DOI: 10.14197/atr.20121324

Examining the Body through Technology: Age disputes and the UK border control system

Evan Smith and Marinella Marmo

Abstract

In an effort to ascertain whether certain migrants and refugees have been telling the ‘truth’ about their age, the UK border control system has, in the past, relied on the use of skeletal x-ray to estimate the applicant’s age, and in recent years has sought to use dental x-ray for the same purpose. However using x-ray for age assessment purposes has been criticised as inaccurate in providing a reasonable estimate of age and as an unnecessary medical risk, which infringes the human rights of the applicant. This is particularly pertinent in the case of children who are victims of trafficking and unaccompanied young people who may be vulnerable to exploitation, because if declared as children, they can access a higher level of care and protection under childcare law. The article argues that the deferment to the use of x-ray to reveal the ‘truth’ in age disputes is evidence that the border control system is more concerned with keeping ‘undesirable’ people out of the UK than observing the human rights of the vulnerable people who come into contact with the system.

Introduction: The motive of suspicion

A number of scholars have characterised the border as an exceptional place where human rights are deemed by the authorities to be secondary to the maintenance of border security.¹ The UK border control system is no exception; there is a high level of pressure placed upon border control staff to detect people attempting to evade border control procedures. Thus, border control practices often start from the assumption that voluntary or forced migrants with less desirable socio-cultural and economic background are attempting to evade or deceive the system.² The default assumption of the border control system is that certain migrant groups are not who they claim they are when interacting with the system.³ Habib Rahman, Chief Executive of the Joint Council for the Welfare of Immigrants, argues that a ‘culture of disbelief and refusal… exists within the UKBA’.⁴ When the activities, priorities and resources of the border control system seem focussed on the identification of irregular migrants, trafficked persons or asylum seekers with fraudulent claims, the ability of genuine applicants to seek protection is similarly hindered and human rights abuses may occur.

This is not a sudden or contemporary phenomenon.⁵ There has been a long-standing belief in the UK border control system that migrants, particularly from East Europe, Asia and Africa, are falsely seeking protective status as trafficked persons or refugees. This is evidenced by a pervasive assumption of unreliability of the testimony of these groups of migrants,⁶ as well as a suspicion that documentary evidence they provide is likely to be fake, if existent at all. Authorities claim to weigh up decisions ‘on balance of probabilities’, but it is often the case that the border control staff begin from a point of disbelief⁷ and shift the burden of proof onto the ‘body’ of the person applying to enter the country. Under the intense scrutiny of the border control authorities, the focus of the authorities may shift, when convenient, to physical examination, with the body becoming the marker of ‘truth’. Writing about the refugees in the French border control system, Didier Fassin and Estelle d’Hallunin point out that ‘their word is systematically doubted [and] it is their bodies that are questioned’.⁸

Methods of physically intrusive testing to determine the truth in migrants’ claims are well documented to have been a practice of the British border control system. For example, the intrusive virginity check of female migrants from the Indian subcontinent is discussed elsewhere as a further form of mistrust that led to human rights abuses at the border in the 1970s.⁹ Related to this is the use of physical, sexual and mental examinations and the readiness to rely on technology such as x-ray for age assessment, when border officials do not believe irregular migrants who declare that they are under 18. Such an approach is based on the assumption that the migrant is not reliable, and the ‘body’ holds a truth that can be used by the border control staff to further the government’s agenda of expelling or not letting in the unwanted.¹⁰ This is particularly pertinent to child victims of trafficking and unaccompanied young people who, if declared as children, can access a higher level of care and protection under childcare law.

The article mainly focusses on the use of x-ray for age assessment. This is a non-medical use of the technology and is employed solely for the administration of the border control system in an attempt to determine whether a person intercepted by the system is credible. In the following two sections, this article looks at how x-ray was used in the UK border control system in the past (section one), and the continued debate about whether to reintroduce the practice for border control purposes, particularly the decision by the UK Border Agency (UKBA) to trial the use of dental x-ray for age assessment in 2012 (section two). The article will argue that in the UK border control system, the authorities have relied on the use of x-ray in an attempt to extract ‘the truth’ from people whose testimony and documentary evidence is not believed, despite the ethical concerns raised in using medical technology for non-medical purposes and criticisms that x-ray is not a satisfactory tool for assessing age. Within this context, the criminalisation of migrants at the border and the abuse of their human rights have deep historical roots. The original application of x-ray to regular migrants, shown via archival documentation, also demonstrates how different groups of people, including pregnant women and children, were subjected to this practice, with little or no accountability for state action.

