Age disputes and the non-medical use of x-rays in the UK border control system

Tory backbencher David Davies has recently called for dental x-rays to verify the ages of refugees coming from Calais. Although these calls were dismissed by the Home Office and the British Dental Association, this is an issue that has lingered since the 1970s. Below is a post based on an article that Marinella Marmo and I wrote back in 2013, with a lot more historical data included. This case study also features in our book Race, Gender and the Body in British Immigration Control (Palgrave Macmillan, 2014).

The motive of suspicion

In the UK border control system, there is a high level of suspicion inherent, with border control practices often starting from the assumption that migrants, visitors and those seeking asylum are attempting to evade or deceive the system. The default thinking of the border control system seems to assume that certain migrant groups are not who they say they are when interacting with the system. As Marmo and Smith (2010a; 2010b) have argued, there has been a long-standing belief in the UK border control system that migrants and asylum seekers, particularly from Asia and Africa, are potentially ‘bogus’ migrants, with constant mention by the authorities about the unreliability of the testimony of migrants and asylum seekers from these parts of the world, as well as a suspicion that documentary evidence provided by these migrants is likely to be fake. The 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 total disbelief and shift the burden of proof onto the person applying to enter the country. With this burden of proof placed upon the individual, it is often difficult to persuade the authorities that their reasons to enter the country, as a visitor, a working migrant, a migrating family member or even as a refugee, is genuine, which is made more difficult by the presumption that testimony and documentary evidence provided by certain migrant groups is likely to be falsified. Under the intense scrutiny of the border control authorities, if testimony and documents are not considered to be convincing enough, the focus of the authorities may shift to physical examination, with the body becoming the marker of ‘truth’. As Didier Fassin and Estelle d’Hallunin (2005: 598) wrote about refugees in the French border control system, ‘their word is systematically doubted [and] it is their bodies that are questioned’.

This post examines one particular way in which the body is questioned by the border control system – the use of x-rays for age assessment. The use of x-rays for this purpose is a non-medical use of the technology and is used solely for the administration of the border control system in an attempt to determine whether a person intercepted by the system is telling ‘the truth’ or not. This post will look at how x-rays were used in the UK border control system in the past and the continued debate about whether to reintroduce the practice for border control purposes, particular the decision by the UK Border Agency (UKBA) to trial the use of dental x-rays for age assessment in 2012. Within the UK border control system, the authorities have relied on the use of x-rays 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-rays are not satisfactory tools for assessing age.

The use of x-rays in the 1970s

In the UK context, x-rays were used in controlling immigration from South Asia during the 1960s and 1970s. By this time, the largest number of migrants entering the UK was from the Indian subcontinent in the form of family reconciliation. Many young men came to the UK from South Asia in the 1950s and early 1960s before the introduction of immigration controls and with a decline in labour migration from this region in the early 1970s, 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 between 1962 and 1971 to limit mass migration from the British Commonwealth, 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 the significant number of migrants applying to enter UK under the guise of family reconciliation, particularly as children aged under 18, the UK authorities thought that this was a loophole that could be exploited, often as documentation regarding children was less substantial than an adult (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 teenage male migrants, who, if they were over the age of 18, would not be allowed to enter the UK and who were the least ‘desirable’ (due to their labour capacity) in 1970s Britain. To determine whether teenagers 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-rays of the wrists of individuals to estimate the skeletal age of the applicant.

