Another Dubs amendment challenge ends in hollow victory

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The High Court has ruled that the Home Office should have published its policy about transferring child asylum seekers to the UK from Calais earlier, but dismissed arguments about the substance of the policy.

ZS v Secretary of State for the Home Department [2019] EWHC 75 (Admin) concerns an unaccompanied asylum-seeking child from Afghanistan. ZS was refused transfer to the UK under section 67 of the Immigration Act 2016, known as the “Dubs amendment”. The Home Office said that he failed to meet the nationality or vulnerability criteria used by to identify which children should benefit from the scheme.

The criteria used at the time limited transfers to Syrian and Sudanese children who were at high risk of sexual exploitation. ZS argued that the policy should included Afghan children who were vulnerable for other reasons, such as mental or physical health problems.

Mr Justice Ouseley rejected both of those arguments. He noted that there was a significant difference in the success rates for asylum claims from Afghanistan and the two countries identified in the policy. Since Home Office officials did not have time to conduct a full refugee status determination, it was reasonable for them to rely on a nationality criterion to work out which children were most likely to be refugees. The judge went on to rule that the use of sexual exploitation as the only vulnerability factor was lawful:

I accept her contention that broader categories of vulnerability could have been used; they were widened in March 2017, after all. But I do not accept that makes it unlawful for there to be no mental health criterion or other more general vulnerability criteria. All children residing in Calais could be considered to be vulnerable in some way or other, and a way to determine the most vulnerable had to be devised. The criterion selected served the purposes of s67, even if broader criteria might also serve them.

Ouseley J did, somewhat grudgingly, follow the Court of Appeal judgment in Help Refugees, which held that the Calais children should have been given better quality reasons for refusal. But in this case there had been little prejudice because reasons had been provided shortly after through the litigation.

Finally, the judge also ruled that the policy should have been published earlier, albeit that this had made little difference to ZA.

Throughout a lengthy judgment, Ouseley J makes frequent reference to the evidence of the same Home Office officials who were found to have misled the court in Citizens UK. His unquestioning reliance on that evidence may have not made a difference to the outcome of this case, but it certainly raises questions about how serious the High Court is about enforcing the government’s duty of candour in judicial review claims. Sadly for ZA and the other children stuck in France hoping to be transferred to the UK, this case will have no effect on their situation.