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The noble Lord made the point that in all probability few people continue to be caught by this. The noble Lord, Lord Avebury, corrected what he thought I was saying at Question Time the other week, when I said that I thought there might be about 3,000. I am not sure that I put it in those terms, but I accept that the number is likely to be low. That is our case. I am sure that noble Lords will find plenty to disagree with. I am grateful to the noble Lord, Lord

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Goodhart, for raising this issue. No doubt he will withdraw his amendment today and consider coming back with it at a later date.

Baroness Anelay of St Johns: We are all struggling to hear from the Minister the virtue that attaches to 1961. If he were able to give the Committee a justification for that date, he might assist not only the Committee but, I suspect, the House at a later stage. I have this foreboding that this matter is not going to go away.

Lord Higgins: I would be inclined to adopt a rather simpler approach than my noble friend. The Minister has not explained why we now need any cut-off point. Why do we not simply give right of abode or citizenship to those who have a foreign father and a British mother? The noble Lord gets all tied up in dates and when we did this and when we did that, but he has not explained—I am sorry if it is not in his brief—why we need a cut-off point.

Lord Bassam of Brighton: Reflecting on that question is important. I think we probably had in mind a wide range of circumstances that needed to be catered for had the provision been more extensive when my noble friend Lord Filkin dealt with it back in 2002. The historic discrimination in the nationality legislation affected not only women who were British by birth in the United Kingdom but those whose citizenship derived from a connection with some other part of the former British Empire. In some families, several generations may have been excluded from our citizenship through a combination of the statutory discrimination itself—that is what it was—and certain life choices that were made as a consequence of it. I return to the point that any geographical or temporal limitation in the new registration provision would have produced hard cases, whether the issue is 7 February 1961 or 31 December 1948/1 January 1949. The Government at the time felt that they were justified in drawing a line around those who, had they applied in time, would have registered as citizens under the terms of the policy announced in 1979. That was one of the anomalies that was corrected at that point. I accept that there is an element of discrimination wherever there is a cut-off point, but there was some logic originally to having a cut-off point, as I have explained, and that was the logic that was adduced then.

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Lord Higgins: I feel bound to say that that really is not good enough. We asked whether there was some hidden agenda, which perhaps we felt was something to do with some previous colonial situation, but as the Minister says there is no hidden agenda, I understand that that is not the situation at the moment. Nothing that he has just said in any way justifies having to have a cut-off point. We have not heard a single reason why we have to have a cut-off

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point now, as opposed to the past and to various situations that have changed in the past, or why we cannot simply remove it.

Lord Goodhart: Perhaps I should start by talking about the cut-off point. I tried to explain earlier in my speech why I did not go back to before 1 January 1949. The reason is that, until that date, the great majority of British women who married foreigners would have acquired their husband’s nationality and lost their British nationality on marriage. Before 1949, the right to British citizenship might have been available only in a very small and rather random collection of cases, so I do not intend to change that outlook.

Lord Bassam of Brighton: Am I right in thinking that, unlike the noble Lord, Lord Higgins, the noble Lord, Lord Goodhart, accepts that there should be a cut-off point?

Lord Goodhart: I accept that there should be a cut-off point because of the nature of the rights that existed before and after 1949, not simply on the ground that there must be a cut-off point somewhere. I accept it because of the different legal situation that British women marrying foreigners were in before and after 1949.

Lord Higgins: I am trying to understand the noble Lord’s point. Why do we have to have a cut-off point now?

Lord Goodhart: I would be very happy if I thought that the circumstances made it plainly desirable to dispense with one. I simply think that giving British citizenship to the child of a couple, neither of whom had British citizenship on the date of the child’s birth, would present serious problems and would not be acceptable. If we were to go back to before 1949, we would have to limit the right to citizenship to the relatively small numbers of people who have a foreign father, a mother who was a British citizen on the date of the child’s birth, and who were born abroad. That would give rise to anomalies. However, this is far from being the most important issue in this matter.

The Minister put up no serious arguments whatsoever for rejecting the amendment. Neither he nor, no doubt, those who have briefed him on this matter have been able to come up with anything which gives the slightest justification for the present position. The Minister said that the legacy cannot be ignored. Of course the legacy cannot be ignored, but where the legacy is itself an unfair and unjustifiable one, as here, then surely what we mean when we say, “the legacy cannot be ignored”, is that we must correct the injustice done by the original legislation.

