Council decision to keep asylum seekers who were putative children in hotel accommodation was unlawful, High Court rules

The London Borough of Brent breached its section 20 duties under the Children Act 1989 when it chose not to provide proper accommodation to unaccompanied asylum seekers while awaiting an assessment of their age, a High Court judge has ruled.

In AB & Ors, R (On the Application Of) v London Borough of Brent [2021] EWHC 2843, Mr Justice Poole said that the council’s explanations did not constitute "exceptional circumstances" which would justify a departure from the “usual expectation that, treated as children in need as they were, these claimants should become looked after children”.

The three claimants were housed in a Holiday Inn, alongside 200 adult asylum seekers, because the Home Office took the view that they were adults.

Brent received referrals from several asylum seekers being accommodated at the hotel for services to be provided to them as putative children.

Amongst them were referrals from the three claimants. All three referrals sought Children Act support.

In each case, the council declined to accommodate the claimants under the Act on the grounds that they did not appear to require accommodation.

Responding to one of the claimant's (AB) pre-action letter challenging the lack of support, Brent wrote:

"As a significant number of alleged UASC (Unaccompanied Asylum Seeking Children) have approached the Local Authority, it was proposed that the Local Authority will:

1. Within two working days of the referral through Brent Family Front Door (and legal services) seek to undertake an initial assessment of the person subject of the referral.

The Local Authority will take a preliminary view as to the welfare of the person and assess whether there are any apparent safeguarding issues. Provided that there are no immediate issues and that the person is not going to be dispersed imminently;

2. The person will remain in the accommodation provided by the Home Office, for a short period whilst the Local Authority make arrangements to carry out a Merton Compliant age assessment.

"Should the subject of the referral face immediate risk of dispersal in advance of us completing the age assessment, provided that the Local Authority has been notified by the Home Office of the risk of dispersal, the Local Authority will seek to accommodate such person," the letter added.

The letter listed the facilities provided at the Holiday Inn, which included hotel rooms with their own shower facilities and basic toiletries.

In addition, Brent arranged 24-hour security, a manager and three support staff, meals, medical assistance and three meals a day for the residents.

Brent stated that for "at least a short period", the hotel accommodation provided by the Home Office was suitable, considering the circumstances and subject to the local authority's initial assessment and age assessment.

In the case of AB, it took two and a half months before the age assessment interviews took place. Following the interviews, the council told AB that it would take a further 14 days while the assessor came to their conclusion.

His assessment was concluded five months later, in May 2021, and found that he was 16 when placed in the hotel.

While AB was awaiting the results, his solicitor issued the judicial review claim.

The two other claimants' age assessments concluded that they were 24 and 26, respectively.

In considering the cases of the three claimants, the court declared the local authority was in breach of its responsibilities under section 20 of the Children Act 1989 and had failed to follow statutory and non-statutory guidance.

Mr Justice Poole acknowledged the difficulties faced by Brent which suddenly had responsibility to deal with a number of asylum seekers who claimed to be children. "There may well be circumstances in which a local authority can reasonably decide that it does not appear to it that an unaccompanied asylum seeking child who is a child in need, requires accommodation. Perhaps their current accommodation, provided by a person or body other than the local authority, is suitable and/or there can be confidence that the age assessment will be concluded within a very short time. However, I do not have to speculate about such circumstances because they do not arise in these three cases."

The judge continued: “Taking into account all the circumstances, in my judgement the local authority cannot reasonably have concluded that these three claimants, as children in need, who had been placed as adults in accommodation unsuitable for children, and who were awaiting age assessments that were expected to take four weeks or more to conclude, did not appear to the local authority to require accommodation.”

There was no justification for that view, according to Mr Justice Poole. "There were no grounds to depart from the non-statutory guidance - the fact that these Claimants were placed by the Home Office at the Holiday Inn and were awaiting age assessments that the Defendant local authority knew would be likely to take at least as long to complete as the expected 28 days within that guidance, could not constitute "exceptional circumstances" justifying a departure from the usual expectation that, treated as children in need as they were, these claimants should become looked after children under s.20 of the Children Act.

"It was Wednesbury unreasonable for the Defendant local authority to determine that it did not appear to it that these three Claimants required accommodation, and the local authority was in breach of its duty under s.20 of the Children Act 1989 by declining to provide accommodation to these three Claimants pending the outcome of their age assessments."

He added: “The Defendant's decisions in these three cases not to accommodate the Claimants under s.20 of the Children Act 1989 were unlawful”.

Adam Carey