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Tribunal makes order requiring dental age assessment of young asylum seeker

Tribunal makes order requiring dental age assessment of young asylum seeker

In a new case on dental age assessments, the tribunal has ordered that a young asylum seeker to undergo a dental x-ray and age assessment. If he refuses, his court case will be struck out. The case also gives general guidance on the correct approach to be followed in similar cases.

The new case is ZM and SK, R (on the application of) v The London Borough of Croydon (Dental age assessment) [2016] UKUT 559 (IAC). It follows on from the Court of Appeal judgment in London Borough of Croydon v Y [2016] EWCA Civ 398, covered earlier on Free Movement: Court of Appeal says children can be required to be x-rayed to challenge age assessment in court.

It is only local authorities and some of the more rabid newspapers and their pet backbench MPs who think dental age assessments are a good idea. The Home Office has rejected the use of dental x-ray age assessments as being “inaccurate, inappropriate and unethical”. Successive Chief Medical Officers for Government have expressed strong reservations about requiring children to undergo X-ray dental age assessment. If interested in these issues and a member of ILPA you should have a look at this resource page.

The position of the British Dental Association is that dental examination does not produce an accurate assessment of age, and that it is unethical to expose an individual to a dental x-ray where there is no direct health benefit:

The BDA is vigorously opposed to the use of dental X-rays to determine whether asylum seekers have reached 18. This is an inaccurate method for assessing age. The BDA also believes that it is inappropriate and unethical to take radiographs of people when there is no health benefit for them. X-rays taken for a clinically-justified reason must not be used for another purpose without the patient’s informed consent, without coercion and in full knowledge of how the radiograph will be used and by whom.

The tribunal knows better and rejects this position:

That view is obviously entitled to the highest respect, but in my judgment it is too narrowly based. First, I am satisfied that the information obtained by a dental tomograph may in many cases provide some assistance in age assessments: there may be other cases in which it provides information which is virtually diagnostic on whether the individual has or has not passed a particular age. Secondly, the correct assessment of age enables an individual to receive the appropriate support when growing up, to be categorised as ready or not yet ready for work, to obtain the appropriate level of benefits, and in all other ways to be treated in an appropriate manner by the society in which he finds himself. It is thus of the very greatest benefit both to the person in question and to the public as a whole that, where age is disputed, it should be, so far as possible, assessed correctly.

With no trace of irony, the tribunal is somewhat critical of the dental expert relied on by the local authority in this case, Dr Graham Roberts:

It does, however, seem to me that Professor Roberts has developed an attitude of omniscience, in which he is prepared to assume that what he says goes.

The tribunal is highly critical of Dr Roberts’ approach to dental wear as being precisely diagnostic of age and then goes on to be critical of his general approach:

In relation to each of the four age assessment methods [of Dr Roberts], there was reliance on unreliable data, or failure to mention difficulties about use of the data, or both. In the circumstances I have, with the greatest regret, reached the conclusion that an assessment in this form (or anything like it) by Professor Roberts should be read with the greatest of caution and should be acted on only if there has been a proper explanation of the basis for the opinions expressed.

The official headnote:

  1. Considerable circumspection must always be deployed in responding to a claim that statistical evidence tends to prove a fact about an individual. Statistics may be more useful to decision-makers at the far ends of the scale (where they may be able to show the plausibility or implausibility of a proposition) than in the middle of the scale where they purport to show the likelihood of the correctness of a plausible proposition.
  2. When considering statistical evidence it is always necessary to determine whether the population constituting the database from which the statistics are drawn is sufficiently identical to the population from which the individual is drawn.
  3. The fact that all teeth are mature in the sense that all have reached Demirjian stage H is a sign of chronological maturity but is not a reliable indicator of whether an individual is more or less than 18 years old. The use of the Demirjian stages below stage H does appear to be more reliable in the prediction of age, particularly in the lower teens.
  4. None of the three mandibular maturity markers so far identified appears yet to have attained such acceptance in the scientific community that it can be accepted as a reliable pointer to chronological age in the late teens in males.
  5. Dental wear is not a guide to chronological age in the absence of data for a population with similar diet and masticatory habits to those of the person under examination.
  6. The decision of the Court of Appeal in London Borough of Croydon v Y should not be read as prohibiting a person from refusing to undergo a dental examination. However, (i) the risk inherent in the exposure to x-rays during the taking of the dental panoramic tomograph is not likely to be a reasonable ground for refusing to allow the tomograph to be made, given the advantages stemming from ascertainment of an individual’s true age, and (ii) despite the reservations expressed herein, analysis of a person’s dental maturity may well have something to add to the process of assessing chronological age.
  7. It therefore follows that generally speaking the taking of a dental tomograph should be ordered if a party seeks it, and (because of the process of dental maturity) the earlier the tomograph is taken, the more likely it is to be of assistance.

Dr Roberts seems to be one of the only dentists willing to undertake dental age assessments. The criticism by the tribunal of Dr Roberts’ reports may make it difficult for local authorities to find an alternative.

Source: ZM and SK, R (on the application of) v The London Borough of Croydon (Dental age assessment) [2016] UKUT 559 (IAC) (11 November 2016)

Colin Yeo
A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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