The Court of Appeal has returned to the legal issues arising from the closure of the Calais refugee camp in September 2016 and section 67 of the Immigration Act 2016, which forced the Home Office to develop a process for admitting unaccompanied children from the camp into the United Kingdom. This time it has confirmed its earlier ruling that Article 8 of the European Convention on Human Rights was not breached by flaws in the process. The case is R (FTH) v Secretary of State for the Home Department [2020] EWCA Civ 494.

Background: the Calais cases

There has been a lot of litigation on behalf of children stuck in France who want to come to the United Kingdom. The results have been mixed.

In Citizens UK [2018] EWCA Civ 1812, the Court of Appeal held that the Home Secretary breached the common law duty of procedural fairness because she did not provide the children with reasons for refusing to allow them in. The court really threw the book at the Home Office, finding not only that decision-makers had deliberately withheld decisions from children in order to make it more difficult to challenge them, but also that the Home Office had misled the High Court judge who initially dismissed the case.

But, in an appeal heard at the same time, AM [2018] EWCA Civ 1815, the same court slammed the Upper Tribunal under then-President McCloskey for making mandatory orders requiring the Home Office to admit some children from Calais. Lord Justice Singh said:

It does not follow from a finding that there has been a breach of the requirements of procedural fairness that a court or tribunal has the power to make a mandatory order requiring a public authority to exercise its powers in a particular way. This is fundamental to the separation of powers as between the courts and tribunals, on the one hand, and the executive, on the other. Each must respect the other’s proper functions.

Then in Help Refugees [2018] EWCA Civ 2098, the Court of Appeal once again found that there had been a breach of procedural fairness, this time in the process of consultation with local authorities to identify how many children could be admitted from Calais. But it ruled that the consultation process was entirely lawful despite the errors. Similarly, in ZS [2019] EWHC 75 (Admin), the High Court ruled that the Home Office policy on section 67 should have been published earlier, but declined to make any wider findings of unlawfulness about the process.

The finding in FTH

Nonetheless, the Court of Appeal has returned to the Calais process for probably the final time.

In AM, the Court of Appeal ruled that there was no breach of Article 8, but in an earlier decision the Upper Tribunal had ruled that the Calais decision-making process did breach Article 8.

Returning to the issue in FTH, the Court of Appeal has confirmed that Article 8 was not breached, notwithstanding the failure to give the children individual reasons which amounted to breach of procedural fairness at common law. The judgment of the court concludes:

In our view, this case indistinguishably falls within the proposition established by AM, which is binding upon us.

Looked at as a whole, the story of litigation about the closure of the Calais camp illustrates the frustrating nature of judicial review. Lawyers for the children have been able to identify unlawful aspects of the process but it has taken years for authoritative conclusions to be reached. In the meantime, many of the children will have moved on. Judges have been reluctant to criticise the substantive decisions made by the Home Office — with the honourable exception of President McCloskey’s Upper Tribunal, which was prepared to abandon strict constitutional principle in order to help.

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