The State Has No Guidelines for Judging If Asylum Seekers Are Children, but It Does So Anyway

Between 2016 and 2020, 115 children who came from outside of Ireland without parents or caregivers were referred by the International Protection Office (IPO) to Tusla for age assessment, Tusla’s figures show.

But Tusla doesn’t currently have any internal guidelines or policy for assessing age, it said in arecent response to** **a request under the Freedom of Information (FOI) Act. It’s drawing one up at the moment, the response says.

“The revelation that there are no guidelines for assessing age is shocking,” says Fiona Finn, the CEO of migrant and refugee advocacy group Nasc.

They should have been in place on 31 December 2015, she says, when the current law, the International Protection Act 2015, was enacted.

It matters, says immigration barrister Cathal Malone, because there are all kinds of things in that law, like how a young person should understand what methods will be used in any examination, or that a young person’s dignity is to be respected.

“It’s very difficult for the minister to ensure those things if the minister isn’t even sure what methods are being used,” said Malone.

The Department of Justice didn’t respond directly to queries asking if it was aware that Tusla had no guidelines for assessing age.

A spokesperson said it can’t comment on operational matters under the ambit of Tusla.

But they said that age recommendations made by Tusla are “generally accepted by the IPO unless there is extreme evidence to the contrary submitted by the applicant”.

“In these rare cases, the IPO would normally refer the person to Tusla for an age re-assessment,” they said.

What The Process Is

In February 2021, the Czech Republic filed a query with European Migration Network, which coordinates with the European Commission in collating such queries and responses, asking how different member states did age assessments.

At Ireland’s request, the response from its International Protection Office (IPO) was not published along with other countries’ responses. But it was later released under the Freedom of Information Act.

“Under the International Protection Act 2015, while the IPO technically makes the decision on age assessments, we defer to the professional opinion of Tusla in these cases,” it says, as the IPO doesn’t have “the expertise to contradict the age the proposed minor tells us”.

In response to one part of the Czech Republic’s query, asking about which age assessment methods it uses and in what sequence, the IPO said: “This should be referred to TUSLA.”

Malone, the immigration barrister in Dublin, says if the IPO doesn’t know, it’s legally unacceptable.

Section 24 of the International Protection Act 2015 says the minister or an international protection officer should ensure that the young person understands the “method or methods to be used in the examination”.

Also, “the act puts certain obligations on the Minister for Justice or an international protection officer”, Malone says, to make sure, among other things, “that they’re performed with full respect for an applicant’s dignity”.

“It’s very difficult for the minister to ensure those things if the minister isn’t even sure what methods are being used,” said Malone.

“It seems they’re just sending the kid off to Tusla, which is like a black box, and the minister doesn’t know what happens from there.”

“How Old Do You Think You Are?”

In March 2009, Ahmad Siyar Gholam-Qadar found his way by land and sea from Afghanistan to Ireland, and once within Ireland, was billeted at the Kinsale Road direct provision centre in Co. Cork.

It’s a centre for adult asylum seekers and families. At the time, Gholam-Qadar was 16 years old, he says.

There, Gholam-Qadar got letters from the Office of the Refugee Applications Commissioner (ORAC) inviting him to interviews for age assessments. From that he says, he gathered that the Justice Department didn’t believe he was a child.

Over the following five months, he bussed or trained it to Dublin, he says, to age-assessment interviews at ORAC’s offices.

He had five age-assessment interviews, he says, and a physical exam where they looked at his teeth and stomach and took x-rays.

“I didn’t know what they wanted to prove,” he says. “I thought, what if the doctor who checked my stomach comes up and says, I think he’s 18, what would happen? What would they gain?”

Ahmad Siyar Gholam-Qadar, a year after he arrived in Ireland. Photo by Ahmad Siyar Gholam-Qadar.

At the time, Gholam-Qadar’s case was dealt with by ORAC, an old agency that was replaced by the International Protection Office (IPO) at the end of 2016. Tusla hadn’t yet been formed either.

But it’s unclear if ORAC at the time, like the IPO now, had the expertise to assess unaccompanied children’s ages or clear guidelines on the process.

A spokesperson for the Department of Justice said it can’t comment on the operations of ORAC as it was a fully independent statutory body replaced with the IPO.

Some European paediatricians, including Prof. Alf Nicholson, a former consultant paediatrician at Temple Street Children’s Hospital in Dublin, havecriticised the practice of examining migrant children’s bodies to determine their ages.

They say it’s morally reckless to examine patients who are not ill and call on their colleagues in Europe not to participate in age-determination physical exams.

Gholam-Qadar said he was asked during one interview how old he thought he was.

He pointed out that he had given them his Afghan national identity card, and told them he was 16 years old, and that he looked 16 years old. “Why would I lie about my age?” Gholam-Qadar said.

Overall, just 48 of 115 unaccompanied children referred to Tusla for age assessment between 2016 to 2020 were believed to be indeed children, its figures show.

Under the current law, not being believedmeans living among adults in direct provision centres, losing the benefit of the doubt on asylum claims, and missing out on the opportunity to be reunited with family.

Interviewers asked Gholam-Qadar political questions too, and he didn’t know how to respond, he says.

“They were jumping from questions about war and Taliban to how did you cross the border to Iran? How did you cross the border to Turkey? How did your father die? How did your mother die?” said Gholam-Qadar.

“I was feeling terrible. I wasn’t feeling good, but I didn’t have an option. I didn’t want to be deported back to Afghanistan.”

Between 2019 to 2020, twenty unaccompanied young people from Afghanistan, like Gholam-Qadar at the time, had their ages assessed at the request of the International Protection Office. Six were found to be minors, says the body’s response to an EU Commission query, released under the FOI Act.

Gholam-Qadar says he knew Afghan kids that were never believed.

But they finally “accepted that I was 16 and they gave me to the HSE”, he says. (The HSE was in charge of minding unaccompanied children before the formation of Tusla.)

The International Protection Act 2015 says that an adult should consent on behalf of a child that age assessment is in their best interests. That adult could be a guardian or a Tusla employee.

Gholam-Qadar says his solicitor told him he had to go through it. As an adult, Gholam-Qadar concluded that his assessors were inexperienced, he says.

“I don’t think they knew what they were doing. But I think they just wanted to find a way to say that I was over 18,” he says.

What Tusla Says

It’s not clear if Tusla still sends age-disputed kids for physical examination, or how its interviews to evaluate young people’s psychological maturity are done.

In a letter in response to an FOI request, Tusla says it carries out age assessment primarily to “establish the needs and best interest of the child or young person”.

They give young people without documents the benefit of the doubt when assessing their ages, it says.

“If the individual is not a child, the individual returns to the IPO to claim asylum. The current practice is that the IPO will accept the claim for international protection but will register the individual as an adult,” it says.

“Consideration has given to developing guidance to support staff in this area of practice but following a deliberative process and legal advice this was not progressed into approved national policy/national guidance for the agency,” it says. “We are currently engaged in a further deliberative process …”

It’s inexcusable “that we still don’t have standardised guidelines in place for social workers when they’re making age determinations”, says Finn, the CEO of Nasc.

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