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 became widely known. At the height of the ‘virginity testing’ controversy in February 1979 (see Smith and Marmo 2011), details also emerged that x-rays were being taken of women and children to ascertain the age of suspected ‘bogus’ migrants, as well as for supposed communicable diseases. It was claimed in The Guardian that these x-rays were being conducted by unqualified immigration officers at Heathrow, as well as at High Commissions abroad, which ‘expose[d] both the passengers and clerks to considerable radiation hazards’ (The Guardian, 9 Feb, 1979: 1). The Guardian (8 Feb, 1979: 1) also reported that at the British High Commission in Dacca, a pregnant woman had her skull x-rayed, ‘despite the fact that Department of Health regulations would prevent such a test on pregnant British women’. A possible indication that the British Government held strict immigration control as a primary concern, rather than providing humanitarian approach to potential migrants, was in the response to these allegations by Eric Deakins, a junior Department of Health Minister, who said that ‘immigration screening cannot be measured against [domestic] NHS standards’ (The Guardian, 9 Feb, 1979: 1). Like the virginity ‘tests’, the veracity and usefulness of these examinations was questioned, with Labour MP Jo Richardson stating, ‘medical opinion… is beginning to query the practice. It is beginning to say that it is an unreliable method of determining age’ (House of Commons, Hansard, 19 Feb, 1979: 216). In response to the questions surrounding the use of x-rays in immigration control, the Labour Government acquiesced somewhat in the face of mounting criticism and Rees announced the Chief Medical Officer, Sir Henry Yellowlees would ‘carry out a review of the objects and nature of all medical examinations in the immigration control context’ (Cited in, Juss 1997: 109).

However there were many who felt that an internal investigation to be conducted by Yellowlees seemed to be an attempt to stem further discussion of the subject and to deflect further criticism of the Government in the lead up to the 1979 General Election. Various critics, from Jo Richardson in Parliament and from the editorial pages of The Guardian in particular, condemned the lack of transparency in the Government’s immigration control procedures. Ms Richardson declared in Parliament, that it was ‘high time that the secret instructions given by the Home Secretary to immigration officers under the immigration legislation were made public’ (House of Commons, Hansard, 19 Feb, 1979: 217). The treatment of legitimate migrants and the scrutiny placed upon one’s application to enter Britain was heavily determined by the discretion of individual Entry Clearance Officers, but the manner in which these discretionary powers manifested were open to any kind of evaluation by anyone outside the border control system. An editorial in The Guardian (10 Feb, 1979: 8) criticised the extent of the discretionary powers of ECOs and the lack of transparency in the application of such powers:

The central issue thrown up by the variety of medical tests remains that of discretion and its monitoring… When the virginity tests first came to light, we said that investigation of a particular case was not enough and that a full debate on immigration procedures was needed… But it cannot begin until the full codes of guidance for immigration officers and their medical colleagues as well, are published and the scope of their practices is clearly and publicly disclosed.

This frustration with the internal inquiry being conducted by Henry Yellowlees led to the Commission for Racial Equality (CRE) to propose an independent investigation into discrimination within immigration control, which lasted from 1981 to 1985. The inquiry performed by Yellowlees and his assistant, Dr N.J.B. Evans, on the other hand, was undertaken during 1979-1980, with the final report released to Parliament in April 1980.

Evans travelled to South Asia in 1980 to investigate the broad topic of medical examination within the immigration control system and with his fieldwork, much of the final report was written by him. A draft version of the Yellowlees report (1980a: appendix 1, 2) stated, according to ‘orthodox radiological opinion in the UK and overseas’, it was ‘acceptable to use such bone X-rays to assist in estimating the age of children’, while the final report concluded that x-rays were ‘a potentially more accurate method of estimating the age of children’ than other examinations of the body, such as ‘skin texture, wrinkling or firmness of tissues, and of noting indications of puberty’ (Yellowlees, 1980b: appendix 1, 1-2). Based on North American studies, the report claimed that ‘[t]he accuracy attainable is in the order of plus or minus six months and the radiation exposure negligible’ and while noting that tables of skeleton maturity were based on North American children and there is ‘very little firm data’ on how these tables compared with the skeletons of children from South Asia, the report argued that it was assumed that skeletons matured earlier in South Asian children and were thus still useful (Yellowlees, 1980b: appendix 1, 2). The major finding of the report regarding the use of x-rays for age assessment purposes was:

5. I conclude that the use of X-rays of the bony skeleton provides a useful, fairly accurate and acceptable safe way of estimating age of children when it is important to do so. (Children in this context means up to about 21 years…) Only one or two X-ray pictures need be taken, of the upper limb or the lower limb excluding the hips. Provided proper shielding is used in accordance with normal radiological practice, the radiation dose to the parts X-rayed is minimal and the scattered gonadal dose is insignificant. These views accord with informed radiological opinion in the UK and overseas (Yellowlees, 1980b: appendix 1, 3).

The report also concluded that ‘United Kingdom radiological opinion holds that X-rays are not particularly useful for estimating the age of adults’, but acknowledged that the Foreign and Commonwealth Office had instructed Entry Clearance Officers in October 1979 that x-rays should not be administered on anyone thought to be over 21 years of age (Yellowlees, 1980b: appendix 1, 3-4).

Despite the Yellowlees Report recommending that the border control system continue to use x-rays to assess the age of migrants thought to be under 21 years of age, several other people and organisations criticised this viewpoint. At the AGM of the British Medical Association 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’ (cited in, Gordon, 1983: 15). 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-rays and claiming that ‘there is no safe level of exposure’ (cited in, Gordon, 1983: 15). White also questioned accuracy of age assessment through the use of x-rays, particularly in relation to the use of generalised data on age/bone ratio based on North American children to assess South Asian children, and concluded:

After a thorough and objective examination of the practice, one must conclude that radiological examinations are a highly inaccurate method of determining chronological age (cited in, Gordon, 1983: 16).

As mentioned before, the Yellowlees Report sidestepped the issue of data on the skeletal maturity of South Asian children and recommended that further research in this area was required. The Joint Council for the Welfare of Immigrants (1981: 13) stated that the report’s findings on x-rays ‘managed to contradict itself and most accepted medical opinion regarding the reliability of such assessment’. However in FCO briefing notes for answering press questions on the report, it stated that the Home Secretary was ‘not aware that the balance of informed medical opinion is against such tests’ (FCO 1980a: 2) and the government persisted with the claim that x-rays for age assessment purposes was both useful and relatively safe (for example, FCO 1980b).

So 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 and around another 300 in Islamabad (House of Lords, Hansard, 19 Jan, 1981: 336w). The following January, Parliamentary Under-Secretary for the FCO, David Trefgarne, announced in the House of Lords that during 1981, approximately 420 children had been x-rayed Islamabad and 262 children in Dacca (House of Lords, Hansard, 28 Jan, 1982: 1114w).

However the following month, the Home Secretary Willie Whitelaw announced that the FCO would no longer be carrying out x-rays on children for these purposes. Whitelaw stated in parliament that Yellowlees had revised his opinion since the report was released in 1980 and advised the Home Secretary that x-rays were now ‘unlikely to provide more accurate evidence of age than the assessment of other physical characteristics of an individual, and therefore can add little to the general clinical examination’ (House of Commons, Hansard, 22 Feb, 1982: 279-280w). The Runnymede Trust archive at the Black Cultural Archives in London has a copy of the letter that Yellowlees wrote to Whitelaw, which concluded that ‘the usefulness of the X-ray method of estimating age must be limited in the immigration context’ (Yellowlees, 1982: 2). Yellowlees maintained that the x-rays were relatively safe, but chiefly found that using the template of the skeletal maturity of North American or European children to assess the age of South Asian children was insufficient to make an accurate assessment of age. Yellowlees (1982: 2) stated ‘the scientific foundation for this when applied – for example – Asian children must be open to doubt’. Whitelaw said that Yellowlees had ‘concluded that such X-ray examinations are of limited value and their continued use in the immigration context can no longer be justified’ (House of Commons, Hansard, 22 Feb, 1982: 279-280w). In its report, the CRE (1985: 40) argued that since the government acknowledged that x-rays were not satisfactorily reliable for estimating age, ‘it should attempt to review previous cases where such evidence was a substantial factor leading to refusal’, but this recommendation was not enacted by the government. In a document outlining the government’s response to the CRE report, held in the Runnymede Trust archive, stated that it was ‘not feasible’ to review all of these cases ‘given the immense amount of work it would involve’ (Home Office, 1985: 12).

The UKBA trial and its critiques

Since Whitelaw’s decision to end the use of x-rays for the assessment of age in migrant children, the topic 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-rays 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’ (House of Lords, Hansard, 20 Jun, 1996: 562-563). Aynsley-Green, et. al. (2012: 102) has shown the matter was brought up again in 2006 and 2009, and most recently has been revived by the UKBA in early 2012.

