High Court finds Home Office and Kent County Council acted unlawfully in their treatment of unaccompanied asylum seeking children in a systematic way

In a careful judgment handed down today, Mr Justice Chamberlain held that Kent County Council was and is still acting unlawfully in refusing to accommodate and look after all unaccompanied asylum-seeking children in their area when notified of their arrival by the Home Office. Instead, these vulnerable children have been and continue to be housed unlawfully in hotels by the Home Office which are unsuitable for them, and where they are denied protection and care from a local authority corporate parent. The High Court rejected the Home Secretary’s defence of the use of hotels as an emergency response to Kent County a Council’s breach of its mandatory Children Act duties to these children, finding it unlawful for the Home Secretary to have normalised the routine denial of statutory protections to unaccompanied asylum-seeking children arriving in the UK.

The High Court went on to find that a secret agreement made by Kent County Council and the Home Secretary to formalise and normalise their treatment of unaccompanied asylum-seeking children was unlawful because it sanctioned a cap on the maximum number of unaccompanied children to whom Kent County Council would accept and discharge its Children Act 1989 duties.

ECPAT UK, the lead claimant in this application for judicial review, brought this claim on behalf of the thousands of children who have been unlawfully denied statutory protection because of the collective and individual unlawful action taken by Kent County Council and the Home Secretary. The leading children’s charity was represented by Martin Westgate K.C., Shu Shin Luh and Antonia Benfield, instructed by Freshfields Bruckhaus Deringer LLP. Richard Drabble K.C. of Landmark Chambers was previously involved. ECPAT UK’s claim in respect of the unlawful conduct of both Kent County Council and the Home Secretary was allowed in its entirety.

In opening his judgment about the public importance of the issues raised in the claim, Mr. Justice Chamberlain said this about the primacy of Children Act duties in this context: “Ensuring the safety and welfare of children with no adult to look after them is among the most fundamental duties of any civilised state.” All of them, he held, were “especially vulnerable” because “all have travelled long distances. Some have been abused or mistreated in their country of origin or on their journey here. Some are victims of human trafficking. Many speak little or no English and are ill-equipped to navigate life as an asylum-seeker in the UK.”

Since July 2021, over 5,400 unaccompanied asylum-seeking children have been temporarily accommodated by the Home Office. According to data given to Parliament on 3 April 2023, 447 UAS children had by that time gone missing from these hotels, mostly within 72 hours of arrival; and 186 were still missing. At the time of the hearing, 154 were missing. Information provided to the Judge show that most of the missing children are 16 or 17-year olds but they also include 11 children aged 15, a 14-year old and a 12-year old. Neither Kent County Council nor the Home Secretary knows where these children are, or whether they are safe or well. There is evidence before the Judge that some have been persuaded to join gangs seeking to exploit them for criminal purposes.

The Judge described these children as having “been lost and endangered here, in the United Kingdom. They are not children in care who have run away. They are children who, because of how they came to be here, never entered the care system in the first place and so were never “looked after”. 

A summary of the Judge’s findings is as follows (and set out at paragraph 213 of the judgment):

• Kent CC was and is acting unlawfully, in breach of its duties under the CA 1989, by failing to accommodate, and then look after, all UAS children when notified of their arrival by the Home Office. In ceasing to accept responsibility for some newly arriving UAS children, while continuing to accept other children into its care, Kent CC chose to treat some UAS children differently from and less favourably than other children, because of their status as asylum seekers. This violates a fundamental aspect of the statutory scheme: that a local authority’s duties under the CA 1989 apply to all children, irrespective of immigration status, on the basis of need alone.

• Kent CC intended and expected that the Kent Protocol would help to avoid the existing illegality which had been acknowledged, but the protocol’s terms included a cap on the numbers of UAS children which Kent CC would accept. It is inherent in the concept of a cap that Kent CC will continue to refuse to discharge its statutory duties in respect of a particular cohort of children – i.e. UAS children who present themselves at a time when the numbers of UAS children already in care have reached the cap. This formalised a policy which would induce a person who follows it to breach their legal duty. The policy is therefore unlawful. Since the Home Secretary agreed the Kent Protocol, the unlawfulness is attributable to her as much as to Kent.