The Use of X-ray in the 1970s

In the UK, x-ray was used in controlling immigration from South Asia during the 1960s and 1970s. By this time, the largest number of migrants entering the UK for family reunification was from the Indian subcontinent. Many young men came to the UK from South Asia in the 1950s and early 1960s before the introduction of immigration controls that resulted in a decline in labour migration from this region in the early 1970s.¹¹ The majority of migrants from India, Pakistan and Bangladesh were the families of the young men who had arrived in the UK in the decades before. Several pieces of legislation had been introduced in the 1960s to limit mass migration from the British Commonwealth (the Commonwealth Immigrants Act 1962, which was amended in 1968), but the Immigration Act 1971 still allowed the wives and children (under the age of 18) to join their family members already residing in the UK.

With significant numbers of migrants (especially children under the age of 18) applying to enter the UK under family reconciliation legislation, the UK authorities saw this as a loophole that could be exploited, especially as documentation regarding children was less substantial than for adults (for example, children often did not have their own passports and were simply listed on an adult’s passport). The UK border control staff were especially concerned about young male migrants, who, if they were over the age of 18, would not be allowed to enter the UK (unless they could show that they were ‘still fully dependent’ on their parents) and who were the least ‘desirable’ (due to the saturation of labour capacity) in 1970s Britain.¹² To determine whether migrants were falsely claiming to be under 18 for migration purposes, the UK border control system, particularly at the British High Commissions in South Asia (where applications for entry clearance certificates were first assessed), used x-ray of the wrists to estimate the skeletal age of the applicant. In a detailed report titled Immigration from Bangladesh: Will It Ever End?, F.S. Miles, the High Commissioner in Dacca, wrote to the Foreign and Commonwealth office that the ‘X-ray is the one scientific tool we have against bogus applications’.¹³ Although the practice had occurred for most of the 1970s, it was not until The Guardian published details of gynaecological examinations being conducted on migrating South Asian women in early 1979 that the practice gained visibility. At the height of the ‘virginity testing’ controversy in February 1979,¹⁴ details also emerged that x-ray was being taken of women and children to ascertain the age of suspected ‘bogus’ migrants, as well as for communicable diseases. Although chest x-ray was routinely taken for the screening of communicable diseases such as tuberculosis, skeletal x-ray had no medical use and was being used for administrative purposes only, with most visitors from South Asia looking to reside in the UK for more than six months.

In response to the questions surrounding the use of x-ray in immigration control, the Labour Government acquiesced somewhat in the face of mounting criticism, and the then Home Secretary Merlyn Rees announced that the Chief Medical Officer, Sir Henry Yellowlees, would carry out an inquiry.¹⁵ The final report released to Parliament in April 1980 stated that ‘the use of X-rays of the bony skeleton provides a useful, fairly accurate and acceptable safe way of estimating age of children’ up to the age of 21.¹⁶ Thus, despite criticism from individuals and organisations, the border control system continued to use x-ray to assess the age of migrants.  At the Annual General Meeting of the British Medical Association (BMA) in 1979, a resolution was passed that stated that ‘radiological examinations, carried out solely for administrative and political purposes, are unethical’ and proposed that the BMA ‘make the strongest possible representation to the Government to ban these practices’.¹⁷ A report prepared by Edward White for Lord Avebury, a Liberal member of the House of Lords, cited the past chair of the National Council of Radiation Protection as warning against unnecessary x-ray and claimed that ‘there is no safe level of exposure’. White also questioned the accuracy of age assessment through the use of x-ray, particularly in relation to the use of generalised data on age/bone ratio based on North American children to assess South Asian children.¹⁸

