High Court to hear three linked judicial review claims this week over accommodation of unaccompanied asylum-seeking children in hotels, as county issues section 5 report

The High Court will this week hear three separate judicial review claims involving Kent County Council, Brighton & Hove City Council, children's safeguarding charity ECPAT, and the Home Office in relation to the care of unaccompanied asylum-seeking children (UASC) and their accommodation in hotels by the Secretary of State for the Home Department.

The hearing comes after Kent’s General Counsel and Monitoring Officer last week issued a third report under section 5 of the Local Government and Housing Act 1989 relating to a breach of statutory duties by the local authority.

Mr Justice Linden ordered that the three separate judicial review claims be linked and considered on 21-22 July 2023.

ECPAT's claim, which is being brought against Kent and the Home Secretary, challenges the lawfulness of the Secretary of State’s policy of accommodating UASC in hotels and Kent's alleged failure to take UASC into its care and provide services required by the Children's Act 1989.

The charity claims Kent has an agreement with the Home Office that relieves the county council of its mandatory responsibilities to UASC.

The second claim is being brought by Brighton & Hove and challenges the Home Secretary's decision to stand up a hotel in Hove for the accommodation of UASC. Kent is named as an interested party in the claim.

Lastly, Kent is bringing its own claim against the Home Secretary, which challenges her alleged failure to operate an effective National Transfer Scheme (NTS) and non-compliance by the Home Secretary with the terms of the current NTS.

Kent's claim also challenges the decision by the Home Secretary to accommodate UASC in hotels in areas, such as Kent, where the applicable local authority is already caring for numbers of UASC above its 0.1% quota.

Linden J selected ECPAT’s claim as the lead claim, granting permission on all grounds. Some legal issues raised by the claims of Brighton and Kent were stayed subject to further order.

In a statement detailing its claim, ECPAT alleged: "It has recently come to light that there is an agreement between Kent County Council, the Department for Education and the Home Office which sanctions the abdication of responsibility by Kent County Council to perform their mandatory duties to unaccompanied children. This agreement has been in place since September 2021, completely devoid of public knowledge or scrutiny."

The charity said it was concerned that UASC were being directly accommodated by the Home Office outside of local authority care and denied statutory care and protection.

The council denies that there is such an agreement between Kent, the Department for Education and the Home Office in the terms described by ECPAT.

Kent has taken in large numbers of UASC as a result of its geographic location and has been calling for changes to the NTS, which is the mechanism by which UASC are distributed between local authorities, for more than two years.

In the latest section 5 report, Kent’s General Counsel and Monitoring Officer, Ben Watts, last week (13 July) noted 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".

He added: “In simple terms, they say that the council cannot safely and adequately look after all the children arriving in Kent in periods where the number and rate of arrivals is greater than the capacity that the council can provide in its children’s services.”

Watts said: "The council has always been clear through the executive and the [Director of Children's Services] that returning to a position of compliance with all of our statutory duties remains a priority and when the number and rate of arrivals allow this, it is achieved.

“Any non-compliance must be viewed as regrettable, hence the previous and current reports. However, our evidence is that the statutory NTS needs to work effectively, efficiently and on a timely basis if KCC is to be able to meet those duties in relation to every arriving child without services being overwhelmed and becoming unsafe."

In the section 5 report he added: “Through the evidence of the DCS in the court proceedings mentioned above, the council will seek to explain the reality of operations at the border and the steps taken to seek to safeguard these vulnerable young people, which remains her focus.

“The Immigration Act 2016 (which brought about the mechanism for Government to mandate the transfer of children arriving at the border to other Page 4 authorities) was introduced, in part, to ameliorate some of the challenges faced in 2015 and for KCC’s part to respond to the challenges faced by Kent in relation to providing statutory services under the Children Act.”

ECPAT's legal challenge follows on from an open letter it signed along with more than 100 other charities in January expressing "grave concern" about UASC going missing from Home Office hotels. In March 2023, Immigration Minister Robert Jenrick revealed there had been 440 missing episodes, with 200 children remaining missing at that time.

Brighton & Hove's claim concerns a hotel in Hove that saw large numbers of UASC go missing in 2022. The council initially applied for an injunction blocking the use of the hotel by the Home Office, but this was rejected by Mr Justice Johnson late last month (30 June).

A Home Office spokesperson said: "The wellbeing of unaccompanied asylum-seeking children in our care is an absolute priority. Robust safeguarding and welfare measures are in place to ensure children are safe and supported.

"The National Transfer Scheme allows us to work closely with local authorities, so that necessary support can be provided to both councils and children. All local authorities in the UK with children's services are now mandated to participate in the Scheme to relieve pressures."

Adam Carey