In a sorry adjunct to the debate on the government’s asylum and immigration policies, the recent High Court case of R(ECPAT) v Kent County Council & others [2023] EWHC 1953 (Admin) has provided a concerning insight into the government’s approach to the reception of children into the UK who have no adult to accompany or care for them.
There have been long-running tensions between the Home Office and the leaders of Kent County Council (KCC). Most unaccompanied asylum-seeking children (UAS children) enter the UK via Kent, so KCC is required by the Children Act 1989 to provide accommodation for them. In 2021, KCC announced it had reached its full capacity and would no longer accept newly arriving UAS children, though it would still accept other children. The home secretary’s response (in an effort to stave off pending litigation by KCC about its failure to disperse children to other parts of the UK) was to agree a protocol with KCC which included commissioning hotels to house UAS children outside the care system.
Over 5,400 children have been accommodated in hotels through this process. The hotels were intended as a temporary measure but have now been used for over two years. Many children have gone missing from the hotels and the suggestion is that many may have been exploited by gangs.
Chamberlain J in the ECPAT case took a very dim view of these arrangements. Noting that it was ‘among the most fundamental duties of any civilised state’ to ensure the safety and welfare of children who have no adult to care for them, his judgment goes on to note the special vulnerability of children who have travelled long distances, been subject to exploitation, and were unable to speak English. It became apparent that the protocol with KCC had never been published and only came to light during the course of the litigation. In the judgment, this secret protocol, the home secretary’s commissioning of hotels, and the refusal by KCC to accommodate only a limited number of these unaccompanied children, were all deemed unlawful.
Of interest to other local authorities was the court’s consideration of the National Transfer Scheme (NTS). The NTS is a scheme made by the home secretary under section 72(1) of the Immigration Act 2016 for the transfer of responsibilities for UAS children between local authorities in the UK. It aims to distribute responsibility for caring for unaccompanied children more evenly across local authorities. If issues arise between authorities over a transfer, there is an ‘escalation procedure’ involving the Home Office and Department for Education.
Following consultation, the NTS Protocol had been adapted for transfers of children in Home Office hotels, with the Home Office effectively taking the place of the entry local authority. But according to the judgment, the home secretary’s use of hotels to accommodate UAS children was unlawful for several reasons, namely that it undermines the Children Act 1989 scheme that envisages children being cared for by local authorities. As such, the process of transferring children from Home Office hotels without involvement of the entry local authority is contrary to the transfer scheme in the 2016 act. And the judge went on to note that there is a serious possibility that accommodating children in unregistered hotels amounts to a criminal offence, further indicating it goes against parliament’s intended scheme.
According to the judgment, a correct understanding of the statutory regime for transfer under section 72 of the 2016 act requires the transfer of responsibility to take place from one local authority (‘transferring authority’) to another (‘receiving authority’). The precondition is that the transferring authority ‘has’ functions in relation to the child, not that it has discharged those functions. The NTS Protocol originally required a request by the transferring authority but it had been amended to allow for transfers where no local authority had duties - which was unlawful. And, in the KCC cases, the arrangements were between the home secretary and receiving authority, with no involvement of a transferring authority. The judge was clear that the Immigration Act 2016 requires arrangements between local authorities and does not allow the home secretary to transfer responsibility without involvement of a transferring authority.
The transferring authority ‘must take account of the child’s best interests as a primary consideration… and the appropriateness of the transfer must be considered on a case by case basis’.
Having roundly trounced the government’s approach under the NTS the judge offered the following advice to government.
‘In this case, the secretaries of state have a range of options open to ensure that UAS children are accommodated and looked after as envisaged by parliament. These include: directing Kent to comply with its statutory duty under s. 84 CA 1989 (a power which can be exercised by the education secretary); increasing the funding made available to Kent CC with a view to lifting the cap on the number of UAS children the [reception centres] can accept; increasing the financial incentives available to other local authorities to encourage them to accept transfers… more timeously; making more robust the arrangements for dispute resolution in the NTS Protocol (for example, by introducing a binding adjudication mechanism); and bringing judicial review proceedings to enforce the terms of the NTS. It is for the home secretary to decide whether to take any of these measures, or others, and if so in what combination.’
For those children that still remain in hotels, the court suspended its order quashing the NTS to enable arrangements to be put in place for those children to be transferred into local authority care. On 21 August the Home Office wrote to all local authorities with children’s services functions alerting them to the ECPAT judgment and the fact that the NTS has now been amended in the light of the decision – giving greater guidance on how KCC will be making arrangements for transfers and strengthening the escalation procedures where a receiving authority refuses to accept a transferring child. At a follow-up hearing on 15 September the court required the Home Office to ensure that it had removed all children from hotel accommodation by 22 September.
It remains to be seen whether the Home Office takes the judge’s broader advice. Many authorities are under significant financial pressure and, as the judge noted, the provision of services to unaccompanied children is ‘resource intensive’ and, in many areas, there is a dearth of suitable accommodation. At the further hearing on 15 September the Home Office indicated that it was advancing £9.8m to KCC to address the problems of providing suitable accommodation and support. Of course, for other authorities, this may involve greater use of the escalation procedures if there is a refusal to take dispersed children.
In some respects, the criticisms of the secretary of state by the court will shortly become academic. The soon to be in force Illegal Migration Act 2023 gives the secretary of state powers to arrange accommodation and to direct the transfer of children to other local authorities, with powers to force compliance. How the secretary of state approaches that task will be keenly watched by local authorities, and those seeking to provide support to unaccompanied children.
Nick Graham is director of legal and democratic services at Buckinghamshire Council
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