New Illegal Migration Act measures and age dispute assessment tests

A series of measures to strengthen the immigration system and prevent abuse are being introduced to Parliament this week, marking the next step in the delivery of the Illegal Migration Act 2023 and our plan to stop the boats.

Legislation signed on 11 September includes changes to strengthen the asylum decision making process to clamp down on abuse of the system. This will see updated criteria for caseworkers assessing credibility of claims by explicitly setting out that factors such as the destruction of, or failure to produce an identity document, as well as refusal to disclose information required to access an electronic device like a phone passcode when asked, should be considered when assessing claims.

Following the government’s commitment to clamp down on illegal migration in order to help more people through safe and legal routes, the regulations will also confirm the launch of a consultation in October with local authorities across England, Scotland, Wales and Northern Ireland, as well as organisations within the sector to look at the UK’s capacity to accommodate and support those arriving through these routes. In January, a report will be laid before Parliament which will set out what is meant by safe and legal routes, detailing our existing and any proposed additional routes, and how they can be accessed by those most in need.

The measures will also clarify that the Home Secretary, rather than the courts, will determine what constitutes a reasonable time period to detain a person for immigration purposes. This includes when they are being removed from the UK. This will strengthen our response to illegal migration, by ensuring that, when detainees challenge the length of their detention as unreasonable, the courts must take the Home Secretary’s view into account.

Separately, secondary legislation laid by the Ministry of Justice this week will, once approved by Parliament, authorise the use of x-rays in scientific age assessments, paving the way for the Home Office to improve their ability to effectively determine the age of illegal entrants making disputed claims to be children. Age assessment is an important process to help prevent asylum seeking adults posing as children as a way of accessing support they are not entitled to, and allow genuine children to access age-appropriate services.

Legislation will then be laid by the Home Office, taking forward powers under the Nationality and Borders Act 2022, which will specify that x-rays of teeth and bones of the hands and wrists and MRIs of knees and collar bones can be used as part of the age assessment process.

This step will mean that - once approved by Parliament and implemented - decision makers will be able to take into account the refusal of a person claiming to be an unaccompanied child to be tested by these specified methods without good reason as damaging to their credibility when assessing their age. This statutory instrument forms part of the legal framework which will allow for the policy and operational development of this new approach, with rollout expected in 2024. These methods are widely used across Europe in many countries including Denmark, Norway and Sweden.

Immigration Minister Robert Jenrick, said:

Implementing the measures within our landmark Illegal Migration Act marks a crucial step forwards in our fight against illegal migration.

Scientific age assessments are also vital to weed out adults who exploit the system and present serious safeguarding risks. It is only right that the credibility of those who pose as unaccompanied children and refuse to be scientifically age assessed is questioned and held against them as part of the decision making process.

The use of MRI and x-rays are in line with the recommendations made by the Age Estimation Scientific Advisory Committee (AESAC) in their report published in January 2023. The committee provides advice to the Home Office on the use of existing and emerging scientific methods of age assessment, and the ethical considerations and best practice associated with them. The changes come as statistics show that between 2016 and June 2023 there were 11,275 asylum cases where age was disputed and subsequently resolved, of which almost half (49% - 5551 individuals) were found to be adults.

Many of those arriving in the UK who claim to be children do not have clear evidence, such as a passport, to back this up, making it difficult to assess their age. An example includes a man who crossed the Channel and claimed to be 16 years old. Immigration officers carried out an initial age assessment and deemed him to be 21 years old. He was dispersed to a hotel and referred to a local authority by his solicitor. Following a full assessment by the local authority, it transpired that he had claimed asylum and lived in another European country for five years and was 26 years old.

These changes will take a robust approach to deter adults from claiming to be children to prevent any delay to their removal when the duty to remove, under the Illegal Migration Act, applies and minimise the safeguarding issues which arise if a child is inadvertently treated as an adult, and equally if an adult is wrongly assessed as a child and placed in accommodation with younger children to whom they could present a risk.

The Illegal Migration Act will stop the boats by changing the law so that people who come to the UK illegally can be detained and then swiftly returned to a safe third country or their home country. Further measures, including the duty to remove, will be rolled out in the coming months.

The government remains determined to stop the boats and deter people from making dangerous journeys to the UK. The act is one important part of our collective effort to break the cycle, end exploitation by gangs and prevent further loss of life. We are tackling this issue on all fronts – including working upstream with international partners, clamping down on the criminal gangs with stepped-up enforcement, and working with the French to prevent more crossings.