Netherland
THE WORK
Complaint about method of assessment of the age of unaccompanied asylum-seeking minors well founded
In a recent report the National Ombudsman conducted an investigation into the way the age of unaccompanied young asylum seekers was determined. The conclusion of the investigation is that the Immigration and Naturalisation Service (IND) cannot determine if young asylum seekers are aged 18, on the basis of an x-ray of their collarbones. In his report the National Ombudsman also concluded that the IND did not act properly when it ignored the objections of the Health Care Inspectorate against use of the examination for age determination purposes. Furthermore the IND did not take heed of the advice of the Inspectorate to set up a medical ethical committee that would monitor the age investigation. The National Ombudsman started the investigation after he received a complaint from an interest group.
The Dutch policy on the admittance of unaccompanied asylum-seeking minors is rather flexible. Unaccompanied young asylum seekers are often already in a very difficult position. Therefore in the Netherlands, special rules apply to them. This means that a young asylum seeker, will not be sent back to his country of origin if it is unsure whether appropriate care is available there. During the investigation into his admittance, the young asylum seeker will receive special care in special housing facilities. All this is different for adult asylum seekers. So if a young asylum seeker can prove that he or she is under 18 (i.e. a minor under Dutch legislation) they get a different treatment than other asylum seekers. A special regime for unaccompanied young asylum-seeking minors can also be found in other European countries, for instance the United Kingdom. Whether an asylum seeker is a minor, meaning younger than 18, cannot always be determined beforehand. Many asylum seekers enter the country without documents with which they can prove their identity and age. Since 1999 the IND uses a new way of determining the age of asylum seekers who do not have any identification on them and whose claim on being a minor is doubted. This method consists of taking an x-ray of the asylum seekers’ collarbone.
Examination not to be used to determine age
The Inspectorate was asked to advice about this new way of determining the age of young asylum seekers. The Inspectorate was of the opinion that only if an x-ray shows that the collarbone of the asylum seeker is completely closed, any scientific conclusion could be drawn. When the collarbone is completely closed, it is generally assumed that the person is at least 20 years of age. The investigation by the National Ombudsman revealed however, that the IND uses the examination to determine other age categories as well. For instance whether an asylum seeking minor is 18 or not. As the determination of the age is of the greatest importance to an unaccompanied asylum seeking minor, the National Ombudsman does not find reason to continue the collarbone x-ray as a reliable method. He recommends the IND to stop using this method and that in the future they only use it to determine whether an asylum seeker is at least 20 years or older.
IND ignores objections of the Inspectorate
Well before the IND began to use the collarbone method in 1999, the age examination had been subject of a medical ethical debate. The IND therefore had asked the Inspectorate in 1998 to give an advice about the usefulness of this method for their work. The Inspectorate informed the IND that it had deep reservations about the effectiveness, the reliability and the proportionality of the method. Notwithstanding the IND went ahead with the method and began taking x-rays of young asylum seekers. The IND did not, however, give any reason why it began using the x-rays in spite of the advice from the Inspectorate.
No medical ethical commission
All age examinations are done by one and the same IND investigator. For this reason also the Inspectorate had insisted on a medical ethical commission that would monitor these examinations. At first the IND promised to do so. The National Ombudsman discovered that such a commission never was established, despite the continued insistence of the Inspectorate that such a commission be set up. The National Ombudsman criticises the way the IND has handled the matter and is of the opinion that the IND should have informed the Inspectorate of its change of view. The Ombudsman furthermore comes to the conclusion that as the results of the examinations are of such major influence on the application, the IND has the duty to maintain a careful and secure procedure. The National Ombudsman therefore recommends the IND to still set up a commission, that can monitor the proper use of the ethical and scientific norms in the age examination.
Actions of the Inspectorate
The National Ombudsman also looked into the question whether the Inspectorate was at fault when it did not try to stop the age examinations. The Ombudsman is of the opinion that the Inspectorate has acted within the boundaries of its competence as there was not an immediate threat to public health and the problem did not directly concern medical care. The National Ombudsman considers that the Inspectorate nevertheless could have acted as it was involved in the age examination already.
The National Ombudsman did not have any response from the Ministry yet, when this was written.
Update special investigation
In the last newsletter, you were informed about the special investigation conducted by the National Ombudsman concerning the delays in processing asylum applications from suspected human rights violators. The investigation looked into the failure of the Immigration and Naturalisation Service (IND) to meet the statutory deadlines for processing asylum applications which have to be screened on serious crimes or human rights violations by the applicants (article 1F of the Convention relating to the status of refugees, compel member states to do so). The National Ombudsman recommended the State Secretary devise a plan of action to process 1F cases more efficiently and clear the backlog within a year. He responded he would do so. On 9 January this year the Ombudsman received the plan of action which, among other things, consists of changing the way the applications are registered. The State Secretary hopes to have cleared the back log by October 2003.
International contacts
On 2 October 2002 Roel Fernhout received the Commissioner for Human Rights of the Russian Federation, mr. Oleg Mironov, and delegation.
Roel Fernhout and his senior advisor, Stephan Sjouke, were invited by the Romanias People’s Advocate, Prof. Dr. Ioan Muraru to pay a working visit to his institute from 14-16 November 2002. Purpose of this visit was to get better acquainted and to explore the possibility of a future cooperation.
Mr. Fernhout and his senior advisor, Stephan Sjouke, were invited by the Public Defender of Rights of the Czech Republic, Mr Otakar Motejl, to visit his institute from 24 - 27 November 2002. This visit was also meant to get better acquainted and to explore the possibility of a future cooperation.
