Home Office policy of placing unaccompanied asylum seeking children in hotels was unlawful at point it became "systematic and routine", High Court rules

The High Court has ruled that the Home Office's policy of placing unaccompanied asylum-seeking children (UAS Children) in hotels was unlawful when it became “systematic and routine”, and that the Home Secretary has the power to require local authorities to accept UAS Children via the National Transfer Scheme (NTS).

The court also ruled that a decision by Kent County Council to cease taking UAS Children was in breach of the Children Act 1989 and that a deal between the Home Office and Kent that capped the number of UAS Children the council would take was unlawful. 

In a judgment handed down today (27 July), Mr Justice Chamberlain considered three linked claims from Kent County Council, Brighton and Hove City Council, and children's charity Every Child Protected Against Trafficking (ECPAT) that challenged the Home Office policy of placing UAS Children in hotels and its NTS, which is responsible for transferring UAS Children between local authorities.

The practice of placing UAS Children in hotels is highly controversial and has seen hundreds of children going missing, with evidence suggesting they have joined gangs. At the time of the hearing, 154 children remained missing, the court heard.

Kent has taken in large numbers of UAS Children as a result of its location and has been calling for changes to the NTS for more than two years. Two weeks ago, the council's Monitoring Officer, Ben Watts, issued a section 5 report warning councillors that the council could not meet all of its statutory duties as a result of the pressures on its services.

The report detailed the conclusion of its current and former Directors of Children's Services (DCS) that the competing interests of different sets of statutory duties, including duties to the young people (citizen and UASC) that are already within the council's care, means that the council "would inevitably fall outside at least one of the duties if it was to try and take into its care every UASC who arrives in Kent".

Kent has announced it would stop taking UAS Children several times after the number of children in its care has reached what it considers its limit.

During the course of the litigation, it was revealed that in September 2021, Kent and the Home Office agreed on a protocol (referred to as the Kent Protocol) that meant Kent would accept a capped number of UAS children into its care pending their transfer to other local authorities under the NTS.

At the High Court, ECPAT brought a claim against both the Home Office and Kent, arguing that decisions by Kent to no longer accept UAS Children breached the council's duties under section 20 of the Children Act 1989 to accommodate and look after UAS children.

The charity also argued the use of hotels to accommodate children destined for the care of another local authority is also contrary to the scheme of the Immigration Act 2016.

It further claimed that the Home Office acted unlawfully in agreeing to the Kent Protocol that was premised upon and formalised its breach of section 20 by capping the number of UAS children it will accept.

Brighton and Hove adopted ECPAT's arguments and made added arguments against the Home Office's hotel policy.

Kent meanwhile submitted that as a defendant to ECPAT's claim and claimant in its own claim against the Home Secretary, it accepted that it breached its statutory duty to UAS children who are physically in its area but claimed to be in an "impossible situation".

As set out in its previous section 5 report, Kent argued that if it accepted more UAS children, it would breach another equally important duty to ensure that the children already in its care (both UAS and others) are safe.

The Kent Protocol was an attempt to remedy the admitted illegality, not perpetuate it, Kent argued.

It blamed the failure of its attempt to remedy the situation on the Home Secretary's alleged delay in enforcing transfers from Kent to other local authorities within the ten working day limit set out in the NTS Protocol.

Considering the challenge to the Home Office's hotel policy first, Chamberlain J ruled that from December 2021, the practice of placing UAS Children in hotels became "systemic and routine" and from that point on was unlawful, exceeding the proper limits of the Home Secretary's powers.

The judge further ruled that the Home Office's power to "direct" a local authority to "comply" with the scheme necessarily implies that, where the direction is lawfully made, the local authority is under a duty to comply with it. This means the duty is enforceable by proceedings for judicial review even without an express enforcement power, he said.

Turning to the claims against Kent, Chamberlain J found the council to be in breach of its duties under the Children Act 1989 by failing to accommodate and then look after all UASC when notified of their arrival by the Home Office.

He said: "[It] is well established that the duty is absolute and non-derogable and applies irrespective of the resources of the local authority".

Additionally, in ceasing to accept responsibility for some newly arriving UAS children, while continuing to accept other children into its care, Kent chose to treat some UAS children "less favourably than other children, because of their status as asylum seekers", Chamberlain J said.

He added: "Kent CC's refusal to accommodate and look after UAS Children violates a fundamental aspect of the statutory scheme […]: a local authority's duties under the CA 1989 apply to all children, irrespective of immigration status, on the basis of need alone."

Chamberlain J went on to find that Kent's decision to agree to the Kent Protocol was unlawful as it formalised and endorsed the refusal to accept certain children (when the cap was reached) who the local authority has a legal obligation to accommodate and look after.

It also formalised a policy which would induce a person who follows it to breach their legal duty, he said.

He noted that "responsibility for this unlawful state of affairs lies as much with the Home Secretary as with Kent".

Chamberlain J did not consider Brighton's argument that the Home Secretary failed properly to consider the impact of accommodating children in Hove on Brighton & Hove CC's ability to perform its 1989 Act duties as it was not among the preliminary issues and "not suitable for determination at this stage".

Commenting on the decision, Roger Gough, Leader of Kent County Council and Sue Chandler, Cabinet Member for Integrated Children’s Services, said: “We acknowledge and accept the ruling of the judge handed down today. Indeed, since arrivals of unaccompanied asylum-seeking children (UASC) began to escalate sharply in 2015, we have emphasised to the Home Office, our partners and publicly that the National Transfer Scheme (NTS) must be operated in a mandatory and effective way before Kent can ensure compliance with its statutory duties. That scheme needs to work properly in order for Kent to be able to support all new arrivals from Dover whilst at the same time make sure that those already in Kent’s care are safe.

“Kent has long since argued that other local authorities must accept their fair share of these vulnerable children into their care within the specified timescales and the Home Office must be prepared to use its powers to force recalcitrant local authorities to participate in the Scheme. Sadly, the NTS is currently not operated in such a way to achieve this and this results in a small number of local authorities being overwhelmed and ultimately affecting a whole range of vulnerable children.

They added: “The wholly disproportionate strain on Kent’s Children’s Services without a properly functioning NTS continues to be unresolved and this was recognised by the High Court. The High Court also recognised that Kent should not be criticised for refusing to operate an unsafe service. In addition, the High Court has today made clear that it expects the Home Office to work with Kent to resolve issues relating to the NTS and expects the parties to return to Court with a resolution very soon. We are grateful to the High Court for its continued oversight of these issues.

The Leader of Brighton & Hove City Council, Bella Sankey, welcomed the judgment, noting that: "As a result of [the hotel policy], a dozen classrooms of children – including some of the most traumatised and vulnerable children in the world - have gone missing and, sickeningly for us, 50 children are still missing from the hotel used in Brighton and Hove."

She also called on the Home Secretary, Suella Braverman, to urgently enforce the NTS "so that the hotels can be emptied and all local authorities can play their part in safeguarding children".

Patricia Durr, CEO of ECPAT UK, said: "This judgement powerfully reaffirms the primacy of the Children Act 1989 and our child welfare statutory framework which does not allow for children to treated differently because of their immigration status.

"It remains a child protection scandal that so many of the most vulnerable children remain missing at risk of significant harm as a consequence of these unlawful actions by the Secretary of State and Kent County Council."

The Home Office has been approached for comment.

Adam Carey