Notwithstanding this, the x-raying of children continued throughout 1980 and 1981. In January 1981, the Foreign Minister Lord Carrington stated in the House of Lords that in the last nine months of 1980, around 360 children under 21 had been x-rayed in Dacca (now known as Dhaka) and around another 300 in Islamabad.¹⁹ The following January, Parliamentary Under-Secretary for the Foreign and Commonwealth Office (FCO), David Trefgarne, announced in the House of Lords that during 1981, approximately 420 children had been x-rayed in Islamabad and 262 children in Dacca.²⁰ However after Yellowlees revised his opinion about the accuracy of these x-rays in early 1982, the Home Secretary Willie Whitelaw announced that the FCO would no longer be carrying out x-ray on children for these purposes.²¹

Disputing Age of Unaccompanied Young People and Revival of X-ray Practice

Considerations surrounding the re-institution of x-ray for the assessment of age in undesirable migrants have ramifications on a number of issues related to broader forms of irregular migration. This is particularly concerning in potential cases of child trafficking. Age assessment of victims of trafficking and unaccompanied young people is fundamental in determining the level of protection the vulnerable person may receive by the destination country. This is a well-established point in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which echoes the UN Convention on the Rights of the Child principle that the child’s best interests are paramount. The requirement of protecting children in recognition of their vulnerability has been embraced in Britain with the Children Act 1989. In 2006, UNICEF issued guidelines to protect child victims of trafficking, reinforcing that the presumption of age should be in favour of the child.²² This was re-emphasised in 2008 when the UN Committee on the Rights of the Child recommended that benefit of the doubt should be the prevailing approach to age disputed cases.²³

Yet, Larissa Barrie and Philip Mendes claim that despite this recommendation, in Britain border control aims are prioritised over the principle of child protection.²⁴ The clash between border protection and protection of child rights is evident in the number of age-related disputes by the Home Office. According to recent data, in 2012 there were 328 age disputes of asylum applicants who claimed to be children, as compared to 374 such cases in 2011. This 12 per cent decrease is flagged by the Home Office as a positive in tackling a culture of disbelief. However, this trend actually reflects the 16 per cent drop in unaccompanied young people’s asylum applications received in 2012 (1,168 compared to 1,398 in 2011),²⁵ rather than a decline in the culture of disbelief. In the past, the Home Office suggested that the number of age disputes is ‘illustrative of a serious level of abuse of the [asylum] system’,²⁶ clearly highlighting the applicants’ dubious degree of credibility. This suspicion is partially fuelled by the lack of reliable documents and any other form of identification of the subjects involved. Therefore, when an immigration officer is suspicious of a false claim, a means to assess age is needed to make a decision. Age determination is usually carried out with the help of professionals including medical doctors, psychologists and social workers, and should take into account the physical, sexual and mental maturity of the child as well as other cultural and environmental factors.²⁷ However, very often the circumstances experienced by these young people accelerate their maturing process,²⁸ meaning that assessments can lack precision and can lead to long disputes, often prolonged by judicial intervention.

The idea that x-ray can offer a reliable and quick solution has been the subject of attention by the Home Office for a number of years. However, the desire of the state to rely on x-ray has been strongly contested by multiple parties. Since Whitelaw’s 1982 decision to end the use of x-ray for the assessment of age in migrant children, the issue has been referred to from time to time by parliamentarians. For example, in the House of Lords debate on the Asylum and Immigration Bill 1996, Lord Avebury sought to insert an amendment which would effectively ban the use of x-ray for the assessment of age, but was rebuffed by Lord David Renton who said that ‘[i]t is difficult for the immigration officers, medical people, or anyone to say what those people’s ages really are. If the X-ray can decide the matter, we should keep an open mind on the issue.’²⁹ The Home Office stated in 2007: ‘There does appear to have been more recent research that indicates x-ray analysis (of the teeth and collar and wrist bones) can be a more reliable means of determining age than was once thought.’³⁰ The position of the Home Office is also backed by some EU member states that ‘regularly use these techniques for immigration purposes’.³¹  In Belgium, Denmark, Germany, Malta, and the Netherlands, the use of x-ray of children’s bones (wrist bone, collar bone or teeth) to determine age in trafficking and other migration-related claims is allowed.³² This matter was brought up again for discussion in 2009, and most recently has been revived by the UKBA in early 2012.³³