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-rays to determine the age of asylum applicants. The letter said that many would ‘be aware of the difficulties that arise when we 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)’ (Bowell, 2012a). 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’ (Bowell 2012a).

However this proposed trail received significant criticism from immigration lawyers, medical and dental professionals and the four UK children’s commissioners, who were quoted in The Guardian (30 Mar, 2012) as claiming the proposed actions were ‘a clear breach of the rights of vulnerable children and young people and may, in fact, be illegal’. While talking to some stakeholders, Damien 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’ (House of Commons, Hansard, 30 Apr, 2012: 1081w). A month later, Bowell sent another letter announcing that the proposed trail 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 (2012b), the NRES ‘concluded that our proposed trail constitutes “research” and that, as such, it requires the approval of a research committee before it can proceed’. Bowell (2012b) 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 (27 Apr, 2012) 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’. Both Bowell (2012b) and the Minister for Families, Sarah Teather, said that no x-rays had yet taken place (House of Commons, Hansard, 30 Apr, 2012: 1236w), and the UKBA were looking into whether to proceed with the trial in the future.

With the possibility of the trial still going ahead in the future, the British Medical Bulletin published an article on the various issues surrounding the assessment of age of young people in immigration control, which declared that ‘age assessment practice in the UK remains highly inconsistent’ and was therefore unreliable for border control purposes (Aynsley-Green, et. al., 2012: 23). The authors listed five main reasons for opposing the use of x-rays to assess the age of young people:

• Firstly, the authors pointed out that x-rays of bones or teeth ‘can never indicate precisely the chronological age of the individual’ and at best could provide an estimate of skeletal/dental maturity compared to an average control subject (Aynsley-Green, al., 2012: 24). Further to this, as x-rays for age assessment were most likely to be used to establish whether a young person was over the age of 18 or not, the authors acknowledged that the most salient group affected by this practice would be young persons between the ages of around 15 to 20 years old and in the article. However, the authors stated, ‘there is no “scientific method” that can provide a precise assessment of chronological age in individuals between 15 and 20 years of age’ (Aynsley-Green, et. al., 2012: 27).
• Secondly, the authors noted, which the Yellowlees report had sidestepped in 1981, that ‘standards of normality’ in regards to age assessment using physical characteristics are ‘simply not available for children and young people from many countries in Asia, Africa or the Middle East’, with the authors further stating that it would ‘unsatisfactory to assess their images from the standards derived from Caucasian, European or North American children’ (Aynsley-Green, al., 2012: 24).
• Thirdly, the authors simply state ‘although superficially easy to do, radiography demands expert interpretation by experienced paediatricians, dentists or radiologists’ (Aynsley-Green, al., 2012: 24). What the authors seem to be implying with this statement is in the border control context, x-rays for age assessment might be utilised by border control staff, rather than medical professionals. This was also a concern in 1979 when the controversy over x-rays first emerged.
• Fourthly, the authors point out that x-rays give a dose of radiation and that the non-medical use of x-rays is not safe or ethical on these grounds, stating that the x-rays are ‘driven solely by a government’s administrative convenience and is without therapeutic benefit to the individual’ (Aynsley-Green, al., 2012: 24).
• Lastly, the authors propose that all medical procedures should only be conducted with fully informed consent of the individual, but ‘[i]n the immigration context, ensuring that full and informed consent is obtained is complicated by cultural, religious and linguistic factors, often coupled with a general lack of understanding of medical environments’ (Aynsley-Green, al., 2012: 25). Also in the border control context, if a medical procedure is to be used as evidence where the burden of proof falls on the applicant, then the applicant has no choice but to consent or else their application will probably be unsuccessful. This can no longer be considered consent.

As well as listing these concerns, the authors mentioned a number of medical and dental bodies that opposed the use of x-rays for age assessment purposes, stating that growing concern that this use of x-rays was ‘imprecise, unethical and potentially unlawful has led every relevant statutory and professional body in the UK to argue against its use’ (Aynsley-Green, et. al., 2012: 25).

Does the border control system lack institutional memory?