The argument remains an extremely strong one. In those circumstances, and in view of the support that it has received in the Moses Room, it is my intention to bring the amendment back on Report so that it can be argued on the Floor of your Lordships’ House.

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Baroness Anelay of St Johns: The Chairman was a little swift for me, as was the noble Lord, Lord Goodhart, who was being succinct in his withdrawal of the amendment. Having listened and trying to be an impartial observer in this but finding myself more and more confused by some of the arguments—and having not only carefully read the Official Report of the previous debates, but having sat through all the debates since 2002—I wonder whether the Minister might consider a meeting with noble Lords on an all-party basis to see whether there is any way we might take this forward. I appreciate that we have some time before Report, which cannot be until October. Might the noble Lord, Lord Goodhart, be prepared to offer that as a way forward to the Minister?

Lord Goodhart: I certainly agree. As I understand it, we are due to start Report in the first week after the Recess. Of course, that gives us time. I should have said that I hope that the Home Office will be prepared to consider further whether this reform cannot be accepted. I would of course be more than happy to take part in any discussion to consider the issues and try to persuade the Government, behind the scenes, that they really ought to do this.

Lord Bassam of Brighton: First, rule number one is never look a gift horse in the mouth. Secondly, I have heard all sides of the Committee on this. Thirdly, I have drawn the conclusion that we ought at least to have an all-party discussion on it to see if there is some way to ensure that there is greater rationality behind the position we are in. That would probably be most helpful.

Lord Goodhart: I am glad to hear that, and I hope that rationality will duly prevail. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 43:

The noble Lord said: The amendment concerns the use of X-rays for the purpose of age determination in immigration control, a practice which was terminated by the Home Secretary, Mr William Whitelaw as he then was, on 22 February 1982. That followed the publication of a report by my office on the subject in June 1981, copies of which are available to the Committee on the Table over there—unlike some of the documents that been referred to by the Minister. It is good practice when one is referring to documents in Grand Committee to make them available so that, if Members want to look at them, they can do so during the discussion.

That report found that the use of X-rays—

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Lord Bassam of Brighton: I congratulate the noble Lord for circulating the document, which has been around since 1981. No one in the Committee can complain that they have not seen it or had an opportunity to read it. It is very useful.

Lord Avebury: The noble Lord may say that, but in the consultation document on the process of age determination, there was no reference to the 1981 report. Therefore, I must be given leave to suspect that there are people in the Minister’s department who were not aware of its existence. That report was endorsed at the time by an ad hoc medico-legal committee which consisted of representatives of the BMA, the TUC, law centres, regional health authorities, the JCWI and individual lawyers and doctors.

In the Government’s consultation document, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children, there is a discussion of the problem of age determination, so that eligibility for children's services and for enhanced access to legal aid, which we were discussing a few minutes ago, can be decided. It is also necessary, as we discussed on Amendment No. 41, to determine whether a child is over or under the age of 16 and a half at the date of his original application. The Government say that in 2005, 2,425 asylum seekers claimed to be under 18, but were initially deemed by immigration officers to be adults. Some of them were later reclassified as children following more thorough assessment by social workers, but the document claimed that the number of age-disputed cases was illustrative of a serious level of abuse of the system. While not disputing that some pretend to be younger than they are, the fact that social workers frequently have to correct the initial assessment by immigration officers may be said to indicate that a systematic misjudging by those officers is built into the system.

I very much welcome the proposals by ILPA in their report, When is a Child not a Child?, launched in Committee Room 17 on Tuesday, for reducing the number of age disputed cases, and for referring all those cases where agreement is not reached between the asylum seeker and the immigration officer to a regional age assessment centre, independent of the local authorities. The head of the BIA, Ms Lin Homer, who must be given her due for poking her head into the lion’s den by attending the launch, said that the BIA was interested in the idea, which might be related to the Government’s proposal for specialist authorities to whom UASC will be directed in the future, subject to the agreement of the authorities concerned, as we were discussing earlier. The Government envisage that there would be 50 to 60 such authorities, each caring for about 100 UASC, all outside London and the south-east, and all having previous experience of dealing with a reasonable number of UASC. That probably limits the choice to authorities in five regions, so there would be about one regional age-assessment centre to 20 specialist authorities.

