The Home Secretary’s systematic and routine accommodation of unaccompanied asylum-seeking children in hotels is unlawful, the High Court has held. The case, R (on the application of ECPAT UK) v Kent County Council and another [2023] EWHC 1953 (Admin), looks at what happens when local authorities don’t comply with their duty to look after unaccompanied children.

Background

Most of the UK’s unaccompanied asylum-seeking children arrive in Kent after crossing the English Channel. This means that Kent County Council is legally responsible for accommodating and looking after them under section 20 of the Children Act 1989. In 2021, it decided that it simply didn’t have the resources to do so for new arrivals in addition to the other children already in its care. It announced that it wouldn’t take any more.

The Home Secretary responded by agreeing a scheme, called the Kent Protocol, under which Kent County Council would continue to take a limited number of unaccompanied children. For the ones the council didn’t take, she commissioned hotel accommodation while they waited for a different local authority to take them under the National Transfer Scheme.

Over 5,400 children have been accommodated in these hotels since July 2021. No local authority is taking responsibility for them; they are entirely outside the care system. As of July 2023 when the High Court heard the case, 154 of them were missing, with ages ranging from 12 to 17. Although the National Transfer Scheme Protocol says that they should be transferred to a new local authority within 10 working days, this doesn’t always happen.  

A charity, Every Child Protected Against Trafficking, applied for judicial review. It argued that Kent County Council and the Home Secretary were both acting unlawfully.

The judgment

The judge, Mr Justice Chamberlain, held that Kent County Council was in breach of its legal duty to accommodate and care for the unaccompanied children in its area. The council had actually admitted this, although it preferred to use the euphemism ‘derogation’. It followed, Chamberlain J said, that the Kent Protocol was unlawful because it set out a policy telling staff that they could refuse to do something – accommodate certain children – that the law said they had to do. Both the council and the Home Secretary had acted unlawfully in agreeing to it.

As to the use of hotels, all the parties agreed that the Home Secretary has the legal power to accommodate unaccompanied asylum-seeking children. This is because under Article 3 of the European Convention on Human Rights the UK has to ensure that no one is subjected to ‘inhuman and degrading treatment’. Chamberlain J agreed. He emphasised, however, that the power can only be used ‘over very short periods in true emergency situations’. In putting a duty on local authorities under section 20 of the Children Act, Parliament intended that children be accommodated and looked after by a body with the necessary experience and expertise. The Home Secretary ‘systematically or routinely’ providing accommodation herself would frustrate that intention and be unlawful.

That is what happened here, Chamberlain J concluded. The use of hotels might have started off as an emergency measure when Kent County Council first refused to accept unaccompanied asylum-seeking children. By December 2021 at the latest, though, it had become entrenched and normalised. By continuing routinely to place them in hotels, the Home Secretary was acting unlawfully.

You can read the relief order made in the case here if you are interested.

Concluding thoughts

The Home Secretary may be entitled to a bit of sympathy here. The circumstances leading her to use hotels weren’t entirely of her own making. Rather, they arose because of Kent County Council’s refusal to accommodate unaccompanied asylum-seeking children.

However, as Chamberlain J pointed out, there were other options open to her. She could have encouraged the Education Secretary to make an order directing the council to comply with its duty under the Children Act. She could have increased its funding or taken action to ensure that other local authorities accepted children more rapidly. She did none of these things.

Interestingly, Chamberlain J said that the Home Secretary’s use of hotels exclusively for children may actually be a criminal offence under section 11(1) of the Care Standards Act 2000. This turns on whether the hotels as currently run meet the legal definition of an unregistered children’s home. The Independent Chief Inspector of Borders and Immigration suggested last year that they do. Chamberlain J didn’t resolve the issue, saying it would be for a criminal court to determine.

Under the Illegal Migration Act 2023, the Home Secretary will have an express power to provide accommodation and ‘other types of support’ to unaccompanied children. She will also be able to direct that a child is transferred between that accommodation and local authority care. The relevant sections are not yet in force. When they are, further judicial reviews will no doubt be brought to establish the scope of the new powers and how they interact with the Children Act.

This is one of several recent cases highlighting failures by the Home Secretary adequately to meet asylum seekers’ accommodation and support needs. As Chamberlain J said, ‘[e]nsuring the safety and welfare of children with no adult to look after them is among the most fundamental duties of any civilised state’. It can only be hoped that the government makes more effort to comply with that duty in future.

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