In March 2012, Zilla Bowell, the Director of Asylum for the UKBA, wrote in a letter, reproduced on the website of the Immigration Law Practitioners’ Association, to various stakeholders announcing that there would be a three-month trial of using dental x-ray to determine the age of asylum applicants. The letter said that many would ‘be aware of the difficulties that arise when [UKBA] are not able to establish, with any certainty, the age of an asylum applicant’ and that the UKBA were ‘keen to utilise any appropriate tool which can increase our levels of certainty (as long as it does not have a negative impact on the individual in safeguarding terms, of course)’. The trial was aimed at people assessed as adults, ‘but who continue to contend that they are children,’ and the UKBA argued that ‘participation in the pilot is completely voluntary’.³⁴

However, this proposed trial received significant criticism from immigration lawyers, medical and dental professionals and the four UK children’s commissioners, who were quoted in The Guardian as claiming the proposed actions were ‘a clear breach of the rights of vulnerable children and young people and may, in fact, be illegal’.³⁵ Damian Green, the Conservative Minister for Immigration, admitted in parliament that the UKBA had not discussed the trial with the Equality and Human Rights Commission, but had ‘sought legal advice on the legality of the trial’.³⁶ A month later, Bowell sent another letter announcing that the proposed trial was being halted, after the Chief Medical Officer suggested that the UKBA discuss the trial with the National Research Ethics Service (NRES). According to Bowell, the NRES ‘concluded that our proposed trial constitutes “research” and that, as such, it requires the approval of a research committee before it can proceed’. Bowell argued that this was ‘contrary to their expectations’, explaining that the view of the UKBA was that ‘the trial did not constitute “research” and ethical approval was not therefore necessary’. The Guardian called this ‘a profound embarrassment for the Home Office’ and claimed that the ‘Home Office [had] refused for a month to publicly reveal whether the agency had ever sought ethical permission for the programme’.³⁷ Both Bowell and the Minister for Families, Sarah Teather, said that no x-ray had yet taken place,³⁸ and the UKBA were looking into whether to proceed with the trial in the future.

Aynsley-Green, et al. point out the various controversial issues surrounding the assessment of age of young people in immigration control, and declare that ‘age assessment practice in the UK remains highly inconsistent’ and is therefore unreliable for border control purposes.³⁹ They highlight a primary aspect of abuse in what can be framed as a violation of conditions of health as well as medical care.⁴⁰ X-ray gives a dose of radiation, and the non-medical use of x-ray is neither safe nor ethical on these grounds. They state that the x-ray is ‘driven solely by a government’s administrative convenience and are without therapeutic benefit to the individual’.⁴¹ They also point to the unethical imposition of x-ray without fully informed consent. An examination is imposed on a powerless subject who is in no position to negotiate. 

Conclusion: Does the border control system lack institutional memory?

The UK’s first National Security Strategy, issued in 2008, assured the public that the government intended to implement a strong, comprehensive, and technologically enhanced border policy.⁴² The lack of confirmation that the x-ray process will not be reintroduced raises concerns on three levels. First, it shows that the border control system maintains the idea of shifting the burden of proof onto the body of individual applicants. Applicants are deemed inherently untrustworthy; therefore, the narrative they offer is ignored and the body is explored to search the truth: the body becomes the site of evidence.⁴³ Second, the institutional memory of the system does not stretch very far, as it attempts to recycle ideas that were dismissed as unsatisfactory thirty years ago. This suggests that despite legal and human rights improvement, policies of crime control and border security are still prioritised over protection of people. Third, assessing age should be part of a positive process of assessing eligibility for and granting protection of human rights, not a process of denial and rejection.

As long as emphasis within the border control system lies in attempting to maintain a ‘secure’ border and the idea of the border as separating the domestic British population from the threat of the migrant ‘other’ is fostered, there will be strict scrutiny placed upon those who attempt to navigate the system. In this situation, the applicant must submit to the interrogations of the system, while the government explores all available avenues to satisfy the administration of a ‘firm’ border control system. Lord Renton’s quote on keeping an ‘open mind’ on the matter of using x-ray, despite the criticisms, for immigration purposes highlights this. The Joint Council for the Welfare of Immigrants wrote in 1985:

Entry clearance procedures abroad are operated on the assumption that they need to be directed towards the detection of bogus applicants even if in the process genuine applicants are refused. This licenses entry clearance officers to behave like a fraud squad, rather than as neutral officials processing applications from the wives and children of British and settled men.⁴⁴

The authors of this article would argue that this still seems to be the case now.

Notes: