High Court Rules Home Secretary Unlawfully Used Hotels for Unaccompanied Asylum-Seeking Children's Care under National Transfer Scheme

Citation: [2023] EWHC 3030 (Admin)
Judgment on

Introduction

In the High Court case of Kent County Council v Secretary of State for the Home Department, key legal principles are explored concerning the care and transfer of unaccompanied asylum-seeking children (UAS children). The judicial review scrutinises the lawfulness of protocols and decisions made by public authorities in the management of UAS children’s transfers under the National Transfer Scheme (NTS). The judgment sheds light on duties under the Children Act 1989, compliance with policy instruments, and the rationales behind administrative decisions.

Key Facts

Kent County Council (Kent CC) challenged the operation of the NTS, alleging the Secretary of State for the Home Department acted unlawfully by failing to properly facilitate UAS children’s transfers and ensuring suitable care arrangements. Several protocols and bilateral agreements, including the Kent Protocol, were scrutinised for their adherence to statutory objectives and operational effectiveness. The core debate centered on the systemic use of hotels as alternate care arrangements by the Home Secretary, the accountability of both the Kent CC and the Home Secretary for past unlawful actions, and the sufficiency of current measures to ensure proper care of UAS children.

Several legal principles underpin the analysis of this case, with key statutes and doctrines including:

  • Children Act 1989: The act details local authorities’ duties to provide care for children within their jurisdiction, including asylum-seeking children. Breaches of the act were central to this case.

  • Immigration Act 2016: Introduces the National Transfer Scheme for UAS children, aiming to equitably distribute the care responsibility across local authorities.

  • Padfield principle: This states that a power granted by statute must not be exercised to frustrate the purpose for which it was conferred.

  • Borders, Citizenship and Immigration Act 2009: Under s. 55, public authorities must act with the welfare of children in mind during decision-making processes.

  • Illegality (Rationality and Process): The court explored whether there were any process flaws in the decision-making or whether the decisions taken were outside the range of reasonable decisions the authority could have made – both aspects of irrationality in public law.

  • Duty to Consider Relevant Factors: This principle emphasizes a public authority’s obligation to consider legislatively relevant factors when making decisions.

Outcomes

The court determined:

  • No breaches of the Padfield principle, s. 55 of the Borders, Citizenship and Immigration Act 2009 or any procedural irregularities in the Home Secretary’s historical conduct concerning the operation of the NTS.

  • The Home Secretary’s decision-making regarding the NTS from December 2021 to July 2023 was unlawful due to a failure to consider the partial responsibility for the ongoing situation refused by agreeing to the Kent Protocol, and by unlawfully resorting to hotels for accommodating UAS children.

  • No current irrational decision-making by the Home Secretary post-July 2023 judgment in the organization of the NTS during negotiations with Kent CC was identified. However, should certain provisions of the Illegal Migration Act 2023 not commence, a rational plan for operations to cease the use of hotels must be formulated.

Conclusion

The judgment provides a nuanced understanding of the complexities involved in managing the care of UAS children and the legal responsibilities of respective local and central authorities. It reminds public authorities of their obligations to consider their own role in creating or perpetuating unlawful situations and the necessity of developing responsive and lawful plans to safeguard the welfare of children. Furthermore, the judgment sets out standards for the lawful operation of transfer schemes and the use of alternative accommodations, ensuring compliance with relevant legislation and principles. This case serves as a clarion call to all public authorities involved in the welfare of children to proactively and responsibly fulfill their legal duties.

Related Summaries