R Help Refugees Ltd v The Secretary of State for the Home Department The Aire Centre (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy |
| Judgment Date | 02 November 2017 |
| Neutral Citation | [2017] EWHC 2727 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5312/2016 |
| Date | 02 November 2017 |
[2017] EWHC 2727 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Treacy
Mr Justice Ouseley
Case No: CO/5312/2016
and
Ms Laura Dubinsky, Mr Edward CravenandMs Rowena Moffatt (instructed by Leigh Day) for the Claimant
Mr David Manknell and Ms Amelia Walker (instructed by GLD) for the Defendant
Ms Caoilfhionn Gallagher QC, Ms Katie O'ByrneandMs Jennifer Robinson (instructed by Freshfields Bruckhaus Deringer) for the Intervener
Hearing dates: 20, 21 & 22 June 2017
This is the judgment of the court to which we have both contributed in equal measure.
Introduction
This is a claim for judicial review brought by Help Refugees Limited, a charity concerned with meeting the humanitarian needs of refugees and other displaced people. Its claim has been supported by the intervener, the Aire Centre, a charity with particular interest in human rights law and the rights of separated and unaccompanied children.
The case is concerned with issues arising from the passing of s.67 of the Immigration Act 2016 (the Act), a provision designed to address the impact of the refugee crisis in Europe upon unaccompanied asylum-seeking children (UASC), and in particular to make arrangements for the relocation of such children from other European States to the United Kingdom.
Section 67 of the Act provides as follows:
"Unaccompanied Refugee Children: Relocation and Support
(1) The Secretary of State must, as soon as possible after the passing of this Act, make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.
(2) The number of children to be resettled under subsection (1) shall be determined by the Government in consultation with local authorities.
(3) The relocation of children under subsection (1) shall be in addition to the resettlement of children under the Vulnerable Person's Relocation Scheme."
Although s.67(1) uses the term "refugee children", it was common ground that the children would be relocated before undergoing refugee status determinations.
Section 67 represents a further route by which UASC come to the UK. There are a number of other schemes and the s.67 scheme operates in addition and without prejudice to those other schemes or other routes of entry. Those other schemes are:
(i) The Syrian Vulnerable Persons Resettlement Scheme (VPRS), which is a scheme to resettle up to 20,000 refugees fleeing the Syrian conflict by 2020. This is not solely concerned with unaccompanied children. It is referred to in s.67(3);
(ii) The Vulnerable Children Resettlement Scheme (VCRS), also known as the MENA scheme, which proposes to resettle up to 3,000 vulnerable children and their families from the Middle East and North Africa by 2020. This scheme includes unaccompanied children where it would be in their best interests;
(iii) The Mandate Resettlement Scheme which resettles individuals, assessed to be refugees by UNHCR, with their families who have refugee status in UK. This may apply to UASC.
In addition, by reason of Article 8 of the Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013 (the Dublin III Regulation), an unlimited number of UASC elsewhere in Europe who have qualifying family in UK have the right to be transferred to the UK so that they can have their claim for asylum assessed there. If, after arrival, their family relationship breaks down, they may fall under the care of the local authority in whose area they are present.
There will also be UASC who arrive spontaneously in the UK. The local authority at their place of arrival will have responsibility for them. The 2016 Act created a mechanism, the National Transfer Scheme (NTS), whereby local authorities could more easily transfer responsibility for UASC from one local authority to another, thus sharing more evenly the resource burden which caring for such children creates. Local authorities are required under the Children Act 1989 to support all children in need requiring support in their area and to accommodate children without accommodation in their area. The NTS operates a 0.07% threshold whereby no local authority is expected to care for more than 0.07% UASC expressed as a percentage of its total child population.
The NTS scheme is intended to operate voluntarily between local authorities, although there are powers for Ministers to intervene over transfers. This scheme only operates in England (see s.69), and does not apply to local authorities in Scotland, Wales or Northern Ireland since s.73 is not yet in force.