Although it sounded as though the BIA was firmly committed to the use of dental X-rays as an aid to age

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determination, Ms Homer said at that meeting that no decision had been taken, and that the BIA was still consulting on it. However, I believe—the Minister may confirm this—that they have already invested in some equipment and have been surreptitiously trialling the concept at some entry ports. I received no answer to the question of whether they had proactively asked the BMA, the BDA and the Royal Colleges on the matter, but Sir Al Aynsley-Green, the Children’s Commissioner, who was scathing about the idea in his foreword to the ILPA report, said that none of the professors of paediatric endocrinology to whom he had spoken were in favour of the use of X-rays, and he could not imagine any scenario in which dental X-rays might supplement other methods of age determination.

We recognise that procedures for age assessment are necessary to ensure that, as far as possible, children are treated as children, and adults who claim to be children are not. This is a problem facing every jurisdiction, and there is no best practice.

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Extraordinarily, in the UK there is no statutory procedure or guidance, but the London boroughs of Hillingdon and Croydon, which have dealt with the largest number of UASC have jointly developed their own pro forma. This has been approved by the courts and is now being used by most SSDs, but the ILPA research showed that none had been given training on how to use it.

The way forward would be for the Government now to take powers to enact statutory guidelines by order, building on the experience since the Merton judgment in 2004, with the flexibility of being able to vary them from time to time as further experience may suggest. In this way, the process of age determination can be improved and standardised without returning to the unethical and inaccurate subjection of children to ionising radiation, which was abandoned by a Conservative Government more than 25 years ago. I beg to move.

Baroness Anelay of St Johns: The noble Lord, Lord Avebury, is referring to when the then right honourable and later my noble friend Lord Whitelaw abandoned a particular method of assessing age. I appreciate that in that time there have been significant changes in technology, and I anticipate that the Minister will repeat what we have been told at Question Time and on the Floor of the House on occasions; namely, that the methods are safer and more accurate in their assessments.

I have some difficulty with the amendment proposed by the noble Lord, Lord Avebury, because the way in which it is drafted did not give us the opportunity to consider what he was going to propose in his speech as alternative methods. He simply abolishes something. He did not point us in the direction of what might come in as an alternative. I am very interested in his proposals and wish to consider what he has said between now and Report.

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We have to look very carefully at what the noble Lord has said. We must have procedures for age assessment. They have to be robust, safe, human-rights compliant and proportionate. Above all, they must ensure that those who seek to come here by pretending that they are not the age they say are screened out. It is not fair on children who wish to come here, if the system is abused. I wonder whether the noble Lord, Lord Avebury, or the Minister, can assist me in saying what the practice and procedure is elsewhere in the EU, and whether there is any proven practice that appears to be more successful than ours.

Certainly, I am aware that there is a great advantage for those who claim to be younger than they are if they come here and successfully gain the right to remain. One has to be aware of the reality. We must not seek to introduce systems that will unfairly benefit those who should not be here. We must ensure that children whom we would wish to enable to have the right to be here are not put in a position of being treated in a way that is injurious to their health, and we must not find that the system does not work. It would be interesting to hear from the Minister about advances in technology because in the past those arguments have been very persuasive.

Lord Roberts of Llandudno: X-raying anyone is an easy way to assess people, but you can jump to conclusions by taking the easy way. There is evidence that X-rays of teeth are unreliable for showing age because the environment, nutrition, ethnicity and race affect the result. It would be unfair, as well as unreliable and uncertain, to accept this criteria. Some years ago, just after the Ethiopian famine, I met with some of the survivors and I held some of the young babies in my arms. They were so different from children in the United Kingdom. They were nearly weightless; they were just skin and bone. Their development was going to be so different from the development of children in Wales and in other places because they did not have—

Baroness Anelay of St Johns: I am grateful to the noble Lord for giving way. Has he also looked at evidence that is adduced in family courts, where paediatricians have to make assessments on the basis of screening techniques and X-rays of children who have been subject to malnutrition and abuse in this country? They have determined that one can use X-rays accurately to determine a child’s age, set against the knowledge of the experience the child has gone through.

