May 23, 2022
By Mathilde Brackx and Laura Cools
The Human Rights Centre of Ghent University (Belgium) and the Centre for the Social Study of Migration and Refugees (CESSMIR) recently submitted a third-party intervention (TPI) before the European Court of Human Rights in the communicated case of Fatoumata Diaraye BARRY v. Belgium. The case concerns a decision of the Belgian Guardianship Service not to recognise the applicant as minor following a medical age assessment and exemplifies the current contested practices and procedures regarding age assessment of unaccompanied minors in Belgium. In our TPI, we elaborate on these practices and procedures and submit that they raise some important issues under the right to respect for private life (Article 8 ECHR) and the prohibition of discrimination (Article 14 ECHR).
The applicant in this case is a Guinean national who declared to be an unaccompanied (foreign) minor (UAM) or mineure étrangère non-accompagnée (MENA) upon her arrival in Belgium in August 2019. The Belgian Guardianship Service, however, did not recognise her as a minor, thereby denying her the protection measures provided for UAM in Belgium (e.g. the assignment of a guardian). This decision was based on the fact that X-rays of her clavicle, teeth and wrist indicated that she had reached the age of majority. Her appeal against this decision was rejected.
On 24 September 2021, the applicant filed a complaint before the European Court of Human Rights, arguing that the decision not to recognise her as an UAM based on a medical age assessment violates both Articles 8 and 14 of the Convention. In addition, the applicant submits that the lack of an effective remedy to challenge either this decision or the result of the bone test itself constitutes a violation of Article 13 of the Convention.
Our third-party intervention addresses the excessive and often exclusive focus on medical age testing in determining the age of unaccompanied minors in Belgium in light of Articles 8 and 14 ECHR. Article 7, §1 of the Belgian Guardianship Act stipulates that in case of doubt regarding the age of the alleged minor, the Guardianship Service ‘immediately commissions a medical examination to be carried out by a doctor to verify whether or not the person is under 18 years old [emphasis added]’. This medical examination can include psychoaffective tests according to art. 3 Royal Decree of 22 December 2003.
Belgian authorities usually resort to a medical age examination consisting of a triple radiography of the clavicle, teeth and wrist, often ignoring documents presented by the unaccompanied minor, thus neglecting the possibility of psychoaffective tests. Furthermore, no guardian, not even a provisional one, is appointed during this age assessment procedure. This indicates the absence of the application of a presumption of minority principle (UN Committee on the Rights of the Child, Joint Gen. Comment 3/22, §32(h)). In our TPI, we submit that this Belgian age determination practice raises issues under Articles 8 and 14 ECHR for several reasons.
Firstly, the Belgian practice on age assessment disregards the private international law rules on the recognition of foreign acts. While the performance of psychoaffective tests is optional according to the Royal Decree on Guardianship, the Belgian Code of Private International Law requires all Belgian public authorities to examine whether foreign documents presented to them can be recognised (art. 27). However, as discussed in our TPI, the Belgian Guardianship Service often fails to take into consideration foreign birth certificates or other personal status documents of unaccompanied minors indicating minority, letting the results of the medical examination prevail instead. This happens even when the foreign document is legalised and its authenticity has thus been confirmed.
Secondly, we submit that exclusive reliance on medical tests for age determination is at odds with the lack of reliability of such tests. The biologic variation in human development implies that any assessment of children’s age based on skeletal and dental examination will suffer from considerable inaccuracy. Although we welcome the fact that, following critiques around the accuracy, the Guardianship Service applies a margin of error of two years, scientific research has shown that such margin is not sufficient to effectively accommodate such inaccuracies. In the context of age assessment of unaccompanied minors, this inaccuracy is exacerbated by probable variations in developmental patterns between ethnic and socio-economic groups. This leads to concerns with regard to the prohibition of (indirect) discrimination under Article 14 ECHR.
