Department for Education hit with pre-action protocol letter over placing of unaccompanied asylum seeking children in hotels

The Good Law Project (GLP) has joined forces with a charity to threaten the Home Office and the Department for Education with a judicial review of the policy of placing unaccompanied asylum-seeking children (UASC) in hotels.

The GLP sent a pre-action protocol letter on behalf of children’s rights charity Article 39, which claimed a breach of the European Convention on Human Rights (ECHR), and a breach of the Tameside duty, which requires decision-makers to seek out the relevant information that they need to make their decision.

The potential claim comes in the wake of Immigration Minister Robert Jenrick’s comments that revealed there had been 440 missing episodes with 200 children remaining missing since the temporary policy was launched almost two years ago.

The charity said it chose to seek legal action following the news. It also noted that it is seeking protective action by the courts “because so-called urgent and temporary arrangements have persisted for more than 19 months”.

The following four grounds were advanced in the letter before claim: 

• There is no proper statutory basis for the Secretary of State for the Home Office (SSHD) to provide accommodation for unaccompanied asylum-seeking children in hotels.
• The use of hotel accommodation for UASC is irrational because it is not in the best interests of UASC in that it fails to take into account the nature of the accommodation and the lack of safeguarding and appropriate care, protection and support.
• The use of hotel accommodation for UASC breaches of the systems duties under Article 3, 4 and/or 8 ECHR and/or is irrational because it fails to have proper regard to obligations under the Human Rights Act 1988.
• There has been a breach of the Tameside duty to make sufficient enquiries and/or ensure the decision-maker has adequate information.

In regard to the Tameside ground, the claimant argues that the evidential basis for and efforts made to inform the decision to continue the arrangements to place UASC in hotels “are entirely unclear”.

“In these circumstances, it appears to our client that the SSHD and [Secretary of State for Education] have failed to comply with the Tameside duty to ask themselves the right questions and/or take reasonable steps to acquaint themselves with the relevant information to enable they to answer it correctly [sic],” the letter before claim reads.

Article 39 has also commenced wardship applications to the Family Division of the High Court in respect of seventy-six children who remain missing from a hotel in Brighton and Hove. If successful, the court will be required to consider appointing a children’s guardian to each child and the court would then supervise action taken by the Government and others to protect them.

The pre-action letter set a deadline for a response from the Government of 14 March. However, it is understood that the Government requested an extension to the deadline.

Carolyne Willow, Article 39’s Director, said: “The Children Act 1989 does not differentiate children on the basis of where they were born, and this legislation is absolutely clear that it is local authorities who have the legal responsibility for looking after and protecting individual children.”

She noted: “In concocting this so-called emergency arrangement, which has lasted more than 19 months, the Home Office has kept nearly 5,000 children away from our country’s child welfare system operated by local authorities. This lawlessness puts children at risk and degrades our child welfare system.

“We’re a very small children’s rights charity and we would not be able to take this legal action without support from the Good Law Project.”

Willow added that she hoped the involvement of the family court will lead to a robust child protection response for the children who went missing from the hotel in Brighton and Hove.

She also called for greater funding for local authorities to look after UASC.

A Home Office spokesperson said: “Due to the rise in dangerous small boats crossings, the Government has had no alternative but to urgently use hotels to give unaccompanied asylum-seeking children arriving in the UK a roof over their heads. 

“The wellbeing of children and minors in our care is an absolute priority and there is 24/7 security at every hotel used to accommodate them.”

The Department for Education has been approached for comment.

Adam Carey