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The High Court grants permission in important judicial review considering whether a local authority is side stepping section 20 Children Act 1989 duties to unaccompanied asylum-seeking children

Yesterday Mrs Justice Lang DBE granted permission for judicial review and interim relief in the cases of R (KM, AL and NG) v London Borough of Hillingdon, claims brought on behalf of three unaccompanied asylum-seeking children. In each case, it was accepted by the local authority that the Claimants must be treated as children pending age assessments, and that they were children in need under CA 1989, however the local authority contended that they were not in need of accommodation such that no duty under section 20 arose, on the basis that they were being provided with accommodation by the Home Office in NASS temporary accommodation in a hotel in Hillingdon’s area and that such accommodation was suitable to meet their needs.

This is the first case to consider the suitability of NASS hotel accommodation for unaccompanied asylum-seeking children, which increasingly, local authorities are seeking to assert is suitable for the purposes of CA 1989. Mrs Justice Lang DBE ruled that it was arguable that Hillingdon Borough Council were seeking to side-step their duties owed to the three children in what would be a “significant departure” from statutory guidance and case law. In particular, Mrs Justice Lang DBE considered that asylum seekers under the age of 18 are the responsibility of local authorities and NASS accommodation is not intended by statute for children and is not set up to cater for their needs. The court held that children faced particular risks in shared accommodation with unknown adults and there was no evidence hotel staff had been notified that they were to be treated as children nor were they had they been adequately trained to safeguard them.

Considering the needs of the children, Mrs Justice Lang DBE noted that the Claimants had not been provided with any education support or medical care and had faced practical difficulties in obtaining support owing to the unavailability of interpreters, and that they had been placed in circumstances where they were isolated and scared. The court further took account of the fact that the decision not to accept a section 20 duty, would have an impact on the children’s access to support under leaving care provisions, following their 18th birthdays. The court also accepted that dispersal from NASS hotel accommodation is occurring, which would potentially lead to a child being moved to another location where no facilities for children were available.

The court granted interim relief in all cases, requiring the local authority to accommodate the Claimants as looked after children.  The judicial review claims are to be expedited with a substantive hearing in January 2021.

KM, AL and NG are represented by Antonia Benfield and Donnchadh Greene instructed by Stuart Luke and Martin Bridger of Instalaw.