Thirdly, the Belgian practice of age determination also fails to take into consideration European and international guidance on age assessments of unaccompanied minors. The UN Committee on the Rights of the Child (the Committee), for example, has provided guidance on how children’s rights should be interpreted in the context of age assessment of UAM. In its views adopted in follow-up to fourteen individual complaints, the Committee has developed inter alia the following guidelines: (1) although not prohibited, medical examination is only necessary when no identity documents or other evidence can be produced; (2) medical tests based on bone and dental analysis are considered to be inaccurate because of their large margins of error; (3) a test must include an assessment of the child’s physical and psychological development and must be conducted by experts. At a minimum, in order to assess a person’s psychological maturity, interviews should be conducted; (4) as long as the outcome is not certain, the young person should be given the benefit of the doubt and be considered a minor. Therefore, a guardian or other legal representative should be appointed in order to ensure that the best interests of the child are safeguarded during the age assessment procedure.
Moreover, notwithstanding some diversity in the emphasis made, the Council of Europe and the EU have produced similar guidelines, which can be summarised as follows. First, the Parliamentary Assembly of the Council of Europe (PACE, 6.3.), the Committee of Ministers of the Council of Europe (CoM, principle 3, n° 4) as well as the European Economic and Social Committee (EESC, 1.9.), the Fundamental Rights Agency (FRA) and the European Commission (EC) all call for the appointment of a guardian as soon as possible, and before the age assessment begins. In this light, the EESC (1.10.) and the European Asylum Support Office (EASO (now EUAA), recommendation B.4.) insist on the application of the ‘presumption of minority principle’. Second, according to another repeated recommendation, the use of medical examination should be a last resort (PACE, 6.5.). Such examination is only necessary when other age assessment methods have been exhausted (EP, §15) or when nonmedical methods leave doubt (EASO, recommendation D.2.). Third, in line with the Committee’s conclusion that medical methods based on bone and dental analysis are considered inaccurate (see supra), bone testing has been found to violate the Revised European Social Charter by the European Committee of Social Rights (ECSR) because it is inappropriate and unreliable. For this reason, the EESC has urged all Council of Europe Member States to simply stop using bone testing: ‘Methods we know to be approximate should not be employed just because no reliable verification method is available’ (EESC, 1.12.). Last, the EESC (1.10.), and EASO (recommendation D.2.) both advocate for the need to take into account other evidence, especially documents, when assessing the age.
In view of the above, we submit that the Belgian practice of age determination is not in line with these European and international guidelines. This has also led the UN Committee on the Rights of the Child to criticise the Belgian age assessment practice in its 2019 concluding observations on the children’s rights situation in Belgium. More specifically, the Committee is concerned that ‘the three-phase test used to determine the age of unaccompanied children is intrusive and unreliable’ (§41(a)). Therefore, Belgium should ‘[d]evelop a uniform protocol on age-determination methods that is multidisciplinary, scientifically-based, respectful of children’s rights and used only in cases of serious doubt about the claimed age and in consideration of documentary or other forms of evidence available’ (§42(a)).
Fourthly, the TPI discusses (in a non-exhaustive manner) the significant impact age assessment practices may have on various dimensions of a person’s private life (e.g. on residence procedures, psychological wellbeing and other life domains), as guaranteed by article 8 ECHR.
To start, as for the impact on residence procedures, persons deemed to be above 18 cannot benefit from the additional rights and procedures specifically provided for UAM. As such, when determining the responsible Member State, the additional procedural guarantees for (unaccompanied) minors (art. 6) and more favourable criteria for determining the responsible Member State (art. 8) in the Dublin-III Regulation will not apply. The same is true for the special procedural (e.g. child-friendly interviewing methods) and substantive (e.g. child-specific acts of persecution) guarantees provided to UAM during the asylum procedure. Moreover, when an applicant for international protection continues to claim to be a child, after having been deemed above 18 pursuant to an age assessment test, this is likely to have a negative impact on the assessment of their credibility.
