The following FRA opinions build on these main key findings:
In the context of this report, age assessment is the process used to establish the age of an asylum seeker and, more specifically, whether that person is a child or an adult (over 18 years). Establishing whether an asylum seeker is a child results in significantly different treatment in a number of fields related to child protection. In accordance with EU legislation, EU Member States often use medical tests to establish the age of a person. FRA evidence shows that in all EU Member States, when a medical test is used, the consent of the person concerned and/or their representative (including guardians) is necessary, and no such medical test can be carried out contrary to their will. However, in some EU Member States, only the consent of the legal representative of the child suffices for an age assessment to be carried out by competent national authorities.
If there are doubts as to a child’s age, Article 25 (5) of the Asylum Procedures Directive provides that Member States may use medical examinations to determine their age, leaving a margin of appreciation for Member States to decide which type of medical test to apply. In addition, Article 25 (5) of the directive allows Member States a margin of appreciation to regulate the issue of consent. Member States may decide whether the consent of the child is necessary, or the consent of their representative is sufficient, or if both the consent of the child and the representative is needed before carrying out a medical test. However, in exercising their margin of appreciation, EU Member States are bound by the Charter of Fundamental Rights and provisions, such as those enshrining human dignity, the integrity and privacy of the person, and the rights of the child. In addition, the Asylum Procedures Directive defines that the tests used must be “the least invasive” and carried out by qualified medical professionals. If such a medical test is carried out, Member States are obliged to inform the person beforehand about the meaning and the consequences of the test regarding their treatment as international protection seekers. In addition, they must secure the consent of the child concerned and/ or their representative (including guardians or parents in the case of accompanied children).
The rules set out in Article 25 (5) of the Asylum Procedures Directive are essentially incorporated in the proposal of the European Commission for an Asylum Procedures Regulation, which is currently under negotiation.
In its research, FRA looks at minimum age requirements relating to the rights of children in asylum and migration procedures, as well as the impact of EU-wide Information Technology systems (IT systems) on fundamental rights. FRA points out that children in asylum and migration procedures are not excluded from the obligation to provide fingerprints. In general, EU Member States collect the fingerprints of children of the age provided in the relevant EU legislation. However, a few Member States collect the fingerprints of children below the minimum age laid down in the EU legislation for national purposes. These fingerprints are kept in national databases and are not inserted in EU-wide information systems. The age at which a child must give their fingerprints in a migration or asylum related procedure varies, since the EU legislation does not lay down a uniform minimum age. The minimum age ranges from six years (according to the Regulation on the uniform format for residence permits for third-country nationals) to 12 years for children applying for a Schengen Visa and 14 years (according to Eurodac Regulation, although the recast Eurodac proposal lowers this minimum age to six years). Furthermore, the EU legislation provides that EU Member States collect fingerprints with full respect of the right to human dignity and the rights of the child, in accordance with the safeguards laid down in the Charter of Fundamental Rights of the European Union and other international human rights instruments.