In 2007, the Home Office consulted on a proposal for an automatic adverse inference to be drawn from an individual’s refusal to submit to a DAA (Planning better outcomes and support for unaccompanied asylum seeking children, Home Office, February 2007; the Home Office subsequently proposed, in September of that year, a new rule 352 of the Immigration Rules). In response to the consultation, multiple medical and professional bodies voiced strong opposition to the use of dental X-rays.1See, for example, the British Dental Association’s (BDA’s) response to the consultation (which was reiterated on 23 November 2015: ‘X-rays for young asylum seekers: inaccurate and unethical’, BDA news article, 23 November 2015). See also Nicholas Blake QC and Charlotte Kilroy, In the matter of a proposed amendment to the Immigration Rules (7 November 2007); letter from Sir Liam Donaldson, chief medical officer at the Department of Health to the minister of state for borders and immigration dated 21 October 2008; and Dr Heaven Crawley, When is a child not a child? Asylum, age disputes and the process of age assessment (ILPA, May 2007). The Home Office later abandoned its proposal.

On 28 March 2012, the Home Office announced its intention to pilot a trial with Croydon LBC to offer age-disputed young people the opportunity to undergo a DAA conducted by Professor Graham Roberts.2Letter dated 28 March 2012 from Zilla Bowell, UK Border Agency, to stakeholders. This pilot proposal was later abandoned.

In October 2015, the Association of Directors of Children’s Services produced best practice guidance for social workers conducting age assessments (Age assessment guidance: guidance to assist social workers and their managers in undertaking age assessments in England) in which it was expressly stated:

In R (AM) v Solihull MBC [2012] UKUT 118 (IAC), the assessing social worker expressed caution about accepting dental evidence as providing proof of adulthood. Although the judges felt it was possible to attach some weight to dental findings, the tribunal went no further than that and cautioned against the dangers of this sort of material.

In R (A) v Croydon LBC [2015] UKUT 168 (IAC), the tribunal considered the claimant’s refusal to consent to a DAA. UTJ Peter Lane refused to make a preliminary ruling that such a refusal was unreasonable on the basis that to do so would be contrary to the tribunal’s overriding objectives (Tribunal Procedure (Upper Tribunal) Rules 2008 SI No 2698 r2). The judge held that the tribunal could not compel an individual to undergo a dental examination involving the taking of X-rays.

In December 2015, in the case of Y v Croydon LBC JR/8565/2015, UTJ McGeachy refused to grant Croydon’s application to strike out Y’s claim as a result of his refusal, inter alia, to submit to a dental X-ray conducted by Professor Roberts. The Court of Appeal allowed Croydon’s subsequent appeal ([2016] EWCA Civ 398), holding that Y’s refusal was unreasonable. However, it refused to consider or comment on whether or not this method of assessing age using mean data taken from dental X-rays was reliable.

In R (ZM and SK) v Croydon LBC [2016] UKUT 559 (IAC), the reliability of dental X-ray evidence and analysis produced by Professor Roberts and his colleague Dr Victoria Lucas, and relied on by Croydon, was tested. The claimants relied on an expert report produced by Professor Timothy Cole. The key points of that judgment were:

In R (FA) v Ealing LBC JR/12123/2016, Ealing applied to instruct Professor Roberts to carry out a dental X-ray age assessment. FA opposed the application on the basis that it would not assist the tribunal; on his own account he was 17 years and eight months old, and Ealing had assessed him as being over 18 without further specificity. Taking into account the criticisms of the statistical analysis in ZM and SK, UTJ Coker held that the resolution of a four-month age difference could not be achieved by a DAA. She refused Ealing’s application but went on to consider, inter alia, the risk of radiation involved in DAAs. Although not of itself sufficient to prohibit X-rays, it is a factor to be considered. It was noted that the Ionising Radiation (Medical Exposure) Regulations 2000 SI No 1059 were not brought to the attention of the vice-president in ZM and SK. Where the advantages of a dental age examination are minimal, because of the small age gap, the test of ‘sufficient net benefit’ within the regulations is not met.

In AS v Kent CC JR/11261/2016 (promulgated on 11 September 2017) Professor Roberts’ attempt to assess age based on dental X-rays (in particular on mandibular maturity markers (MMMs)) was further criticised. It was held that, on this occasion, Professor Roberts was an unreliable witness and that MMMs were of no use in assessing age (para 120). The following critical observations were made by the UT:

Cases concerning age assessment procedures have increasingly been challenged in the European courts (see, for example, Yilmaz v Turkey App No 36369/06, 1 February 2011 (French), (English summary), where the European Court of Human Rights (ECtHR) considered the question of informed consent to an invasive medical examination in the context of age assessment).3A case against Italy is also pending before the ECtHR: Darboe and Camara v Italy App No 5797/17.

A report by the Council of Europe’s Children’s Rights Division (Age assessment: Council of Europe member states’ policies, procedures and practices respectful of children’s rights in the context of migration, September 2017) mapped the procedures, practices and methods for assessing the age of unaccompanied children across Europe. It raised concerns over the inaccuracies of age assessments of migrants related to widely different and often inadequate procedures and safeguards. It also expressed unease about the use of medical assessments to ascertain individuals’ ages.

A Council of Europe survey on which some of the report was based worryingly revealed that medical examinations to assess age are commonly used in Europe, with most respondents combining different types of medical examination: 24 countries use carpal X-ray; 19 countries use dental examinations and dental X-ray; 15 countries use physical development examinations; nine countries use collar X-ray; and seven countries use sexual maturity assessments (page 28, para 132). It seems the UK did not complete this survey.

The report (correctly) cautions:

It is clear from the most recent UT judgments that the use of dental X-rays in assessing age is unreliable and of no assistance to judges or social workers in determining age (save in unusual circumstances involving a very young child). Consequently, this evidence is unlikely to feature in any ongoing or future proceedings. Local authorities will struggle to pursue or succeed in strike out applications founded on a refusal to submit to a dental X-ray or in seeking an adverse inference to be drawn from such a refusal. In addition, practitioners could rely on the ‘sufficient net benefit’ test in the Ionising Radiation (Medical Exposure) Regulations 2000. It is imperative that lawyers in the UK and EU pursue challenges to ensure that vital standards and safeguards for age assessment procedures are upheld and to ensure that they are integrated into child protection systems that promote the best interests of the child.