Kent claims High Court backing for criticism of Home Office decision-making for National Transfer Scheme
Kent County Council has said the High Court has agreed with its criticisms of the degree of urgency shown by the Home Secretary’s decision-making process for the National Transfer Scheme (NTS).
Although Kent failed on most grounds argued, it said the court found that the NTS and its management were “inadequate and for large periods was unlawful” and that the Home Office must resolve this and ensure that it works fairly and sustainably.
The NTS was implemented in 2016 after small boat crossings by immigrants landing in Kent increased dramatically.
It was designed to enable unaccompanied asylum-seeking children to be cared for by local authorities throughout the country once Kent has reached its capacity, which was set at 346, equivalent to 0.1% of its under 18 population.
Mr Justice Chamberlain said the Home Office approach to the NTS’s management was both “unreasonably slow” and “unlawful”.
Kent said it had made public pleas to the Home Office about the county’s lack of capacity to safely continue to take new arrivals, since the children were not being moved swiftly to other local authorities.
But it said the Home Office “consistently failed to consider this and plan ahead”, which led to Kent's children's services becoming overwhelmed and “with this unreasonable burden [was] left with no choice but to announce that it could no longer safely take new referrals and meet its statutory duties”.
Kent said the judgment found that instead of developing a plan to make the scheme work as intended, the Home Office made only “minor modifications, at intervals of months or years”.
No proper plan was formulated and so the Home Secretary's decision-making was found “unlawful in the period December 2021 to 27 July 2023”, the council said.
Chamberlain J said the Home Office must make realistic estimates of arrivals, have a more robust system for dealing with uncooperative local authorities outside Kent and ensure transfers take place in a way that prevents Kent’s children’s services becoming overwhelmed again.
Council leader Roger Gough said: “We are extremely pleased with the judgment handed down today proving that the long-standing issues we have had with the NTS remain unresolved and KCC was right to bring this judicial review.
“For many years, Kent has been shouldering the responsibility of the nation in the care of [unaccompanied asylum seeker] children and the judge recognised, as we have always said, that this is not a Kent problem but a national one, urgently in need of resolution by central government fairly and equitably across the nation.”
Cllr Gough said he hoped for “prompt agreement from the Home Office for the funding Kent has confirmed is required to urgently provide sufficient temporary accommodation for all expected new [unaccompanied] children arrivals moving forward.”
Kent did though fail on the four other grounds it argued. Chamberlain J said in Kent County Council, R. (On the Application Of) v Secretary of State for the Home Department [2023] EWHC 3030 (Admin): “All the evidence indicates that the Home Secretary's decisions in relation to the NTS were aimed at reducing the burden on Kent CC and distributing that burden equitably among other local authorities.
“The real complaint is that the Home Secretary failed properly to grasp the scale of the problem or the extent of her own responsibility for it, and, accordingly, that what was done was not enough. Even if that criticism is correct, it does not give rise to a breach of the Padfield principle.”
The judge explained this was a principle that a statutory power must be exercised to promote, and not to frustrate, the policy and objects of the statute which conferred them.
He said Kent’s complaint was that the Home Secretary's actions were ineffective, “not that they amounted to a deliberate decision to avoid taking action to alleviate the burden on Kent CC”.
The judge also dismissed a ground about whether the NTS Protocol was a 'public law instrument’, as opposed to a policy or guidance document.
“In this respect, the real complaint is that the Home Secretary has failed to enforce compliance, not that anything was done which in principle undermines or frustrates the obligation to comply,” the judge said.
The obligation to ensure immigration functions are discharged "having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom” was not breached “simply because (in the view of the court) the relevant functions could have been exercised in a way which better safeguards and promotes the welfare of children”.
He said Kent had not shown the Home Secretary's powers had been exercised to frustrate the discharge of its functions under s20 Children’s Act 1989.
Chamberlain J had in September ordered the Home Office to take all possible steps to transfer unaccompanied asylum-seeking children already housed in Kent hotels to the care of a local authority by 22 September.
He had then added: “If a child is placed in a hotel after the date of this order, the Secretary of State for the Home Department must take all possible steps to transfer each of them to the care of a local authority within five working days, of the day on which they are so placed.”
A Home Office spokesperson said: “The safety and welfare of unaccompanied asylum-seeking children and the provision of care placements for them is a national issue that requires participation from local authorities across the UK.
“We are carefully considering the judgment today and will continue to work with local authorities across the UK to support them to fulfil their statutory duties to accommodate unaccompanied children nationwide.”
The Home Office argued the high number of unaccompanied asylum-seeking children had placed unprecedented pressure on the NTS, which had seen 6,574 children transferred to local authorities with children’s services between 1 July 2021 and 30 September 2023, which it said was more than five times the number of transfers in the same time frame in previous years.
Mark Smulian
