Forensic Age Estimation in Swiss Asylum Procedures: Racialization in the Production of Age.

Author:Oertli, Johannes
Position:Essay - Abstract
 
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Abstract

In asylum procedures, authorities often doubt the claim of an unaccompanied young person to be a child. In Switzerland, in such cases, asylum seekers are made to undergo forensic age estimation to assess their "actual" age. This article studies this practice, drawing on interviews with the people who commission and conduct it. It elaborates on what triggers such "age disputes" and explains how age is being assessed. It continues by highlighting the difference between forensic and medical age estimation and how the use of VAE in a forensic environment racializes the children involved. In conclusion, this article reflects on the meaning of this racialization and what it, as well as the use of FAE, signifies about the interplay of racialized boundaries and legal borders within current migration regimes.

Resume

Dans les procedures de demande d'asile, les autorites doutent souvent de la pretention de jeunes personnes nonaccompagnees a etre des enfants. En Suisse, dans de tels cas, les demandeurs d'asile sont soumis a une procedure d'estimation medico-legale afin d'evaluer leur age >. Cet article etudie cette pratique a partir d'entretiens approfondis avec les personnes qui la commissionnent et la mettent en oeuvre. Il traite des raisons provoquant ces contestations sur l'age et explique la facon dont l'age est evalue. Il souligne ensuite la difference entre une estimation medico-legale et medicale ainsi que la maniere dont l'estimation de l'age en milieu medico-legal racialise les enfants concernes, l'xirticle se conclut par une reflexion sur la signification de cette racialisation et sur ce que cette derniere, de meme que l'utilisation de l'estimation medico-legale, signifient au sujet de l'interaction entre frontieres racialisees et frontieres juridiques dans les regimes migratoires actuels.

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In Switzerland there are significant advantages to being considered an unaccompanied asylum-seeking child (UASC). They range from better reception conditions and care to being protected from deportation to the country of first entry under the Dublin hi regulation. Thus authorities presuppose an incentive for adolescent asylum seekers to falsely claim to still be UASC and in turn to contest these claims. Indeed, since the peak of asylum applications in the "migration crisis" in 2015, (1) there has been more scrutiny of age disputes. Adolescent applicants have become increasingly entangled in legal disputes over their "true" age. (2) Age has become a complicated category for young asylum seekers (3) and the Swiss Secretariat for Migration (SEM), each attempting to prove opposite claims. For solutions, the SEM approached forensic medical practitioners, who perform a procedure known as forensic age estimation (FAE), wherein different parts of a young persons body are measured and categorized. (4) FAE establishes a probable age range of UASC, which authorities take to settle age disputes.

This article unpacks FAE in Swiss asylum procedures, focusing on one particular procedure called three-pillar analysis. It draws upon research conducted in Switzerland in the summer of 2016. I base my work on eight interviews lasting around one hour with specialists in ae, conducted between April and June 2016. The interviews were translated from German to English and anonymized. My interlocutors can be divided into two groups. I spoke with three individuals who commission or carry out tests and five people who are critical of the tests. This imbalance emerged because few people conduct FAE in Switzerland and because I struggled to find interview partners in favour of FAE, but not to find people opposed. While forensic age estimations (as well as other forms of age estimations) (5) have been a focus of scientific inquiry (in particular, legal,6) little social science research has covered the issue, and much of it has focused solely on the procedure in theory, (7) or on its participants. (8) This article analyzes interviews with the people who commission and conduct FAE and thus centres on FAEs in practice.

I complement the interviews with a close reading of an expert report on age estimation (Altersgutachten): the written product of FAE. Accessing such reports was difficult. However, I gained access to one report through an NGO worker. I used it to challenge and complement the interviews. It is anonymized and translated from German. Even though I read only one report, my interviews, as well as the academic literature the report cites, confirm the procedure detailed in it. The report will be used only to illuminate how FAEs proceed. I did not meet the young person whose body this report assesses. I know the subject is male, from Eritrea, and claimed to be sixteen at the time of the assessment, and the report led to his being re-estimated as adult.

