of age assessment), the content and distribution of age assessment reports, how decisions and appeal rights should be communicated to the age-disputed person and the consequences of a lack of co-operation by the age-disputed person.
541. Subsection 2 provides that the Secretary of State may make further provision about the referral process by a local authority of an age-disputed person, how and when a local authority must inform the Secretary of State of the outcome of its age assessment decision and the evidence the Secretary of State may require when a local authority conducts an assessment itself or accepts the claimed age of the individual.
542. Subsection 3 provides that regulations made under the section are subject to the affirmative resolution procedure. This means that any regulations made by the Secretary of State must be approved by both Houses of Parliament before coming into law

Section 54: Appeals Relating to Age Assessment

543. Overview: This section provides for a right of appeal to the First Tier Tribunal for an age-disputed person who was determined, following an age assessment under this Part, to be an age different to the age they claimed to be.
544. Background: At present, where an age assessment is undertaken which determines that the individual subject to immigration control is an adult, and that individual wishes to challenge that assessment, their only route to do so is via judicial review. While capable of addressing disputes of this nature, judicial reviews are complex, expensive and can take a long period of time to conclude. There is a need to provide for a simpler, less expensive and swifter form of dispute resolution. The provision of a right of appeal to the First Tier Tribunal against certain age assessment decisions will accomplish that objective.
545. An age-disputed person will be able to lodge an appeal against an age assessment decision under this Part when the assessment concludes that person is not the age they have claimed to be.
546. In consideration of the appeal, the Tribunal will not be limited to an evaluation of whether the correct process was followed during the age assessment but will be required to come to its own determination of the age of the person. In doing so the Tribunal will be able to consider any evidence it deems relevant, not simply that which was before the initial decision maker. The Tribunal will determine the age of the age-disputed individual and assign them a date of birth.
547. The determination of the court will be binding on both the Home Office for immigration purposes and local authorities.
548. Subsections 1 and 2 provide that an age-disputed-person may appeal to the First-tier Tribunal where an age assessment conducted under sections 50 or 51 has assessed their age to be different from the age they claim to be.
549. Subsection 3 states that the Tribunal must come to a conclusion on how old the age-disputed person is on the balance of probabilities. The Tribunal must also assign a specific date of birth to the age-disputed person.
550. Subsection 4 details that the Tribunal is able to consider any matter or evidence it believes relevant when deciding an appeal. This means that the Tribunal is not limited to evaluating the evidence that was available to the decision maker at the time the decision was taken.
551. Subsection 5 provides that a judgment of the Tribunal will be binding on the Secretary of State when exercising immigration functions, as well as any local authority that has provided or may provide services under relevant children’s legislation. Relevant children’s legislation is defined in section 49.
552. Subsection 6 confirms which other sections need to be read in connection with this section. In particular, the effect of this is that, although appeal determinations are binding, as set out in subsection 5, this is subject to section 56 (which allows for new age assessment decisions to be taken after an appeal, where there is significant new evidence).

Section 55: Appeals relating to Age Assessment: Supplementary

553. Overview: This section details procedural matters for the provision of a right of appeal against age assessment decisions of people subject to immigration control.
554. Background: This section sets out a number of further matters on how the appeal process will work. It confirms that an appeal may only be brought by a person who is in the United Kingdom. Should that person depart the United Kingdom while the appeal process is ongoing, the appeal will be considered withdrawn.
555. In line with judicial reviews, age-disputed persons will be able to seek interim relief from the Tribunal , in the form of an order from the Tribunal that they be treated as a child pending the conclusion of their appeal.
556. Under existing legislation, a determination of the First-Tier Tribunal (which will include an age assessment determination under this Part) can be appealed to the Upper Tribunal (and onwards to a higher court) on a point of law, which would require permission to appeal.
557. Subsection 1 states that this section applies to appeals under section 54.
558. Subsection 2 details that an appeal may only be brought by an age-disputed person who is in the UK.
559. Subsection 3 details that if the age-disputed person leaves the UK before the appeal is finally determined the Tribunal must treat the appeal as abandoned.
560. Subsection 4 provides for an interim relief mechanism. This allows an age-disputed person who is bringing an appeal to ask the Tribunal for an order that the relevant local authority must treat them as a child pending the conclusion of the appeal process. The Tribunal must decide whether or not it would be appropriate to grant such an order.
561. Subsection 5 and subsection 6 state that following an allegation that relevant documents are forged, the Tribunal may hold further proceedings in private where to do otherwise would not be in the public interest. Many types of documents may be submitted in evidence, and these may rely on sophisticated technologies. The security features, ways of forging or defeating them and forgery detection methods should not normally be divulged to the public.
562. Subsections 7 and 8 provide for the Tribunal, at its discretion, to introduce a system for reporting certain appeal judgments that it believes illustrate important legal principles, and for these judgments to set precedents in such matters for Tribunal judges to follow in other appeals.
563. Subsection 9 details when an appeal is to be considered as finally determined. It will not be finally determined where there remains time for an application for permission to appeal to be made to a higher court, or where such permission has been granted and the appeal is pending, or where an appeal has been remitted by a superior court and is awaiting determination by the Tribunal.

