If they rely on medical tests to determine the applicant’s age, as is common practice, EU Member States are obliged to inform the person beforehand on the meaning of the test and the consequences it might have on their treatment as an asylum seeker. Furthermore, they have to ensure that the child and/or their legal representative give their consent to the test. EU Member States allow for a certain margin of appreciation when determining the person in charge to give consent.
For more information, see FRA’s report on 'Age assessment and fingerprinting of children in asylum procedures'.
- In all EU Member States, the consent of the person concerned and/or their legal representative is necessary. In many of the Member States, the refusal to undergo a medical test does not automatically lead to the child being treated as an adult. However, in Czechia, Hungary and Slovenia, this is indeed the consequence.
- Eight EU Member States (Denmark, Estonia, France, Hungary, Italy, Lithuania, the Netherlands, and Spain) require the consent of the child, whereas the consent of the legal representative is not necessary and cannot substitute the consent of the child.
- Eight EU Member States (Belgium, Cyprus, Czechia, Greece, Luxembourg, Malta, Poland, and Slovenia) require either the consent of the child or of their legal representative.
- Five EU Member States (Austria, Bulgaria, Latvia, Portugal, and Slovakia) exclusively demand the consent of the child’s legal representative.
- Croatia, Finland, Germany, Romania and Sweden insist on the consent of both the child and the legal representative.
- Ireland and the United Kingdom do not conduct any medical examination in age assessment procedures. Age assessment is carried out through interviews.
Article 25 (5) of the Asylum Procedure Directive, referring to unaccompanied children, provides that Member States may use medical examinations to determine children’s age. Although it merely applies to unaccompanied children, the Article reflects common principles for the age assessment of any child in asylum or migration procedures, whether accompanied or unaccompanied. The respect of a person’s integrity and dignity is the guiding principle in age assessment procedures.
The refusal of a person to undergo an age assessment test cannot be a base for rejection of their application for international protection, and if still in doubt after the medical examination, authorities have to decide in favour of the minority of the person (presumption of minority). The presumption of minority principle is also provided under Article 13 of the Directive on preventing and combating trafficking in human beings and protecting victims.
The rules outlined in Article 25 (5) have been adopted and included in the proposal of the European Commission for an Asylum Procedures Regulation (COM(2016) 467 final) which is currently under negotiation.