Improper age assessments can also significantly affect the other available residence options. Indeed, in Belgium UAM benefit from a specific residence procedure, which aims at finding a ‘durable solution’ in his or her best interests (art. 61/14, 2° Belgian Aliens Act). Accordingly, when an alleged unaccompanied minor is proclaimed an adult, he is automatically deprived from the possibility to obtain a residence permit in Belgium on the basis of this durable solution procedure. Furthermore, unlike (unaccompanied) minors with international protection (IP) status, adult refugees are no longer entitled to family reunification with their parents in Belgium. Moreover, the alleged minor’s siblings will probably be unable to rely on the Immigration Office’s practice to grant the vast majority of humanitarian visa application submitted by minor siblings of UAM’s with IP status residing in Belgium.
Lastly, as discussed further in the TPI, age assessment processes may have a negative impact on the psychological wellbeing of UAM, and the results of such processes also seriously affect other life domains such as education, medical insurance, the mentoring of a guardian, appropriate reception, etc.
In light of the above, we submit that it would be consistent with the Court’s prior case law to recognise that an exclusive focus on medical age tests in age assessment procedures is incompatible with the State’s obligations under Articles 8 and 14 ECHR.
In this regard, in our TPI we first argue that age assessment procedures fall within the scope of Article 8 ECHR – which also involves respect for a person’s physical integrity (see e.g.: Sýkora v. Czech Republic, §103). Therefore such procedures must comply with this provision’s implicit procedural requirements. In this light, the Court has held that ‘the decision-making process leading to measures of interference’ must be ‘fair and such as to afford due respect to the interests safeguarded to the individual by Article 8’ (Chapman v. UK, §92). This implies that decisions falling within the scope of Article 8 must be based on ‘sufficiently reliable and conclusive evidence’ (see mutatis mutandis: Sýkora v. Czech Republic, §103). As argued in our TPI, the results from skeletal and dental age assessment cannot in themselves be considered as such ‘sufficiently reliable and conclusive evidence’, given the scientific evidence available regarding the considerable inaccuracy of these methods (see supra). In any event, other probative elements (e.g. documents) must always be taken into account.
In addition, the TPI recalls that the Court has already recognised that asylum seekers must be given the benefit of the doubt ‘when it comes to assessing the credibility of their statements and the documents submitted in support thereof’ (N v. Sweden, §53). Therefore, we submit that a similar benefit of the doubt should be applied to migrants claiming to be a minor.
Furthermore, it is our position that age assessment procedures must be conducted in a manner which is in accordance with the principle of the best interests of the child, as the Court has repeatedly emphasised that ‘in all decisions concerning children, their best interests must be paramount’ (Neulinger and Shuruk v. Switzerland, §135). In this light, the Court should draw inspiration from the work of the UN Committee on the Rights of the Child, which has emphasised the need for fair, reliable and unintrusive age assessment methods (see supra).
Finally, with regard to the prohibition of (indirect) discrimination under Article 14 ECHR, we refer inter alia to the Court’s judgment in the case of D.H. and Others v. the Czech Republic. In this case, the Court held that if there is a danger that testing methods may be ethnically biased and that the results are not analysed in the context of the particularities and special characteristics of the persons concerned, these tests cannot serve as a justification for a difference in treatment (§201). Mutatis mutandis, where age assessment methods are used to determine whether a person is a minor, due account must be taken of the risk that certain groups of migrants may, on the basis of their ethnic origin (e.g., non-white), more likely be inaccurately assessed as being adult (see supra). We therefore submit that an exclusive focus on medical age testing does not comply with the requirement under Article 14 ECHR that safeguards must be in place in order to ensure that the particularities and special characteristics of migrants on account of their ethnic origin are adequately taken into account.
For these reasons, we invite the Court to recognise that an exclusive focus on medical age testing is incompatible with the State’s obligations under the right to respect for private life (Article 8 ECHR), alone or in conjunction with the prohibition of discrimination (Article 14 ECHR).
: The team consisted of Mathilde Brackx, Laura Cools, Prof. Dr. Ilse Derluyn, Prof. Dr. Ellen Desmet, Dr. Laurens Lavrysen, Sara Lembrechts, Annelies Nachtergaele and Prof. Dr. Jinske Verhellen