Newsletter No. 29
THE WORK
Complaint about method of assessment of the age of unaccompanied asylum-seeking minors well founded
In a recent report the National Ombudsman conducted an investigation into the way the age of unaccompanied young asylum seekers was determined. The conclusion of the investigation is that the Immigration and Naturalisation Service (IND) cannot determine if young asylum seekers are aged 18, on the basis of an x-ray of their collarbones. In his report the National Ombudsman also concluded that the IND did not act properly when it ignored the objections of the Health Care Inspectorate against use of the examination for age determination purposes. Furthermore the IND did not take heed of the advice of the Inspectorate to set up a medical ethical committee that would monitor the age investiÂgation. The National Ombudsman started the investigation after he received a complaint from an interest group.
The Dutch policy on the admittance of unaccompanied asylum-seeking minors is rather flexible. Unaccompanied young asylum seekers are often already in a very difficult position. Therefore in the Netherlands, special rules apply to them. This means that a young asylum seeker, will not be sent back to his country of origin if it is unsure whether appropriate care is available there. During the investigation into his admittance, the young asylum seeker will receive special care in special housing facilities. All this is different for adult asylum seekers. So if a young asylum seeker can prove that he or she is under 18 (i.e. a minor under Dutch legislation) they get a different treatment than other asylum seekers. A special regime for unaccompanied young asylum-seeking minors can also be found in other European countries, for instance the United Kingdom. Whether an asylum seeker is a minor, meaning younger than 18, cannot always be determined beforehand. Many asylum seekers enter the country without documents with which they can prove their identity and age. Since 1999 the IND uses a new way of determining the age of asylum seekers who do not have any identification on them and whose claim on being a minor is doubted. This method consists of taking an x-ray of the asylum seekers’ collarbone.
Examination not to be used to determine age
The Inspectorate was asked to advice about this new way of determining the age of young asylum seekers. The Inspectorate was of the opinion that only if an x-ray shows that the collarbone of the asylum seeker is completely closed, any scientific conclusion could be drawn. When the collarbone is completely closed, it is generally assumed that the person is at least 20 years of age. The investigation by the National Ombudsman revealed however, that the IND uses the examination to determine other age categories as well. For instance whether an asylum seeking minor is 18 or not. As the determination of the age is of the greatest importance to an unaccompanied asylum seeking minor, the National Ombudsman does not find reason to continue the collarbone x-ray as a reliable method. He recommends the IND to stop using this method and that in the future they only use it to determine whether an asylum seeker is at least 20 years or older.
IND ignores objections of the Inspectorate
Well before the IND began to use the collarbone method in 1999, the age examination had been subject of a medical ethical debate. The IND therefore had asked the Inspectorate in 1998 to give an advice about the usefulness of this method for their work. The Inspectorate informed the IND that it had deep reservations about the effectiveness, the reliability and the proportionality of the method. Notwithstanding the IND went ahead with the method and began taking x-rays of young asylum seekers. The IND did not, however, give any reason why it began using the x-rays in spite of the advice from the Inspectorate.
No medical ethical commission
All age examinations are done by one and the same IND investigator. For this reason also the Inspectorate had insisted on a medical ethical commission that would monitor these examinations. At first the IND promised to do so. The National Ombudsman discovered that such a commission never was established, despite the continued insistence of the Inspectorate that such a commission be set up. The National Ombudsman criticises the way the IND has handled the matter and is of the opinion that the IND should have informed the Inspectorate of its change of view. The Ombudsman furtherÂmore comes to the conclusion that as the results of the examinations are of such major influence on the application, the IND has the duty to maintain a careful and secure procedure. The National Ombudsman therefore recommends the IND to still set up a commission, that can monitor the proper use of the ethical and scientific norms in the age examination.
Actions of the Inspectorate
The National Ombudsman also looked into the question whether the Inspectorate was at fault when it did not try to stop the age examinations. The Ombudsman is of the opinion that the Inspectorate has acted within the boundaries of its competence as there was not an immediate threat to public health and the problem did not directly concern medical care. The National Ombudsman considers that the Inspectorate nevertheless could have acted as it was involved in the age examination already.
The National Ombudsman did not have any response from the Ministry yet, when this was written.
Update special investigation
In the last newsletter, you were informed about the special investigation conducted by the National Ombudsman concerning the delays in processing asylum applications from suspected human rights violators. The investigation looked into the failure of the Immigration and Naturalisation Service (IND) to meet the statutory deadlines for processing asylum applications which have to be screened on serious crimes or human rights violations by the applicants (article 1F of the Convention relating to the status of refugees, compel member states to do so). The National Ombudsman recommended the State Secretary devise a plan of action to process 1F cases more efficiently and clear the backlog within a year. He responded he would do so. On 9 January this year the Ombudsman received the plan of action which, among other things, consists of changing the way the applications are registered. The State Secretary hopes to have cleared the back log by October 2003.
International contacts
On 2 October 2002 Roel Fernhout received the Commissioner for Human Rights of the Russian Federation, mr. Oleg Mironov, and delegation.
Roel Fernhout and his senior advisor, Stephan Sjouke, were invited by the Romanias People’s Advocate, Prof. Dr. Ioan Muraru to pay a working visit to his institute from 14-16 November 2002. Purpose of this visit was to get better acquainted and to explore the possibility of a future cooperation.
Mr. Fernhout and his senior advisor, Stephan Sjouke, were invited by the Public Defender of Rights of the Czech Republic, Mr Otakar Motejl, to visit his institute from 24 - 27 November 2002. This visit was also meant to get better acquainted and to explore the possibility of a future cooperation.
