This is the second of two Court of Appeal cases this year about whether the Home Office behaved unlawfully towards vulnerable child asylum seekers during and after the demolition of the Calais refugee camp in 2016. The first appeal, R (Citizens UK) v SSHD [2018] EWCA Civ 1812, concerned children with family members in the UK, who would have been entitled to transfer to the UK under the Dublin III Regulation in the long run. In that case, the court ruled that brief, one- or two-word reasons for refusing an expedited transfer were unfair and unlawful.

R (Help Refugees) v Secretary of State for the Home Department [2018] EWCA Civ 2098 is about how the Home Office reacted to the Dubs amendment (section 67 of the Immigration Act 2016). Through the Dubs amendment, Parliament ordered the Secretary of State to admit child refugees to the UK to ease the humanitarian crisis of unaccompanied and uncared for children living in squalid conditions in Calais and the rest of Europe.

The Calais Kindertransport

The key difference between this appeal and Citizens UK is that these children had no connection to anyone in the UK and therefore no individual entitlement to be transferred here. Instead, the Secretary of State was required to consult with local authorities, who look after unaccompanied children, and work out how many children stranded in Calais could be cared for here. As Lord Justice Hickinbottom states, the starting point was to take as many children as possible:

Section 67 thus requires that the specified number for the purposes of transfer under that provision should represent the highest number of UAS children in Europe that could reasonably be accommodated in the UK given the other commitments of local and national government (including commitments to other children).

The United Kingdom should be able to afford to care for a large number of children because it is a rich country. The Dubs amendment was inspired by the Kindertransport rescue effort, which involved the UK taking in around 10,000 predominantly Jewish children from Europe prior to the outbreak of the Second World War, when the UK was much less wealthy that it is today. However, on 20 December 2016, the Secretary of State decided that the UK only had capacity for 350 children. That was later revised up to 480 after the Home Office realised it had mislaid an offer of places in the south west of England.

Help Refugees, an NGO based in Calais, sought to challenge the legality of that figure by arguing that the consultation exercise was unlawful.

Challenge to low number of child refugees helped

Help Refugees identified three problems with the consultation:

1. It did not explicitly state that local authorities needed to commit to take a specific number of children, rather than just their fair share, which meant that some councils got confused and responded with percentages;
2. The end date of the consultation was uncertain, so some councils offered places after the deadline which were not accounted for;
3. The request letter did not make it clear to Scottish councils that they could offer to take children without committing to a separate scheme to re-distribute children already in the UK from over-burdened councils in the south east.

The Court of Appeal rejected all three arguments. Hickinbottom LJ emphasised that setting a number was a complicated task for the Secretary of State:

Indeed, it involved a singularly sophisticated exercise involving the balancing of a wide variety of rights and interests, including the best interests of the children potentially affected (including, but not restricted to, UAS children in Europe) and a panoply of social and economic factors which required the exercise of very considerable and complex assessment and judgment by the Secretary of State.

The court’s rejection of the second and third arguments is unsurprising because the letter sent to councils did state a deadline and the confusion in Scotland was primarily the fault of officials there.

However, the decision to refuse the first argument is harsh. The letter should have made clear that the Home Office wanted a specific number and when some local authorities responded with percentages, the Home Office should have asked for those to be converted into a number. The Secretary of State took two months to set the number of children who would be allowed to enter the UK, so his officials had plenty of time to fix this issue. Help Refugees submitted that as many as 95 children were left stranded in Calais because of this error.

“Patently inadequate” reasons given for refusal

Help Refugees did win on its second argument, which was that children who were refused transfer to the UK should have been given clear reasons for the refusal. All that the Home Office provided to these vulnerable individuals was a spreadsheet stating that they had been assessed as “18+” or “criteria not accepted”. The Court of Appeal ruled that this was unlawful and criticised the Home Office in strident terms:

In relation to the reasons ground, this case is not materially distinguishable from Citizens UK; indeed, at most, “Criteria not met” simply excluded the reason for rejection as being on the grounds of the individual being assessed as an adult, which is barely a reason at all. In my view, if anything, the reasons for a rejection of a child as not satisfying the section 67 criteria were generally less adequate than those for a rejection of a child as not satisfying the Dublin III criteria which were found to be legally inadequate in Citizens UK. On the basis of them, for at least the majority of UAS children rejected for transfer on the basis of the section 67 criteria, there was no real prospect of being able to challenge the decision. That means that the procedure set up by the Secretary of State was in breach of the common law duty of fairness, and thus unlawful.

Hickinbottom LJ also noted that disclosure from Citizens UK indicated that the Home Office had deliberately withheld the reasons for refusal from the children to protect itself from legal challenges.

What does this mean for children turned away?

Unfortunately, the practical outcome of this win is unlikely to be significant for the children who received these unfair and unlawful refusal decisions. The only remedy the court has granted is a declaration that the decisions were unfair. Even if the Home Office goes back and prepares proper decisions, many of the children will now be elsewhere in Europe and uncontactable. We know that the Home Office regularly gets decisions wrong, but we will never know how many of the Calais children were wrongly refused entry to this country and left unable to challenge the decision because they did not know why it was taken.