• There is nothing in the terms of ss. 69-73 IA 2016 which makes the prior exercise of functions by the transferring authority a precondition of the transfer of responsibility. However, the IA 2016 does not empower the Home Secretary to prepare a scheme for the transfer of responsibilities other than in accordance with arrangements made by the “first” or “transferring” authority with the “second” or “receiving” authority. Sections 69-73 provide for the transfer of responsibility for UAS children between local authorities. They do not provide for transfers in which the first authority plays no part at all. At its inception the NTS Protocol was fully consistent with these aspects of the statutory scheme. But, although the NTS Protocol does not say so in terms, the practice has been that the arrangements for transfers in these cases are made between the Home Secretary and receiving authority, with no part being played by the first authority. This is unlawful.

• The power in s. 72(3) IA 2016 is to direct compliance with the scheme generally, rather than in an individual case. It follows that the Home Secretary has exercised the only power of direction she has. The statute contains no bespoke mechanism for enforcing compliance with a direction. But the absence of such an express power does not matter, because the conferral of a power to “direct” a local authority to “comply” with the scheme necessarily implies that, where the direction is lawfully made, the local authority is under a duty to comply with it. The duty is enforceable by proceedings for judicial review even without an express enforcement power. The Home Secretary could have taken steps to enforce that direction by judicial review proceedings against recalcitrant local authorities. Whether her failure to do so is irrational is not among the preliminary issues for determination at this stage.

• (1) The Home Secretary has power at common law, or under s. 3(5) CA 1989, to accommodate children in hotels. (2) However, the exercise of that power gives rise to a serious possibility that an offence would be committed by a person carrying on or managing the hotel. This serves to underline that the provision of accommodation by a person other than a local authority is not in accordance with the scheme laid down by Parliament. (3) This scheme envisages that children are to be accommodated by local authorities, with all the concomitant duties imposed on them in respect of looked after children. The power may 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. (4) From December 2021 at the latest, the practice of accommodating children in hotels, outside local authority care, was both systematic and routine and had become an established part of the procedure for dealing with UAS children. From that point on, the Home Secretary’s provision of hotel accommodation for UAS children exceeded the proper limits of her powers was unlawful. (5) There is a range of options open to the Home Secretary to ensure that UAS children are accommodated and looked after as envisaged by Parliament. It is for her to decide how to do so.

• If there is any breach of the timescales in the NTS Protocol, the primary breach is on the part of local authorities, not the Home Secretary. The NTS Protocol itself does not itself provide what the Home Secretary must do in response to a breach by one or more local authorities. The decision whether and if so how to remedy such breaches is for her, subject to the usual public law constraints. Whether she has acted irrationally, or otherwise unlawfully, in taking that decision is not a matter that can be determined as a preliminary issue.

• Accommodating children in hotels engages CA 1989 functions on the part of the local authority in whose area the hotel is situated. Those functions will certainly include the s. 17 assessment function and the s. 47 safeguarding function. Given the vulnerability of the UAS child cohort, and their likely need for the services available to looked after children, it is also likely to include the full s. 20 accommodation duty. There is, however, no hard-edged legal duty on the Home Secretary not to accommodate children in hotels in local authority areas where the authority already exceeds the 0.1% threshold. The argument that the Home Secretary misdirected herself, and the broader allegation that the Home Secretary has failed properly to consider the impact of accommodating children in Hove on Brighton & Hove CC’s ability to perform its CA 1989 duties, are not among the preliminary issues and are not suitable for determination at this stage.

A hearing is held today, 27 July 2023, to determine what steps Kent County Council and the Home Secretary must now take to bring to an end the unlawful denial of statutory protection to unaccompanied asylum-seeking children which has persisted for two years.

The judgment can be found here.

Martin Westgate KC, Shu Shin Luh and Antonia Benfield are members of Doughty Street’s Children’s Rights Group and its Public Law, Immigration and Community Care teams. Martin Westgate K.C. is the Team Leader for the Public Law Team. Shu Shin Luh is co-lead of the Children’s Rights Group and Deputy Team Leader of the Community Care Team.