Section 67 applies to the UK as a whole; see s.95. It came into force on 31 May 2016.
The upsurge in numbers of UASC entering Europe was a matter of concern in the UK by 2015, and had been the subject of some consideration both at Government and local authority level since local authorities at points of entry into this country were receiving and having to care for large numbers of UASC. There are about 700 cases in the UK of UASC above the 0.07% local authority threshold.
Section 67 represented a government response to an amendment to the 2016 Act proposed by Lord Dubs. In May 2016, the then Prime Minister announced that the Government would accept Lord Dubs' amendment, so that the UK would resettle UASC from within Europe, specifically from Greece, Italy and France, who had been registered in Europe before 20 March 2016, and where it was in their best interests to be resettled in this country. The date of 20 March 2016 was fixed with the aim of deterring children from undertaking dangerous journeys to Europe attracted by the news of the s.67 route of entry after that date. This has been referred to as the "pull factor", a matter about which authorities in this country and in Europe were concerned. The date itself seems to have been selected by reference to the entry into force of the EU/Turkey Statement of 18 March 2016.
Reference to s.67 shows that the Secretary of State was required to identify a "specified number" of UASC already in Europe for resettlement in the UK. Section 67(2) required that number to be determined by the Government "in consultation with local authorities". A very large part of the dispute in this case relates to the issue of consultation: a) whether there was a consultation; b) whether it was fair; c) whether the defendant properly considered local authority responses; d) whether the defendant arrived at a determination of the specified number in a lawful manner; and e) whether the defendant carried out her responsibilities under s.67 "as soon as possible" as set out in s.67(1).
In addition to those matters which focus on the way in which consultation with local authorities was carried out and then dealt with, the claimant has also pursued an issue asserting that the process by which UASC in France were assessed and refused relocation to the UK under policy guidance, lacked the minimum procedural safeguards necessary for a lawful exercise of those decision-making powers.
Royal Assent to the Act was given on 12 May 2016. On the following day the Immigration Minister wrote to local authorities referring to s.67 and stating that, before specifying the number of children the Government would seek to resettle from within Europe, it would consult with local authorities "taking account of the wider picture of support for unaccompanied asylum-seeking children, asylum-seekers, refugees and resettled persons in each area". The letter indicated that there would be a further communication with more details shortly. An identical letter went to the Northern Ireland Executive, a week later.
Instead of writing a further letter, a national event was held on 7 June 2016 at which the Minister stated:
"Today formally starts the sign up and consultation process for not only the UASC Transfer Scheme, but also the Children at Risk Scheme and the support we will provide to unaccompanied refugee children who are currently in Europe…"
An accompanying briefing note referred to follow-up events in each region, after which local authorities would be asked to consider how many unaccompanied refugee children in Europe could be cared for in their area.
In June and July 2016 10 regional events took place in England, Scotland and Wales. No such event was held in Northern Ireland. Officials were also in contact with local authorities or their representative bodies (Strategic Migration Partnerships (SMPs)) on a regular basis. There were indications from a number of regions that it would take until September 2016 for areas to consider and secure agreement to participate.
On 8 September 2016 the Immigration Minister wrote to all local authorities in England, Scotland and Wales. He asked each council via their SMP to respond to three formal requests set out in the letter. Firstly, local authorities who had not already done so were asked to register for the NTS (which had launched at the beginning of July 2016), so that the Government could use the NTS to ensure a fair distribution of unaccompanied children between local authorities. Secondly, there was a request to confirm the total number of unaccompanied children that could be placed with a local authority for the remainder of the financial year, 2016/17, "noting the 0.07% threshold operating under the NTS". That threshold is not a target, nor is it an estimate of capacity. It is used as an indication that a local authority has reached the point at which they would not be expected to receive any more UASC. It is at that point that the NTS transfer mechanism can take effect.
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