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Local authority’s challenge against accommodating unaccompanied asylum seeking children fails


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It’s never a good sign when a local authority is so desperate to shirk responsibility for asylum-seekers that it raises judicial review proceedings. In R (Medway Council) v Secretary of State for the Home Department [2023] EWHC 77 (Admin), a local authority challenged the Home Office’s decision to force them to comply with the National Transfer Scheme (NTS), set up to spread the responsibility of accommodating unaccompanied asylum-seeking children between local authorities.

The NTS followed on the back of there being disproportionately higher numbers of asylum-seekers arriving in Kent (through the port of Dover) and in the London Borough of Hillingdon (through Heathrow Airport). The aim was to ensure an equitable distribution of asylum seekers and to spread the load to other local authorities. Knowing that local authorities might protest at this idea, the Home Office had powers to compel local authorities to comply so long as it would not “unduly prejudice” them, under section 72(4) of the Immigration Act 2016.

Medway Council argued that their children’s services had been ranked by OFSTED as ‘inadequate’ and their ‘in-area’ accommodation for looked-after children was at capacity. The Court accepted that unilaterally being forced to house asylum-seekers meant some prejudice was inevitable for local authorities, but the question was whether the prejudice was “undue”. A local authority would only be exempt from participating in the NTS in “circumstances of crisis amounting to a complete breakdown”.

This is an eminently sensible decision by the High Court, who noted that Medway’s unaccompanied asylum-seeking children population was significantly lower than the regional average and it had not participated in the voluntary NTS at any time. Budgetary constraints and lack of resources seem to be universal excuses across local authorities, but they cannot trump the more important duty to safeguard and promote the welfare of children, some of whom will have had harrowing experiences which brought them to the UK.

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Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.