This article elaborates on the reasons for such "age disputes." Explaining how age is being determined, I continue to illuminate how FAE is different from medical age estimation conducted in a clinical context. I highlight how clinical and medical age estimation assess chronological or biological age respectively. (91) continue by focusing on one specific moment in FAEs, where this difference in context demands that FAE adapts its reference population. This leads it to draw upon a racist categorization. In this moment, the test racializes its subjects to uphold its validity in an asylum context. In conclusion, this article reflects on the broader meaning of moments like this and how they, as well as the use of FAE, illuminate the ways in which sovereign "borders and [racialized] boundaries" (10) operate in the current migration regime. (11)

Age Disputes

The question of age is pivotal in asylum procedures, as everything, including the refugee definition, "must be interpreted in an age ... sensitive manner." (12) For example, the same ill-treatment amounts to persecution when faced by a child but not by an adult. (13) In addition, children enjoy the additional protection of the Child Rights Convention. (14) Furthermore, even though no young person is forced to consent to an FAE, non-cooperation can amount to a breach of the applicants duty to cooperate. (15) In the worst case, this can result in dismissal of the asylum procedure or at least will lower the overall credibility of the applicant and thereby influence the asylum decision. Kvittingen has uncovered this possibility in UK age estimations. (16) Moreover, Swiss asylum law includes many procedural advantages (17) and mandates better housing and care for UASC. (18) Thus being underage entails different treatment for asylum seekers. Further, the Dublin hi regulation protects children from being transferred back to their country of first entry. They are entitled to an asylum procedure in Switzerland. Thus being a child is decisive for an UASC's future, and "age" is a vital procedural (considering the advantages of being UASC), financial (considering the costs of special treatment), and political (considering asylum statistics) issue. (19)

However, all my interlocutors acknowledged that age, despite its imhportance, is difficult to determine. As my interview partner working for the SEM explained, it constitutes a juridical dilemma. Sebastian is a senior case worker at the SEM. He responded to my official interview request to the SEM and wanted to discuss three-pillar analyses (the particular age estimation procedure discussed here) because they are a novel matter for the SEM. He explained why he chose FAE: "As a governmental organization, we are bound to the principle of judicial investigation. We must establish the facts and investigate the circumstance as much as possible. And I considered it my responsibility--as the person, who ... in the end signs the decisions--if we have the possibility to clarify age with such precision as the forensic medical specialists promise, we must use it."

He clarified that the reasons people cannot show proof of being a minor, like a passport or birth certificate, are plentiful (20) and range from lack of bureaucratic structures in their country of origin to ill-advice by smugglers 21 Some are also just informed enough to present themselves as younger than they are. In Sebastians view, such incentives to cheat and the falsifiability of any proof destabilize every claim of adolescence. However, Sebastian considers it the SEM's obligation--as a government organization--to approach the truth as closely as possible. And he insisted that only FAE promises to assess age precisely enough to solve age disputes in a "scientific" manner, which adheres to "the principle of judicial investigation." Likewise the Swiss Regulation on Asylum refers to the possibility of verifying applicants' claimed age using "scientific methods," (22) and the Swiss Federal Council, whenever asked by mps about the validity of FAE, replies that there is no reliable method, but FAE is at least based on "scientific methods." (23)

Age, Sebastian insisted, is assessed not only by using FAE. In fact, FAE constitutes only a weak indicator. (24) Identity papers and the statements of the young person and physical appearance are also considered. Besides, according to longstanding judicial practice, (25) age must be established as part of an overall estimation that considers all possible evidence, because no method is precise enough. (26) However, as Sebastian himself explained, all evidence apart from FAE is falsifiable, or (in)voluntarily lacking. Furthermore, the burden of proof for being underage rests on the young person. Therefore if minority is implausible, majority is simply assumed. (27)

If the SEM assesses a UASC as adult, the young person's age is preliminarily adjusted to "adult." The final decision is taken only with the asylum decision (and can, therefore, be appealed only then). However, applicants can request adjustment of their personal data in the national registry of asylum seekers. In practice, this is rare...

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