Lord Roberts of Llandudno: The evidence that the noble Baroness mentioned is not 100 per cent accepted. For instance, it is not accepted by those who claim that other things, such as nutrition, affect the growth and development of a child.

Baroness Anelay of St Johns: As a magistrate who has had to sit through many training sessions for paediatricians and who has gained by the experience, I think that I should speak up for them and say that they have to take account of a person’s nutritional

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background. There is malnutrition and abuse in this country, and paediatricians in this country have extensive experience of how to interpret X-rays against a person’s background and medical condition.

Lord Roberts of Llandudno: I accept the evidence that the noble Baroness presents to the Committee. In Ethiopia—not today—and in other places such as Darfur, children do not have the nutrition and support that they have in the United Kingdom. So we come to how we determine a child’s age. Do we do it from documentation? A child from that sort of area may have no documentation. A birth certificate could be a counterfeit. We do not know, so we have to look at another way.

In 2005, 2,965 child applicants for admission to the UK had their age accepted, but in 45 per cent of cases—2,424 applicants—there was a dispute about age. We suggest that an immediate assessment is not reliable or fair. When a child comes here, he is traumatised and vulnerable. His background is so difficult, and the new culture that he will experience in the UK is so vastly different from what he has had in the past that we must give him time to settle in. A continuous assessment should be made while the child is settling in the UK. If we put consideration of age on hold, we could have regional age assessment centres where skilled social workers and medical professionals could see how the child develops and could more reliably assess age.

We suggest that an immediate decision is not needed. We need to realise how sensitive this issue is and that that child needs support and love, which he may not have had in the past. As time goes on, the age of the child can be assessed. That might be more reliable, although I do not know whether it would be 100 per cent reliable because we look at people of different ages in our own House and say, “Is he really 103?”. Age differs, so we must take our time and not decide immediately. We should let the child settle down, and then skilled people will be able to make a fairer assessment.

Lord Bassam of Brighton: This is carrying on a debate that we had in another forum, although the debate in Question Time in the House a few weeks ago was more telescopic. The lines of argument that are being advanced in the debate this evening are very similar. That is not to say that they are not highly relevant, because they obviously are. As the noble Baroness said, the amendment seeks to strike out the capacity to use dental X-rays as a tool in age assessment, whereas the noble Lord argued in part that we should have some form of statutory guidance that would cover the use of dental X-rays.

Lord Avebury: No, I did not. I suggested sufficiently developed statutory guidance along the lines of the Hillingdon pro forma. So instead of having two local authorities offering their procedures, as they do at the moment—these procedures, as I said, were adopted by the courts in the Merton case—the Government should develop those procedures and institute them throughout the country

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so that there is a uniform approach to age determination but one that does not include dental X-rays.

Lord Bassam of Brighton: Oh I see. I had misunderstood, or perhaps misheard, what the noble Lord said. So the noble Lord wants to strike out dental X-rays.

Lord Avebury: Of course I do.

Lord Bassam of Brighton: That is fine. There still seems to be a slight contradiction, but I will move on.

Lord Avebury: There is no contradiction at all.

Lord Bassam of Brighton: I will move on. I certainly understand that there are concerns about proposals in our recent consultation paper, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children. One of our proposals—it is just a proposal—is to make greater use of dental X-rays to assess the age of young asylum seekers where that is in doubt. I do not think that there is a great deal of argument—

Lord Avebury: Did the Minister say that there was an intention to go ahead with dental X-rays, because Lin Homer said at the meeting upstairs only last week that no decision had been taken?

Lord Bassam of Brighton: I used the term “proposal”, which does not contradict what the noble Lord said that Lin Homer had said. I think it would be helpful if I set out the background. I do not think that there is much of an issue here about the importance of age determination, because there is evidence of very serious abuse of the asylum and support system by adults claiming to be children. I believe that all Members of the Committee would accept that that can lead to very serious child protection issues, as it can result in adults being placed in accommodation designed for children, with all the potential that that opens up for abuse. There are also cases of children having been incorrectly assessed as adults, and thus having been placed in adult accommodation, thereby placing them at possible risk. Both the Government and local authorities need to work together to improve age assessment procedures, which is precisely why we have been considering this proposal.

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