The Home Secretary must set out a lawful plan to completely end its use of hotels for accommodating lone refugee children.

This is the conclusion of Judge Chamberlain in  R (on the application of Kent County Council) v Secretary of State for the Home Department [2023] EWHC 3030 (Admin).

The case is the latest in a series of judicial reviews that have challenged failures by the Home Office, and by local authorities, to meet their legal duties to accommodate and look after ‘unaccompanied asylum-seeking children’, as these children are often referred to.

Background

The latest challenge was brought by Kent County Council, backed by Brighton and Hove City Council and East Sussex County Council. These councils have been particularly impacted by the big rise over recent years in unaccompanied children arriving by boat across the English Channel.

Earlier this year, Kent County Council was itself found to have broken the law by making an agreement with the Home Office, called the Kent Protocol, to cap the number of unaccompanied asylum-seeking children landing in Kent that the local authority would look after.

This time, the councils asked the judge to declare that the Home Office has been acting unlawfully in the way that it runs a scheme called the National Transfer Scheme. This was set up in 2016 and is supposed to enable unaccompanied asylum-seeking children to be moved from the local authority where they entered the UK to other local authorities that are facing less pressure on their children’s services.

The judgment

The councils asked the judge to find that the Home Office was running the National Transfer Scheme unlawfully in multiple ways. They wanted the judge to order the Home Office to implement an effective scheme.

The councils relied broadly on three arguments. Firstly, the Home Office should have put more pressure on some local authorities to take more children. Secondly, central government should also have increased funding to councils to assist them to accommodate more children. Thirdly, by continuing to house children in hotels within the local areas of the councils, the Home Secretary was blocking the councils from being able to meet their own legal duties under section 20 of the Children Act 1989. These required the councils, not the Home Office, to accommodate and look after children within their local areas.

Judge Chamberlain did not accept these arguments but did nevertheless find that the Home Secretary had acted irrationally, and therefore unlawfully, when making arrangements for transfer of children between December 2021 and 27 July 2023.

The Home Office had failed to recognise that it should never have agreed to the Kent Protocol, telling Kent County Council that it did not need to provide housing for children even though the law said it had to. In addition, the Home Office was by December 2021 using hotels as its systematic and routine solution to the housing of children. It was not allowed to do this, because the Home Office was only allowed to use hotels as a true emergency measure. 

Judge Chamberlain did not accept that the Home Office had continued to act unlawfully since his earlier decision on 27 July 2023. He found that the Home Office had been working with Kent County Council since July to make improvements to the system for transferring children. The number of children being accommodated in hotels had been reduced from 154 in July 2023 to 19 by October 2023.  The judge accepted that the parties were in negotiations with a view to Kent County Council taking a much larger number of unaccompanied asylum-seeking children into its care, and that some time was needed for these arrangements to be agreed before changes to improve the running of the National Transfer Scheme could be made. The Home Secretary was also entitled to have some time to consider whether to commence new provisions within the Illegal Migration Act 2023 that would allow the Home Secretary to accommodate unaccompanied asylum-seeking children.

The judge made very clear that, once the arrangements between Kent County Council and the Home Secretary are agreed, the Home Secretary must then set out a plan for the operation of the National Transfer Scheme. In order to be lawful, the focus of this plan must be on eliminating permanently, not merely reducing, the use of hotels to accommodate unaccompanied asylum-seeking children.

The judge identified minimum requirements for the new plan to be lawful. It must recognise Home Secretary’s own responsibility for remedying the unlawful housing of children and ensuring this does not recur. It needs to estimate the numbers of children likely to arrive seeking asylum in the short and medium term. It must model the speed and quantity of transfers of children likely to be required to ensure that no children end up accommodated in hotels. It must include other arrangements so that the transfer system can eliminate permanently the use of hotels to house asylum-seeking children, such as financial incentives to receiving authorities, dispute resolution measures and enforcement proceedings.

Comment

These linked judicial reviews have highlighted the flaws and delays in the operation of the National Transfer Scheme for lone refugee children and the disproportionate pressure on a small number of local authorities, notably Kent County Council. The judgments have forced a halt to the Home Office’s intended expansion of the use of hotels to house unaccompanied children.

Unless the provisions of the Illegal Migration Act 2023 are to be introduced — and no plans to introduce them have been announced as of date of this article — the Home Secretary must now set out a lawful plan for transferring unaccompanied asylum-seeking children between local authorities.

Any plan that fails to comply with the minimum requirements identified by Judge Chamberlain will be open to a further rationality challenge.

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