NON-REFOULMENT AND AGE
ASSESSMENT OF MINORS
Kamila Danilovna Shaibakova
Kazan Federal University, Kazan, Russia.
Adel Ilsiyarovich Abdullin
Kazan Federal University, Kazan, Russia.
E
-mail: kamila.shaibakova@gmail.com
Recepción: 05/08/2019 Aceptación: 09/09/2019 Publicación: 23/10/2019
Citación sugerida:
Shaibakova, K.D. y Abdullin, A.I. (2019). Non-refoulment and age assessment of minors.
3C TIC. Cuadernos de desarrollo aplicados a las TIC. Edición Especial, Octubre 2019, 44-57. doi:
https://doi.org/10.17993/3ctic.2019.83-2.44-57
Suggested citation:
Shaibakova, K.D. & Abdullin, A.I. (2019). Non-refoulment and age assessment of
minors. 3C TIC. Cuadernos de desarrollo aplicados a las TIC. Special Issue, October 2019, 44-
57. doi: https://doi.org/10.17993/3ctic.2019.83-2.44-57
3C TIC. Cuadernos de desarrollo aplicados a las TIC. ISSN: 2254-6529
46
ABSTRACT
Situations when legal framework overlaps with the other areas sometimes rise the
important questions. The age assessment is one of those areas where medical age
determination directly aects human rights. A public entity uses a person’s age
to determine the age of a person in the absence of legal evidence. Medical age
assessment applies more frequently in the asylum cases when unaccompanied
minors arrive in a country where he/she seeks asylum. It is claimed that minors
might not be fully honest concerning their age as being minor ease the application
process. This is one of the reasons why medical assessment is required. However,
often the assessment is not correct, and minors are declared of the full legal age.
In addition, ways the medical assessment is carries could violate the rights per se.
Therefore, often minors being surrendered or deported to the countries where
the risks exist in reversal of the principle of no refund.
KEYWORDS
Age assessment, Non-refoulment, Refugee, Asylum, Minor, Children, Human
rights.
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1. INTRODUCTION
The asylum-seeking process often became a tool for abuses. Immigration ocers
and social workers frequently challenge the age and reasons for asylum, claiming
that information might not be truthful. When children come to the territory of a
host state unaccompanied and without valid identication papers, the need of age
assessment often arises. However, often the assessment is not correct, and minors
are declared of the full legal age. Therefore, often minors being surrendered
or deported to the countries where the risks exist in reversal of the essence of
non-refund. However, age determination is awed on the system. The medical
procedures often dangerous for the health of a child and cannot produce any
credible results. The interviews and conversation with social workers cannot give
a denite answer just as in no personal circumstance they are not considered
ethnic and cultural characteristics. Therefore, the system requires changes and
improvements.
2. METHODS
The research question that is important to answer is does age assessment of minors
violates certain human rights? The research question is of a descriptive and normative
character. It is important to identify the type of the research question in order
to choose the most appropriate research design. The rst part of the research
question is a descriptive as it examines how the law is (or lex lata). The article
is looking at the existing law and jurisprudence of national, regional and
international judicial bodies. The case study helps to explain both the process
and consequences of a legal phenomenon via complete observation and analysis
of the cases at stake. The European countries use the age assessment extensively;
therefore, the example of the EU relevant to the article. In order to conduct a
proper literature review, it is highly important to understand what the role of the
literature is. Due to the type of the research question and the traditional legal
nature of the research, academic literature is of a paramount importance. The
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research question could technically be answered based on the analysis of the
case-law alone, however, the academic literature provides relevant background
information and introduces the existent perspectives on the issue.
3. RESULTS AND DISCUSSION
Legal framework. The medical assessment is important in order to give an
opportunity to enjoy a wide range of rights. The appropriate protection regime
applies to asylum-seeker children, who are provided with residence, education,
health care and supportive legal provisions to prohibit child detention, although
they do not belong to persons over the age of eighteen; Adults should be arrested
and made homeless. (Feltz, 2015; Kheirabadi & Mirzaei, 2019).
The rights of the Convention on Refugees, undocumented children and
lonely children are taken away from their families. (hereinafter – RC). Refugee
extradition to countries where his life and liberty are threatened on grounds of
nationality, race, religion, membership of a particular social group or group of
diering political views, is regulated in Article 31 RC with the content of the
refugee return ban. Art. 22 RC prohibits general discrimination. Children with
or without guardians seeking asylum may enjoy the protection and humanitarian
assistance provided for in Article 5 of the Convention on the Rights of the Child.
