Between 2016 and 2020, 160 unaccompanied children sought asylum in Ireland, show figures from Eurostat.
In that same period, 115 unaccompanied young people were sent to Tusla and assessed as to whether they can access services under the Child Care Act, show figures from the agency.
The Department of Justice relies on those assessments, it seems, when determining whether somebody should be treated as a child, or as an adult, when they apply for asylum.
Just 48 of those 115 people were assessed as qualifying for those services, show the Tusla figures. Which suggests they were deemed to be children, and the remainder were deemed to be adults.
(Tusla didn’t respond to a query as to whether they might be refused services for another reason.)
How those decisions are reached is a problem though, says Aoife Horgan, an early childhood studies researcher at University College Cork.
A “culture of disbelief” complicates unaccompanied minors’ path to accessing child services in Ireland, she says.
“The best interest of the child has to be the first and foremost consideration, and the policy of child first, asylum seeker, migrant second,” she says.
Both Tusla and the Department of Justice said they weren’t responsible for deciding whether applicants are to be considered children or adults for their asylum applications.
Tusla assesses the needs of the child, said a spokesperson for the agency. The Department of Justice has the “the statutory function of determining whether an applicant for international protection is a minor or an adult”, they said.
A spokesperson for the Department of Justice said: “The matters raised are not for this Department as it has no role in age assessment.”
Last month, James Browne, Fianna Fáil minister of state at the Department of Justice told the Dáil that “the IPO does not maintain statistics on age disputes”.
A recent FOI response from that body, though, gave some figures. Twenty young people from Afghanistan were referred by the International Protection Office for age assessments in 2019 and 2020, says the response, and six were found to be minors.
If an unaccompanied child at the airport or port, say, or at the International Protection Office in the city centre, says they want to apply for international protection, they are referred to Tusla, said Browne, the minister of state at the Department of Justice in the Dáil last month.
It’s hard to compare figures for applications for asylum from minors, with the numbers sent for age assessments, to verify this. Some may have applied one year, but not had an assessment until the following year, for example.
Between 2016 and 2020, though, 160 applicants for asylum in Ireland said they were minors, according to Eurostat figures. In that same period, 118 young people were sent for Tusla assessments and 115 were assessed, show figures from Tusla.
Tusla’s figures are for whether the young people are eligible for services under the Child Care Act 1991. Its assessment is “to determine if the individual is in need of child protection services, in line with best practice”, said a Tusla spokesperson.
“The purpose of the assessment is to establish the needs of the child and to inform the development of a care plan,” they said.
“The Department of Justice holds responsibility for identity issues for individuals in the State and has the statutory function of determining whether an applicant for international protection is a minor or an adult,” they said.
Tusla didn’t respond to a query as to whether these assessments are relied upon by the Department of Justice, for determining if a young person is a minor for their asylum application.
Picking and Choosing
Fiona Finn, the CEO of migrants and refugee rights non-profit Nasc, says that based on her organisation’s experience, it’s usually kids who look older than their age who are referred to Tusla’s caseworkers for assessment.
Black teenage boys especially face age disputes, says Finn. “In our experience, young Black African teenage boys are particularly at risk of being disbelieved as they may look older than 18.”
A guide for policymakers by the Council of Europe says that age assessment “should not be triggered merely as a result of the physical appearance of a person”.
It also should not be conducted “for ulterior reasons, such as for migration management purposes”, it says.
The birth of one in four kids younger than five around the world is unregistered, says a 2019 UNICEF report.
Sometimes that’s why kids turn up saying they’re underage with no proof to back up their claim, says a paper in the European Journal of Pediatrics. Other times, they’re fleeing war and conflict and lose their documents along the way.
The Department of Justice did not respond to a query asking what makes immigration authorities question someone’s age.
The minister or an international protection officer can arrange for the examination of an age disputed child “with reasonable cause”, says Section 24 of the International Protection Act 2015. But it doesn’t specify what is considered reasonable cause.
How Are They Assessed?
The act sets out in broad strokes how age assessments should be done. They should be performed “with full respect of the applicant’s dignity”, it says.
It shouldn’t be invasive and, if a medical exam is involved, a registered physician should perform it.
It says that it should not be done without the consent of the child or that of an adult taking responsibility for them – or a Tusla employee.
But exactly how age assessments are done in Ireland is unclear.
Horgan, the UCC researcher, says that the issue of consent is a big one. “The consent needs to be informed consent,” she says.
Authorities should let the kids know why a doctor is examining them “in a manner in which they understand”, says Horgan.
