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HomeNewsAndrew Tettenborn: Seeking asylum? It’s child’s play to pretend you’re under 18

Andrew Tettenborn: Seeking asylum? It’s child’s play to pretend you’re under 18


Children mixed up in other people’s fights deserve sympathy. Hence our rules about asylum, among other things, give unaccompanied minor asylum-seekers certain advantages: rights to mentoring, support and accommodation until the age of 18 and sometimes further, and more importantly a de facto fast track to permission to stay, at least temporarily and often in practice permanently.

Unfortunately there is a problem: what is to stop someone arriving alone, saying he is 16 but (conveniently) has no documents, and demanding this preferential treatment? Two weeks ago, Harriet Sergeant in the Spectator revealed the answer: nothing. Indeed, this racket, orchestrated by people-traffickers, seems to be happening on a grand scale. Demeanour, development and an insatiable demand for razors suggest very large numbers of adults admitted as unaccompanied minors. Government is too pusillanimous, and the UK Border Force too hidebound, to do anything about it.

The answer? As the Nordic countries and a few other EU members have done, introduce an element of serious questioning and compulsory medical examination, whether of teeth, wrists or physical development. So far our government has refused to go further than gentle questioning by social workers (a race not known for their scepticism), despite a courageous demand by Monmouth Tory MP David Davies to introduce meaningful checks (a demand that made Diane Abbott ‘ashamed to be British’, itself some indication that he was on the right lines).

Why? The rights establishment, of course. Guidance from the Association of Directors of Children’s Services essentially deprecates age assessments of any sort except as a last resort. So traumatising to the dear youngsters, don’t you see (and don’t argue that the very issue is whether they are youngsters at all: unless you know they’re over 18 it’s their right to be taken at their word). And as for medical assessments it repeats, smugly, that the dentists’ and paediatricians’ professional bodies are happy to frustrate them by advising against carrying them out except for therapeutic reasons (high ethical reasons of course, though practitioners seem not unhappy to perform tests at the request of an applicant who wants to prove he is a child).

And now we have a recent report from the oh-so-worthy Children’s Rights Division of the Council of Europe (a human rights organisation, incidentally, that will remain with us despite Brexit, together unfortunately with the UK’s adherence to another thoroughly mischievous international agreement, the UN Convention on the Rights of the Child). Age assessments, this report says, should be made only to ensure that the best interests of the youngster are served, even where there is no evidence he is a youngster. The reasons for administering them must be stated in detail, accompanied by a massive box-ticking exercise. Tests should be administered only with the informed consent of the subject and his guardian, again after exhaustive explanations. Even independent documentary sources that might indicate the child’s real age (school or government records etc) should be trawled only with the subject’s informed consent: absolutely vital, you see, to protect privacy rights, and far more important than checking whether someone is entitled to something he says he wants at public expense. Any investigation of sexual development must be prohibited completely, and no medical examination of any kind may be carried out if it might distress anyone.

The subject must, moreover, have the right to refuse to take part in any exercise at all, and – you’ve guessed – must be clearly told about this. And if he refuses? The words of the report give the game away: ‘Upon refusal, the child should not have to fear direct or indirect negative consequences resulting from the refusal. The presumption of minor age should be upheld.’

The subtext isn’t difficult to see. If taken seriously, these proposals would make it impossible effectively to check anyone’s assertion that he was under 18 if he did not wish it. One suspects, indeed, that this is the aim of the report: except perhaps where an arrival was clearly in the full flush of middle age, the state should be simply forced take him at his word.

This very common attitude – kids are vulnerable, and must never be either disconcerted or assumed capable of subterfuge – might sound good to human rights lawyers in the synthetic air of Strasbourg. Unfortunately it is also particularly pernicious in the asylum context. For one thing, telling migrants that, in effect, they have a veto over any testing of their assertions as to age sends a clear message that Europe is open to exploitation by anyone prepared to game the system and tell enough lies. For another, it openly encourages people-traffickers – something particularly relevant to the UK, where few asylum-seekers arrive except with their aid – by giving them clear guidance as to how to instruct the men they bring across, and something close to a guarantee of success once they arrive. And third, and most important, it distracts attention from the real children in need, who need our help and sympathy. Once again, human rights when ineptly handled can prove a fertile source of human wrongs, this time to those who do deserve protection and now may not get it.

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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