Arrangements to limit and reallocate unaccompanied asylum-seeking children declared unlawful

A large number of the unaccompanied asylum-seeking children who arrive in the UK have always arrived in Kent. Such children are entitled to be accommodated and supported by the local authority whose area they are in pursuant to s. 20 Children Act 1989. In recent years, a combination of cuts to local government funding and an increase in arrivals of unaccompanied asylum-seeking children has placed very significant demands on Kent County Council’s (‘KCC’) resources.

As a way to respond to this situation, KCC agreed a Protocol (‘the Kent Protocol’) with the Home Office to accept a capped number of unaccompanied asylum-seeking children, with the Home Office agreeing to be responsible for any arrivals above that number, pending their relocation within the UK to other local authorities who would in turn be responsible for them. This was done via the National Transfer Scheme Protocol (‘the NTS Protocol’), whereby the Home Office would transfer children to other local authorities without KCC’s involvement.

The Home Office placed the children not placed in KCC’s care in adult asylum accommodation, creating a very significant safeguarding risk. As a result of the Home Office’s actions, hundreds of the children went missing (and remained missing at the conclusion of the proceedings) and many are believed to have fallen into the hands of traffickers.

The charity Every Child Protected Against Trafficking (“ECPAT”) brought proceedings challenging these arrangements. The key issues identified by the Court were:

1. Whether KCC was in breach of its duties under the Children Act by placing a cap on the number of children it would receive;
2. Whether it was lawful for the Home Office to place unaccompanied children in adult asylum hotels rather than in local authority care.
3. Whether the NTS Protocol was lawful.
4. Whether the Kent Protocol was lawful.

In [2023] EWHC 1953 (Admin), Chamberlain J gave judgment on a number of preliminary issues and found that local authorities are under a primary duty to accommodate and care for unaccompanied asylum-seeking children (deprecating the practice of referring to such children as ‘UASCs’, he referred to them as ‘UAS children’). KCC accepted that it had been in breach of its duties under s. 20 of the Children Act. Chamberlain J further found that the Kent Protocol was unlawful and both KCC and the Home Office had acted unlawfully in agreeing to it. It was found that, while the Home Office had no express power to accommodate UAS children in hotels, as children were excluded from accommodation powers under s. 94 Immigration and Asylum Act 1999, the Crown had powers to undertake any act that a private individual could, as a matter of common law. In these circumstances, where the Home Office was obliged to act to avoid a breach of Article 2 or 3 ECHR, it could be required to accommodate children. However, that was subject to an important caveat as Chamberlain J found that the power may only be used:

“over very short periods in true emergency situations, where stringent efforts are being made to enable the local authority promptly to resume the discharge of its duties. It cannot be used systematically or routinely in circumstances where it is intended, or functions in practice, as a substitute for local authority care”

The Court found that those limitations had plainly been exceeded here, with some children being placed in hotels for over two years.

The Court’s analysis of the Home Office’s powers may be short-lived, however, as (once in force) the Illegal Migration Act 2023 will give it a power to accommodate and support UAS children directly.

The NTS Protocol was also found unlawful as it provided for the transfer of UAS children between local authorities without KCC’s involvement. This was contrary to ss. 69-73 Immigration Act 2016, which provides for the transfer of responsibility of a child between authorities, but requires the transferring authority to play an active role in the transfer.

Unusually, Chamberlain J listed a second hearing regarding relief ([2023] EWHC 2199 (Admin), “the relief judgment”). He explained the reason for this at §7 of the relief judgment, as follows:

“the unlawful practice must stop. But all parties agreed that it would counterproductive if it had to stop immediately, because that would mean that responsibility for children currently accommodated in hotels (and not in the care of the entry local authority) could not be transferred to other local authorities.”

At the relief hearing, Chamberlain J:

1. Issued an order quashing the Kent Protocol. However, using recently-introduced powers under s. 29A(1)(a) Senior Courts Act 1989, he suspended the quashing order until a fixed date three weeks in the future, recognising that the arrangements would need to be renegotiated and that this would take some time.
2. Quashed the NTS Protocol insofar as it permits the Home Office to make arrangements for the transfer of children without the participation of the originating authority. This was also suspended until a fixed future date.
3. Granted declaratory relief reflecting his findings on unlawfulness.
4. Listed a third hearing to ensure compliance with his judgment (which appears to have been vacated).

Chamberlain J explained his approach as follows:

“The normal position in judicial review is that the court determines the issues before it and then decides what relief to give on one occasion […] Even where the court has found that a public authority has acted unlawfully, the public authority can in general be trusted to comply with the judgment […] There will be rare occasions when a departure from this approach is justified. Where the power in s.29A(1)(a) to suspend a quashing order is exercised, it may be necessary to hold a further hearing to check that the conditions for suspension have been complied with and to determine whether the suspension should be extended."

This demonstrates the flexibility of the new suspended quashing orders which have been used creatively here to ensure pressure is kept on public bodies found to have been acting unlawfully but where an immediate sanction could lead to undesirable consequences. This case is also a reminder that, in appropriate cases, the court may be willing to engage in “rolling” judicial review despite its usual deprecation of such an approach. Such cases are likely to be rare, however; as Chamberlain J noted “[i]f the court does not retain some further role, there is a serious danger that the parties will revert to positions of each blaming the other and that these positions will lead, again, to an impasse”.

Miranda Butler is a barrister at Landmark Chambers specialising in public law and human rights. She also teaches at the London School of Economics.