In addition, the best interests of refugee children and their assessment of their
age should be considered in all childcare activities.
Ensuring that the child is properly identied for the rights mentioned above is
very important. So when refugee children are identied for countries, they should
be immediately identied and separated (Costello & Hancox, 2015; Kashisaz &
Mobaraki, 2018). The identication measures may include an age assessment
(Roscam Abbing, 2011; Kutuev et al., 2017). For example, a grandfather and his
child apply for international convention support, according to the mental state,
age and puberty the child must research if is a margin of interpretation, must be
given the benet of the doubt, the person who claims to be a minor.
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In order to assess age, dierent medical approaches have been taken in dierent
countries. Medical tests that include measurements of puberty or radiological
growth are most commonly used, the medial ends of both collarbones.
Approaches
Compared to the GRULAC and Pyle Atlas or the Tanner and Whitehouse
pictures in order to determine the bone age of the child, Wrist X-rays are taken
which is the most widely used medical methods.
X-rays are taken in dierent ways in dierent countries; the Netherlands, X-rays
of the spoke bone, in France, x-rays of the left hand and wrist are taken and in
Belgium, x-ray of the entire dentistry, and x-rays of the left wrist and collarbone
which is fames a so-called triple test.
In Sweden, the National Board of Forensic Medicine has the task of carrying
out the medical age assessments consisting of X-ray examinations of the knee
joint and wisdom tooth. In practice, it is the dentist and doctor of the contracted
healthcare provider who makes the assessment. In addition, interviews are also
used in order to assess age.
A problem
Firstly, an age assessment has been widely criticized by the human rights lawyers
as being unreliable and providing false results that could deprive a minor of
international protection. For example, wrist x-ray indices based on the Caucasian
American or British middle-class population are stated in the report by the French
National Advisory Ethics Committee. It raises risks for children from other areas
in the world.
Secondly, dierent countries take dierent approaches regarding the age
determination; thus, while in one country a refugee can be declared a minor, in
another country it might not be a case. Thirdly, the issue of free will; If every
asylum seeker refuses to undergo a medical examination, they will be treated
as an adult. Therefore, required informed consent to conduct an assessment
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cannot be given based on a free will of a person. This, of course, has drawn
sharp criticism from the UNHCR, it is held that refusing medical examinations
cannot prevent international protection for asylum children. (Separated Children
in Europe Program, 2012).
Fourthly, most specialist doctors say that age estimation is an estimation and it
is very dicult for those between the ages of 5 and 6, while in other places it
is very important. In fact, the medical methods can only estimate age, and this
will make us fall into the margin of error. No reliable method for pediatricians
at Royal College of England has been able to provide accurate age detection.
They believe that there are several factors that inuence the maturation and the
process of skeletal maturation.
Assessment of age should be provided only with other available evidence that can
be validated by the English Supreme Court if medical tests have failed to provide
denitive proof of age and their most accurate measurement shows at least two
years of error. Thus, the role of interviews conducted by social workers became
an important step. While being a compromise, the interviews with social workers
have been heavily criticized by various NGOs as being subjective interpretations.
An important case in this regard is the Case of Mubilanzila Mayeka and Kaniki
Mitunga v. Belgium (Mayeka, 2006), considered by the ECH Rights. The wrong
treatment of a child might constitute a reversal of Art. 3, the prohibition of
torture and other graft. In that case, the 4-year-old girl, arrived in Belgium as a
refugee child who is not a neighbor, he was detained along with other adults who
caused him depression. Finally, the court concluded that this orphaned child,
who is an illegal immigrant in a foreign country and is not supported by the
family, will certainly be vulnerable. Secondly, the child was sent to the Republic
of the Congo without any supervision of the child there (Mayeka, 2006; Qazvini,
2018; Eslami & Ahmadi, 2019; Jabbari et al., 2019).
