Age: What’s in a Number? Detention of Minors Pending Age Determination and the Case of Abdullahi Elmi & Ors V Malta

Post by Celia Rooney, practicing barrister at Blackstone Chambers, with a particular interest in migration, criminal justice, equality law and human rights. She holds an undergraduate degree in law (LLB) from the University of Glasgow, a masters in law from the University of Oxford (BCL) and was called to the Bar in 2015. This is the second installment of Border Criminologies new themed series on Current Legal Issues on Migration organised by Ana Aliverti and Celia Rooney.

The European Court of Human Rights (‘ECtHR’) recently decided the case of

The applicants were two Somali asylum seekers who, despite being minors at the time, had each been detained in Malta for approximately eight months alongside adults. While officially detained pending the results of age determination procedures, both remained in detention for several months after being orally informed that their tests had confirmed their status as minors. The applicants challenged both the fact of their detention and the conditions in which they were held.

Relevant law: detention of minors

The ECtHR set out a number of European and international law provisions.

The Convention prohibits degrading treatment (Article 3), as well as arbitrary and unlawful detention (Article 5). The most important international law principles stem from the UN Convention on the Rights of the Child (UNCRC), which stipulates that the best interests of the child shall be the primary consideration (Article 3(1)).

The Council of Europe has also published recommendations that indicate that:

• Minors should only be detained as a last resort (Recommendation Rec(2003)5 of the Committee of Ministers of the Council of Europe on measures of detention of asylum seekers, para. 20-23);
• Unaccompanied children should never be detained, and other children should only be detained after alternatives have been considered (Recommendation 1985 (2011) of the Parliamentary Assembly of the Council of Europe, of 7 October 2011, entitled ‘Undocumented migrant children in an irregular situation: a real cause for concern’, para. 9)
• The benefit of the doubt should be given to the child with regard to age determination (Recommendation 1985, above, para. 9.4.7).

In addition, under the EU Reception Conditions Directive:

• Minors should be detained only as a last resort, once it is established that other less coercive measures cannot be applied effectively (Article 11(2));
• Unaccompanied minors over the age of 16 in detention may be placed in accommodation centers with adults, but only if this is in their best interests (Article 24(2)).

Court ruling

In Abdullahi, the ECtHR held unanimously that there had been breaches of both Article 3 and 5 of the Convention. It noted that the international community had already suggested the warehouses used to accommodate the applicants (who were literally held in ‘Warehouse 2’) were not meant to house human beings.

The Strasbourg Court also found that the applicants’ detention was unlawful, contrary to Article 5 of the Convention. The applicants’ detention had been rendered unlawful by the lengthy delays in their release, particularly after they had been told orally that the age determination procedure confirmed they were children. Those delays were exacerbated by the lack of procedural safeguards, and the failure of the Maltese authorities to ascertain whether detention was necessary as a last resort.

Significance of the ruling: what is says

The decision in Abdullahi is, for the most part, welcome. It is notable in particular for three reasons.

First, the message from the Court to authorities that continue to detain children unnecessarily is a forceful one. The Strasbourg judges said that the length of the delays in the release of the children after it had been established that they were in fact under the age of 18 raised ‘serious doubts as to the authorities’ good faith’. This is uncharacteristically damning language from the Court. 

Second, this is the first case in which the conditions in the particular detention centre in Malta have been found to violate Article 3. What appears to have persuaded the Court that the threshold for an Article 3 violation had been met was the fact that the applicants were minors, which added a ‘new dimension’ into the balance. Explicit recognition of the weight that this consideration adds to the balance in a particular case is valuable. 

Third, the judgment may prove to have implications for migrants in detention more generally. In contrast to earlier decisions such as Saadi v UK, the Strasbourg Court may have applied a test of ‘necessity’ to immigration detention under Article 5(1)(f) of the Convention. In Saadi, the Grand Chamber held that a state may detain an asylum seeker to prevent unauthorized entry and expedite an asylum claim, regardless of whether that detention was necessary to prevent irregular entry. While previous decisions of Strasbourg appear to have departed from a strict application of Saadi, the ruling in Abdullahi explicitly referred to the failure of the Maltese authorities to consider alternatives to detention. The potential significance of this was recognized in the concurring opinion of Judge Pinto du Albuquerque. However, it remains to be seen if this in fact represents a departure from the reasoning of Saadi  or whether the application of the ‘necessity’ test in this case instead stems from provisions specific to minors (such as Article 11(2) of the Reception Conditions Directive, above).

Significance of the ruling: what it doesn’t say

In the context of age determination procedures, however, the ruling is also notable for its omissions.

First, the Strasbourg Court appears to tacitly endorse the idea that states can detain applicants pending the result of an age determination process. In a previous case, Mahamed Jama v Malta, an applicant challenged her detention during the age determination process. The ECtHR held that it could not rule in her favour, as the results of the process indicated that she was in fact an adult. In Abdullahi, however, the test indicated that the applicants were minors. Despite this, the Court still appears to have endorsed the policy of the Maltese authorities, which allows individuals to be detained pending identification, including age determination.

It is an established principle of international law that children should be given the benefit of the doubt in administrative proceedings. With regard to unaccompanied minors, that principle is explicitly recognized in the UN Committee on the Rights of the Child General Comment No. 6 (2005), which states that, ‘in the event of any remaining uncertainty’, following an initial age determination assessment, states ‘should accord the individual the benefit of the doubt, such that if there is a possibility that the individual is a child, she or he should be treated as such’ (para. 31(i)). Where there is any doubt as to whether an individual is a child after an initial age determination process, he or she should be released from detention if that is how other children are treated under national law. The language of the General Comment clearly represents a political compromise, which allows a limited period of detention pending an initial age determination procedure in the interests of administrative efficiency. It is not clear, however, that the General Comment is in line with the wider principles of international law in this field. It is difficult, for example, to reconcile any detention pending even an initial age determination assessment with the principle of the benefit of the doubt, particularly when it is read in light of the notion of the best interests of the child.

Second, the Abdullahi judgment does not comment on the legality of age determination procedures generally. This is understandable since neither applicant in fact raised this as a ground of challenge. However, there is mounting criticism of age determination procedures at an international level. Most notably:

• Doctors have raised ethical concerns with the procedures, which often rely on x-rays (such as wrist bone x-rays, with the associated risks) despite the fact that there is no medical benefit to the process. The use of radiology for ‘administrative as opposed to medical purposes’ is arguably contrary to the principle of non-maleficence.
• Doctors and international organisations have challenged the reliability of age determination. Such criticism has led some states, such as Belgium, to allow a margin of error of up to two years. The need for such a margin of error has been recognized by international organisations, such as the UNHCR.
• There are particular concerns that age determination procedures fail to account for cultural differences between various countries of origin. Many countries in the world, such as Afghanistan, do not comprehensively register births. This affects the reliability of procedure.

Under the existing EU legislative framework, set out in the Recast Asylum Procedures Directive, medical assessments to determine age are allowed, though they are subject to a framework of safeguards. Given the importance of this issue, particularly for unaccompanied minors who often travel without the requisite documentation to prove their age, guidance from Strasbourg would be welcome to assess whether specific state practices comply with the Convention.

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How to cite this blog post (Harvard style)

Rooney, C. (2017) Age: What’s in a Number? Detention of Minors Pending Age Determination and the Case of Abdullahi Elmi & Ors V Malta. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/01/age-what's-0 (Accessed [date]).