The fact that the UKBA has not completely shelved the idea of using x-rays for age assessment purposes shows two things. Firstly, it shows that the border control system maintains the idea of shifting the burden of proof onto the individual applicant and that physical examination is necessary as the applicant is inherently untrustworthy. Secondly, it shows that while this idea has a long history within the border control system, it also shows that the institutional memory of the system is not as far-reaching in other areas as it attempts to recycle ideas that were dismissed as unsatisfactory thirty years ago. As long as the emphasis of the border control system lies in attempting to maintain the ‘secure’ border and the idea of the border as separating the domestic British population from the threat of migrant ‘other’ is still fostered, there will be strict scrutiny placed upon those who attempt to traverse through the system. In this world, the applicant must prostrate themselves to the interrogations of the system and all available avenues are explored 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-rays, 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 (JCWI, 1985: 2).

This post would argue that this still seems to be the case now.

References

Aynsley-Green, A, Cole, T, Crawley, H, Lessof, N, Boag, L & Wallace, R (2012) ‘Medical, Statistical, Ethical and Human Rights Considerations in the Assessment of Age in Children and Young People Subject to Immigration Control’, British Medical Bulletin, 102 (14 May) 17-42

Bowell, Z (2012a) Letter to stakeholders ‘Age Assessment – Dental X-Rays’ (28 Mar) http://www.ilpa.org.uk/resources.php/14476/letter-from-zilla-bowell-ukba-on-plans-to-reintroduce-use-of-x-rays-for-age-assessment (accessed 19 Dec, 2012)

Bowell, Z (2012a) Letter to NASF members (27 Apr) http://www.ilpa.org.uk/resources.php/14631/zilla-bowell-ukba-letter-on-dental-x-rays-trial-suspended (accessed 19 Dec, 2012)

Commission for Racial Equality (1985) Immigration Control Procedures: Report of a Formal Investigation (CRE, London)

Fassin, D & d’Halluin, E (2005) ‘The Truth from the Body: Medical Certificates as Ultimate Evidence for Asylum Seekers’, American Anthropologist, 107(4) 597–608

FCO (1980a) ‘X-Ray Examinations’, FCO 50/679, NA

FCO (1980b) ‘Notes for Press Enquiries: Yellowlees Review’, FCO 50/679, NA

Gordon, P (1983) ‘Medicine, racism and Immigration Control’, Critical Social Policy, 3(7) 6-20

Home Office (1985) ‘Commission for Racial Equality (CRE) Report into Immigration Control Procedures: Government Comments’, RC/RF/1/01/B, Runnymede Trust archive, Black Cultural Archives, London

Joint Council for the Welfare of Immigrants (1981) JCWI Annual Report 1980/81 (JCWI, London)

Joint Council for the Welfare of Immigrants (1985) ‘Briefing on Immigration Control Procedures: Report of a Formal Investigation by the Commission for Racial Equality’, RC/RF/1/01/B, Runnymede Trust archive, BCA

Juss, S (1997) Discretion and Deviation in the Administration of Immigration Control (Sweet & Maxwell, London)

Marmo, M & Smith, E (2010a) ‘Racial Profiling at the British Borders: An Historical Overview of the Process of Selection and Scrutiny’, in J. Shantz (ed.) (2010) Racial Profiling and Borders: International, Interdisciplinary Perspectives (Vanderplas Publishing, Lake Mary) 35-69.

Marmo, M & Smith, E (2010b) ‘Is There a Desirable Migrant? A Reflection of Human Rights Violations at the Border: The Case of “Virginity Testing”’, Alternative Law Journal, 35/4 (December 2010) 223-226.

Smith, E & Marmo, M (2011) ‘Uncovering the “Virginity Testing” Controversy in the National Archives: The Intersectionality of Discrimination in British Immigration History’, Gender & History, 23(1) 147–65

Yellowlees, H (1980a) Draft of The Medical Examination of Immigrants: Report by the Chief Medical Officer, FCO 50/676, NA

Yellowlees, H (1980b) The Medical Examination of Immigrants: Report by the Chief Medical Officer, FCO 50/677, NA

Yellowlees, H (1982) Letter to Willie Whitelaw (14 Jan), RC/RF/1/08, Runnymede Trust archive, BCA