Section 56: New Information following Age Assessment or Appeal

564. Overview: This section details the process for assessing new evidence that may come to light only after an age assessment has been made, including cases where the individual has been through the appeal process.
565. Background: Where an age assessment has been carried out and an appeal has either not been brought or has been concluded, this provision provides a mechanism to consider any further information regarding an individual’s age that comes to light. To prevent vexatious applications, the evidence submitted needs to be significant, it will not be sufficient for a person to make representations that amount to little more than a disagreement with earlier findings of fact in respect of their age. Where a decision-maker concludes that the evidence is significant but is nevertheless not sufficient to arrive at a new decision on the person’s age, the individual will continue to be treated by the decision-maker as the age they were previously assessed to be, but the individual will be afforded a new right of appeal to the First-tier Tribunal.
566. This section sets out the framework for consideration of new information following an age assessment decision, including after an appeal process has been concluded.
567. Subsection 1 defines when this section shall apply, namely when an age assessment has been carried out (referred to in subsection 2 as the "first age assessment") and an appeal has either not been brought or has been concluded, but new information about the person’s age is brought to the attention of the decision maker.
568. Subsection 3 sets out the process to be followed where the first age assessment was conducted by a designated person. In the first instance they must satisfy themselves that the new information is significant and if it is, they must conduct a further age assessment on the individual.
569. Subsection 4 sets out the process to be followed where the first age assessment was conducted by a local authority. In the first instance they must assess (or ask a designated person to assess) whether the information represents significant new evidence. If a decision is taken that the evidence is significant, then they must undertake a further age assessment or refer the matter to a designated person for a further age assessment.
570. Subsection 5 explains what is meant by significant new evidence. Evidence will be considered significant only where there is a realistic prospect of that information leading to the age-disputed person being assessed as an age different to that determined in the first age assessment or on appeal.
571. Subsection 6 and Subsection 7 provide that a new assessment undertaken under this section on new information following an age assessment or appeal shall be treated, for the purposes of the wider age assessment sections, in the same way as if it was carried out under section 50 or section 51. The effect of this is that the new age assessment will be appealable to the First-tier Tribunal if it meets the requirements for a right of appeal under section 54.
572. Subsection 8 states that if a decision maker is required to conduct a further age assessment, they do not need to revisit issues covered in the first age assessment, where they believe that to be unnecessary. This means that a subsequent age assessment would not need to repeat the processes undertaken in the first age assessment but would instead need to reconsider the first age assessment in light of the new evidence that has been presented.

Section 57: Civil legal services relating to age assessments

573. Overview: This section amends Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO 2012") to enable individuals seeking to appeal an age assessment decision to receive advice, assistance and representation in the form of civil legal services. It also amends Part 3 of Schedule 1 to LASPO 2012 to allow advocacy at age assessment appeals to be funded under legal aid.
574. Background: Each paragraph of Part 1 of Schedule 1 to LASPO 2012 describes the types of civil legal service that may be made available. Services listed in that Part are known as "in scope". To obtain legal aid, an applicant must have a determination from the Director of Legal Aid Casework that their issue is in scope by virtue of being listed in Schedule 1. There are also statutory means and merits test which are set out in section 11 LASPO 2012 and in Regulations made under that Act.
575. Part 3 of Schedule 1 to LASPO 2012 describes when advocacy is permitted as part of a civil legal service listed under Part 1 of Schedule 1.
576. The intention of this section is to bring civil legal services for age assessment appeals into scope by amending Part 1 of Schedule 1 and to allow for advocacy at an age assessment appeal by amending Part 3 of Schedule 1.
577. The aim of this section is that individuals seeking to appeal an age assessment decision in England and Wales can be supported by receiving advice and representation for that appeal.
578. Subsection 1 sets out that Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is being amended.
579. Subsection 2 inserts a new paragraph 31B into Part 1 of Schedule 1 which sets out that civil legal services are made available to individuals appealing an age assessment decision. New paragraph 31B(1) sets out that civil legal services are being provided for an age assessment appeal under the Nationality and Borders Act 2021, an application for an order for support to be provided pending determination of that appeal, and an onward appeal to either the Upper Tribunal, Court of Appeal or Supreme Court. Sub-paragraph (2) of new paragraph 31B sets out that sub-paragraph (1) is subject to the exclusions set out in Part 2 and Part 3 of Schedule 1 to LASPO 2012.
580. Subsection 3 amends paragraph 13 of Part 3 of Schedule 1 to LASPO 2012 to provide that advocacy before the First-tier Tribunal for an age assessment appeal is permitted.