The interview assessment being called a good alternative for age determination
raises new problems and challenges to human rights. Firstly, the social workers
and personnel are not suciently trained to assess the age. Secondly, children
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who have been subjected to traumatic experiences, if you want to grow quickly
to survive and do what they have been able to do. Subjective assessment can also
be a case when the age assessed by a person, even if suciently trained. Thus,
the language a child speaks sometimes aect the age assessment. Heaven Crawley
gives examples of children who spoke English to the immigration ocer or social
workers, so it was decided that they are over 18 years old as they could speak good
English (Feltz, 2015; Nakhaee & Nasrabadi, 2019).
Undoubtedly, the medical age assessment can violate the human dignity of a
person, however, it could directly aect the life of a minor as when declared an
adult, a person denied the asylum and shall leave the country and be back to the
home state where the high risks exist (Crawley, 2007). One of the recent cases was
brought to attention in Sweden. In 2015, a boy applied for asylum. He conducted
an age survey at the request of the immigration board, where the growth of his
wisdom teeth and knee joint was examined. The Swedish National Board of
Forensic Medicine concludes that he is 18 or older and his application for asylum
was rejected. This case again showed that the margin of error is extremely high.
It has been stated that one-third of all children assessed by the Swedish National
Forensic Medicine in 2017 were incorrectly classied as adults. Secondly, often
there is a contradiction between dierent types of medical assessments. In the
case, the examination of the boy’s knee joint showed that he was probably over
the age of 18 while the assessment of the wisdom teeth supported him as a minor.
This case also shows that the medical assessment and the asylum decision can
take years. And while being a minor while applying for asylum, a person could
become an adult when the decision will
nally be made. This aects the law to demand and the right to therapy.
Unaccompanied minors are particularly vulnerable: coming to a new country
without family, speaking a dierent language, expertise and assessment of the
social services. Therefore, judicial review should always be available and a
possibility for appeal shall be explained.
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Vivien Felts’ has shown a signicant and credible result because age measurement
is not recognized as harassment or torture, although the European Court
of Human Rights has not yet led a complaint about how to identify age.
Notwithstanding all these interpretations, the examination of the asylum seeker’s
age can violate Article 8 of the European Convention on Human Rights. For
countries that consider systematically evaluating age as the only option, and
systematic formulation, it is likely that this device is not appropriate because of
the high margin of error of the process and the importance of its consequences
for the lives of these children. The absence of other remedies and revisions to the
above will undermine the rights of refugee children in art 13 ECHR.
The Parliamentary Assembly of the CE brought attention to the potential
risks when it comes to age determination: when there is a reasonable doubt,
an independent authority shall make a second opinion, Methods consistent
with ethical indicators in medicine that: It’s less frequent shall be used and the
presumption of the minority shall be guaranteed (UNHCR, 2014). The PACE
highlighted that child protection shall be prioritized rather than immigration
control.
There are still undocumented asylum seekers who are often neglected by
governments during various forms of migration.
4. SUMMARY
Thus, this is a structural problem that in recent years has hit unaccompanied
young people seeking asylum in Europe. Most of the decisions have been made
based on unreliable data. International protection has thus in practice become
inaccessible to many people from one of the most vulnerable groups globally, in
reversal of both the EC and the treaty on the laws of the kid. In accordance with
the international and the local legal framework, a child is entitled to protection.
The incorrect age determination puts a principle of the best interest of a child
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at risk. It is better to pay more attention to raising the level of protection for the
rights of refugee children when assessing their age from their circumstances, as
well as issues such as their ethnic and cultural background.
5. CONCLUSION
The article demonstrated that the current state of the age assessment process needs
to be changed and improved. Trying to make an asylum-seeking process more
eective, the best interest of a child often neglected. The humiliating procedures
violate human dignity, right to privacy. The hindrances to appeal the decision of
refusing the asylum or deportation could violate the law to an impressive therapy
besides justice. The ethical besides cultural specications of a child rarely have
been considered in addition to the application of the medical assessments that
were created for American “Caucasian” population or for a British middle-
class population. Unaccompanied minors are particularly vulnerable: coming
to a new country without family, speaking a dierent language, expertise, often
they do not know how to react and with these bring suspicions to the social and
immigration services. Unfortunately, there are many cases when minors were
denied asylum based on the wrong or supercial age assessment. They are sent
back to the countries where considerable risks exist, therefore the principle of
non-refoulment is also at stake.
6. ACKNOWLEDGEMENTS
The work is performed according to the Russian Government Program of
Competitive Growth of Kazan Federal University.
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