As was discussed in a previous blogpost, the European Court of Human Rights ruled on the age assessment of unaccompanied minors (UAM) for the first time in its decision of 21 July 2022 in the case of Darboe and Camara v. Italy. With the pending application n° 47836/21 in the case of F.B. v. Belgium, the Court will again have to take a position on the fundamental rights of the child in the context of age assessment. The Human Rights Centre and the Centre for the Social Study of Migration and Refugees (CESSMIR) of Ghent University (Belgium) intervened in the F.B. case with a third party intervention (TPI), summarized in a blogpost on Strasbourg Observers. While the Darboe case emphasized some important procedural guarantees, significant questions remain.
The case of F.B. concerns a Guinean national who declared to be an unaccompanied minor upon arrival in Belgium. Based primarily on a medical age assessment consisting of X-rays of the clavicle, teeth and wrist (the triple bone test), the Belgian Guardianship Service decided not to recognise her as a minor. As a consequence, the girl did not receive the protection measures provided for UAM in Belgium, such as the assignment of a guardian. The applicant argues that this decision violates both Articles 8 and 14 of the Convention, and that the lack of an effective remedy to challenge either this decision or the result of the bone test itself constitutes a violation of Article 13.
In its July 2022 judgment in the case of Darboe, the Court emphasized some important principles regarding age assessment of UAM in light of the right to respect for private life in Article 8 ECHR. It reiterated that States’ interest in foiling attempts to circumvent immigration rules must not deprive foreign minors, especially if unaccompanied, of the protection their status warrants, and that the protection of fundamental rights and the constraints imposed by a State’s immigration policy must therefore be reconciled (§152). Importantly, the ‘principle of presumption of minority’ was deemed to be an “inherent element of the protection of the right to respect for private life of a foreign unaccompanied individual declaring to be a minor”, implying that sufficient procedural guarantees must accompany the relevant procedure (§153-154). Furthermore, the Court welcomed the development of guarantees in EU and international law to ensure a holistic and multidisciplinary age assessment procedure (§155).
The TPI submitted by the Ghent University Human Rights Centre and CESSMIR in the F.B. case explained that the Belgian age assessment practice is characterised by the absence of the application of a presumption of minority. Furthermore, Belgian authorities usually resort to a medical age examination, neglecting the possibility of psychoaffective tests and often ignoring documents (such as foreign birth certificates) indicating minority. It was submitted that this practice both disregards the private international law rules on the recognition of foreign authentic acts as laid down in the Belgian Code of Private International Law and is at odds with the lack of reliability and accuracy of medical age determination tests, exacerbated by probable variations in developmental patterns between ethnic and socio-economic groups. While the Darboe judgment focused on procedural guarantees in age assessment procedures, the question rises how the Court will deal with these remaining questions in light of, for example, the holistic and multidisciplinary approach guaranteed in EU and international law.
Mathilde Brackx is Ph.D. Candidate in Private International law, Ellen Desmet is Associate Professor of Migration Law and Jinske Verhellen is Associate Professor of Private International Law at the University of Ghent. The authors are members of the Ghent team of the FAMIMOVE Project
Photo Credits: Adrian Grycuk under Creative Commons Attribution-Share Alike 3.0 Poland
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