Unfair Home Office treatment of lone refugee children denied entry to the UK under ‘the Dubs Amendment’
The Court of Appeal held that unaccompanied child refugees in Calais refused entry to Britain under the ‘Dubs Amendment’ (s.67 Immigration Act 2016) were given ‘patently inadequate’ reasons for the rejection of their applications; the process established by the Home Office to consider children for transfer had breached the common law duty of fairness and was unlawful.
Members of Doughty Street Chambers appeared for two of the parties. The Appellant NGO, Help Refugees was represented by, among others, Laura Dubinsky, instructed by Leigh Day Solicitors. The Intervener, the AIRE Centre, was represented by Caoilfhionn Gallagher QC, Katherine O’Byrne and Jennifer Robinson, instructed by Freshfields.
Children formerly resident in the Calais ‘Jungle’ camp considered for transfer to the UK under the Dubs Amendment were given no written decisions let alone detailed reasons for refusal and there was no review mechanism by which children could challenge decisions they believed were wrong. The Court of Appeal accepted that the lack of adequate reasons for refusals meant that lone refugee children had ‘no real prospect’ of being able to challenge adverse decisions before the courts of England and Wales.
Help Refugees, with the support of the Intervener the AIRE Centre, also argued in their appeal that the Home Office consultation with local authorities concerning how many unaccompanied child refugees local authorities could support was so unfair as to be unlawful. The Court of Appeal dismissed that part of the appeal, upholding the lawfulness of the consultation.
Under section 67 of the Immigration Act 2016 the Home Office was required, as soon as possible after the passing of the Act, to make arrangements to relocate to the UK and support a ‘specified number’ of unaccompanied refugee children from other countries in Europe, that number to be determined in consultation with local authorities.
The initial number was set at 350 but following investigations by the Help Refugees’ legal team, the Home Office was compelled to admit that 130 places had been overlooked: the ‘specified number’ was accordingly increased to 480.
The Help Refugees litigation also resulted in the Home Office consenting to a declaration that the ‘specified number’ of children to be transferred under the Dubs Amendment was exclusive of any children transferred under the UK’s pre-existing EU law obligations (the Dublin III Regulation). The Home Office had initially sought to argue that it could meet its obligations under the Dubs Amendment principally by transferring children to the UK which it was already required to transfer by the Dublin III Regulation. Transfers of children under the Dublin Amendment (properly understood) to the UK began only after Help Refugees brought its legal challenge to the Home Office’s interpretation of its duties under that provision.
The Court of Appeal’s judgment can be read here.