“Like, ideally, repeat back in their own words. There is a level of obligation to make sure that the consent is informed,” says Horgan.
A lack of transparency around age assessment procedures may also hinder how much young people understand what they’re agreeing to.
“The process itself needs to be more transparent,” says Finn, the CEO of Nasc.
“Some young people have expressed to us that they didn’t understand the process and felt like they were left completely adrift after a decision was made that they were adults,” she says.
Fiona Hurley, policy and communication manager at Nasc, says they’re especially concerned about some tests carried out during medical examinations of age-disputed kids.
“People are very concerned about things like bone-density testing and all of that,” she says.
“Like, that’s not at all good practice and not necessarily accurate at all either.”
Doing medical exams is contested. A paper by three European paediatricians from 2016, including retired paediatrician Professor Alf Nicholson, who was a consultant paediatrician at Temple Street Children’s Hospital, says it may be morally unacceptable to examine patients who are not ill.
The paper, written on behalf of the European Academy of Paediatricians’ Advocacy and Ethics Group, “strongly recommends all paediatricians in Europe not to participate” in the age assessment procedure for asylum-seeking kids who say they’re underage.
“It also recommends all paediatricians to convey this opinion to all other physicians,” the paper says.
Age assessments include evaluating the psychological maturity of age-disputed kids, says Horgan.
Those assessments should always consider the influence of past trauma on the behaviour of asylum-seeking children, she says.
Irish assessors’ ideas of how a child should act doesn’t always take into account what the kids have been though, she says.
“The experience that they have gone through to reach their destination doesn’t always come in line with what our experience of what childhood should be,” she says.
“They can come across as a lot more mature than, say someone who hasn’t been through those experiences, they’re living in Ireland, a child of similar age,” she says.
Finn, the CEO of Nasc, says social workers alone may not be the best fit for carrying out these assessments.
“We would like to see everyone who claims to be a minor referred for an age assessment and this assessment should be carried out by a multi-disciplinary team, to include health and mental health professionals,” she says.
Horgan, the UCC researcher, says age assessments can be imprecise. “Some studies show that there can be a five-year margin of error on either side, and you have to think, is it in the best interest of the child?”
She points to a recent BBC Newsnight investigation that said it had identified 137 kids seeking asylum in the UK between 2018 to 2019 who were misclassified as adults and sent to adult accommodation centres. Authorities later accepted that they weren’t lying about their age.
Hurley, the policy and communication manager at Nasc, says there is no simple route to appeal for those who want to challenge.
“There is no kind of appeal process per se, in the legislation,” she says. “We have come across people who have gotten a review, but again that process isn’t at all transparent.”
Whether the young person gets an appeal can depend on if they have access to legal advisors and solicitors, she says, who can request their case to be reviewed “through an informal process” or challenge the decision at the High Court with a judicial review.
Nick Henderson, CEO of the Irish Refugee Council, says there needs to be a “clear independent appeal mechanism for age assessment, and that young people assessed as adults are informed of their right to appeal, and right to legal representation in the process”.
Why It Matters
Being misclassified creates disadvantages, says Hurley, the policy and communication manager at Nasc.
It makes the asylum process harder. “Children in asylum applications are being given the benefit of the doubt, when someone’s asking you questions that you can’t necessarily answer as a child, there’s more understanding of that,” she says.
She knows of asylum seekers who were adamant that they were misclassified as adults, but they were sent to direct provision centres and struggled there, she says.
“They just felt completely lost when they were in the centres, and quite intimidated by being at the centre and being around, you know, families and being around kind of older adults,” says Hurley.
Henderson, the CEO of the Irish Refugee Council, says misclassified kids also miss out on their “right to family reunification with their parents and siblings”.
“It goes without saying that this would be most serious,” he says.
Also, under the Immigration Act 2003, border control officers can’t refuse leave to land to minors unless they believe that they’re adults.
“There are concerns being voiced that on occasion, minors are being refused permission to enter over disputes in age,” says a 2011 paper by Horgan, the early childhood studies researcher at University College Cork.
Horgan, who is still investigating the topic for her PhD, says one of the main challenges of researching the area is that kids rarely speak out.
“They don’t want to speak out against the state, whom they’re reliant on, because if there’s a separated child in Ireland and they haven’t entered the asylum process or anything like that, they’re here at the discretion of the minister,” she says.
“So, you know, even if they’re experiencing problems and issues, there is, you know, a block, so to speak, on them against speaking out about who they’re reliant on,” she says.