Rejection of unaccompanied asylum seeking children unlawful for lack of reasons – Court of Appeal

4 October 2018 by

MIG-1Help Refugees Ltd, R (on the application of) v Secretary of State for the Home Secretary [2018] EWCA Civ 2098 – read judgment

This was an appeal by Help Refugees Ltd against the refusal of its application for judicial review of the secretary of state’s consultation process regarding the relocation of unaccompanied asylum-seeking children under Section 67 of the Immigration Act 2016.

Background law and facts

This provision was passed in response to the mass migration into Europe of unaccompanied asylum-seeking children (UAS children) from the Middle East and North Africa.  Section 67 established a scheme whereby the secretary of state was required to arrange for the relocation of “specified number” of UAS children. That number was to be determined by the secretary of state in consultation with local authorities. Because the s.67 scheme was not the only route by which UAS children might lawfully enter the UK, the specified number was to represent the highest number of s.67 UAS children that the local authorities could reasonably accommodate. It is inherent in the provision that the interests of UAS children in being located in the UK have to be balanced against the interests of other children for whom local authorities are responsible, and the public interest in ensuring that there is reasonable resource capacity in the system to accommodate the UAS children. In late 2015 – 2016 the number of migrants hugely accelerated in France, reflected in the increase in attempts to make unauthorised access to the UK from France through ports in Kent. This in turn imposed a huge burden on the local authorities in that region to fulfil their obligations under the Children Act, necessitating relocation to other parts of the UK.

On 8 September 2016, the Home Office wrote to all local authorities asking each to specify the number of children it could accept under s.67. By October, when the refugee camps in Calais were being cleared, UAS children in France were assessed for transfer under s.67 against published criteria, such as age, length of time in Europe, and country of origin (with older Sudanese and Syrian UAS children being allowed in). UAS children in France were assessed for transfer against these published criteria. For practical purposes, those who satisfied the criteria were transferred; and those who did not were not. The latter were told simply that they had not met the eligibility criteria –

“Age 18+” or “Criteria not met”.

The charity challenged both the lawfulness of the consultation process and the adequacy of the reasons given to the rejected children. The Divisional Court rejected both grounds of challenge ([2017] EWHC 2727 (Admin)).

The charity argued that the secretary of state had (1) failed properly to discharge her duty to consult; (2) breached her common law duty of procedural fairness by failing to give adequate reasons to the rejected children.

Hickinbottom LJ, giving judgment for the Court, allowed the appeal.

Reasoning behind the judgment

Claimant’s Ground 1: Consultation

The secretary of state had properly discharged her duty to consult. The purpose of the instant consultation was to enable the secretary of state to determine the specified number of UAS children for the purposes of s.67.  Identifying the figure to be specified required more than “simple maths”.

Indeed, it involved a singularly sophisticated exercise involving the balancing of a wide variety of rights and interests, including the best interests of the children potentially affected (including, but not restricted to, UAS children in Europe) and a panoply of social and economic factors which required the exercise of very considerable and complex assessment and judgment by the Secretary of State.

The secretary of state had to ensure that the UK could continue to comply with its international humanitarian obligations, and she had to make a realistic assessment of the facilities available and the demands on the various local authorities.  Section 67 clearly expressed the Parliamentary intent that the UK should do more than its then-current commitments towards UAS children in Europe, in the face of the humanitarian crisis that had arisen in (particularly) France, Greece and Italy; and in the light of its international obligations with regard to children. However, it was also important that the specified number of UAS children could reasonably be accommodated by local authorities who have the statutory burden of looking after such children.

A balancing exercise was required, and the consultation was part of the overall assessment. Because the legislation set no parameters for the consultation, its nature and scope was a matter for the secretary of state, subject only to challenge on judicial review grounds. The secretary of state had to determine the reasonably highest number of children that the UK could take, and what was reasonable was a matter for her judgment. Because of all the variables, the assessment was necessarily a broad-brush one, and the secretary of state had a very wide discretion as to how the consultation was conducted, how the assessment was made, and whether the information gathered enabled her to determine the specified number.

Claimant’s Ground 2: Reasons

The common law would readily imply requirements of procedural fairness into a statutory framework, even where the legislation was silent. The rule of law required effective access to justice, and where an administrative decision was made, sufficient reasons had to be given to enable the person affected to challenge it in the courts. The right to judicial review “must have substance”:

reasons not only assist the courts in performing their supervisory function, they are often required if that function is not to be disarmed.

It was not sufficient simply to tell the rejected children that they were ineligible: the reasons for an adverse decision could be complex, and the children had to be able to understand why they had been judged ineligible in order to have a proper opportunity to challenge that decision. So, for example, if a boy presenting as a 14 year old Sudanese national is refused on the basis of “Criteria not met”, he would have no way of knowing whether he had been refused because his claimed nationality was disbelieved, or because he was considered to be aged over 15, or because he had arrived in Europe or the Calais camp too late, or because he had not satisfied the best interests test.

In Hickinbottom LJ’s view, the reasons given for rejecting a child assessed against the criteria presented to them were “patently inadequate”.

David Manknell and Amelia Walker of 1 Crown Office Row acted for the Secretary of State in this case. They have had nothing to do with the writing of this post.

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