Judges reject council challenge over requirement to participate in national dispersal scheme for asylum seeker children

A Divisional Court has dismissed Medway Council's judicial review challenge of a Home Office decision to mandate the local authority's participation in a national statutory scheme aimed at equitably distributing unaccompanied asylum-seeking children (UAS children) across council areas.

In Medway Council, R (On the Application Of) v Secretary of State for the Home Department [2023] EWHC 377 (Admin), Lord Justice Bean and Mrs Justice Collins Rice rejected the claim, which included an argument that Government ministers and officials had applied an "onerous test" when considering Medway's request to be exempted.

The National Transfer Scheme (NTS) was first introduced by the Home Office in 2016 after it became apparent that councils in the South East were struggling to accommodate the concentration of UAS children.

The Home Office later started work on strengthening the policy by making the policy a mandatory scheme using powers set out in section 72(3) of the Immigration Act 2016 Act, in order to solve the problem.

In November 2021, a joint letter from Home Office and Department for Education Ministers was issued to all local authorities giving formal notice under section 72(5) of the 2016 Act that the Secretary of State proposed to direct them to comply with the NTS.

It explained the "unprecedented situation" of accommodating UAS children in hotels and the need to resolve it as soon as possible by ensuring all children were transferred promptly to local authority care for the discharge of Children Act responsibilities.

As part of the letter, the government departments highlighted the 'undue prejudice' provision of section 72(4), which entitles local authorities to make written representations.

In response to the letter, Medway's leader, Cllr Alan Jarrett, wrote to ask that the council be exempted from the mandatory NTS.

His plea explained that its 'in-area' accommodation provision for looked-after children was at capacity, forcing them to rely on accommodation in other local authorities. In addition, he noted that Medway's in-house fostering services had no vacancies, and its commissioned fostering agencies had few, if any, places within the area.

Cllr Jarrett's letter concluded: "Our ability to manage our 'indigenous' children's safeguarding is adversely impacted and to mandate for Medway Council to accept UASC children in our own right would be detrimental to Medway Council's ability to provide a good level of service to all our children, young people and families, including those UASC already placed in Medway."

A moderation panel comprised of officials from the Home Office, Department for Education, and Department for Levelling Up, Housing and Communities considered Medway's request but concluded that it should continue to issue the council with a direction.

The council consequently issued judicial review proceedings, advancing the following three grounds:

1. The Home Office had not applied the statutory test in the 2016 Act in considering the council's representations but had applied "a far more onerous test".
2. The Home Office's policy excluded many relevant factors which should clearly be taken into account in deciding whether or not compliance with the Scheme would unduly prejudice the discharge of other functions.
3. On the basis of the application of these unlawful criteria, the council's representations had not been considered and relevant factors not taken into account.

On the first ground, Stephen Cragg KC, who acted for the council, argued that under s72(4) of the 2016 Act, "the burden is on the Defendant to be satisfied that the direction under s72(3) of the 2016 Act 'will not unduly prejudice the discharge by each receiving authority of any of its functions'".

"The onus is not on the Claimant to establish that undue prejudice will be caused," he added.

He continued: "Rather than considering whether the Defendant is satisfied that there will not be undue prejudice the language of the documents reveals that the Defendant has, in fact, put the onus on the Claimant and other local authorities to establish much more. Thus, a local authority must show that it is in 'a true crisis at the time they are directed to receive transfers' and that 'compelling reasons' need to be provided."

He continued: "Such a high test is set, it seems, because otherwise to exempt a local authority 'would be liable to undermine the operation of the NTS', although there is nothing in the statutory language which suggests that this issue is part of the test to be applied, in the case of any individual authority.

"The test applied by the Defendant is not the test set out in the statute and the resulting decision that the Applicant comply with the direction is unlawful."

But, the judges concluded that it was "neither irrational or otherwise unlawful" for officials to devise and for Ministers to approve a policy that the burden of providing the services to UAS children imposed on overburdened authorities should be widely shared.

They added that: "Although usually (if not inevitably) this will cause a degree of prejudice to the discharge by recipient local authorities of their other functions, it should only be in circumstances of crisis amounting to a complete breakdown that a local authority should be exempt from participation in the Scheme altogether on the grounds of undue prejudice to the discharge of its functions, so that the question of numbers does not even arise."

The judges then considered Mr Cragg's argument on the second ground (fettering of discretion). He emphasised documents used in the decision, which recommended that representations citing specific types of argument which had been put forward in the past by authorities as to why UAS children should not be sent to their area at all should not be regarded by ministers as making a case for exemption from the Scheme.

However, Lord Justice Bean and Mrs Justice Collins Rice dismissed the argument noting that: "We have already held, in rejecting Ground 1, that the Home Office was entitled to interpret 'undue' prejudice as requiring circumstances amounting to a crisis such as a complete breakdown of children's services.

"Having evolved that policy, the decision-makers were not unlawfully fettering their discretion in giving effect to it."

Ground three was also rejected as the judges concluded that the council leader's letter was indeed considered by the Panel, but the view "was properly taken" that they did not demonstrate undue prejudice so as to justify exemption from participation in the Scheme.

The two judges accordingly dismissed the claim.

Adam Carey