R (on the application of Help Refugees Ltd) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Hickinbottom,Lord Justice McCombe |
| Judgment Date | 03 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2098 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2017/3221 |
| Date | 03 October 2018 |
and
[2018] EWCA Civ 2098
Lord Justice McCombe
Lady Justice King
and
Lord Justice Hickinbottom
Case No: C4/2017/3221
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
LORD JUSTICE TREACY AND MR JUSTICE OUSELEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Nathalie Lieven QC, Laura Dubinsky and Eesvan Krishnan (instructed by Leigh Day) for the Appellant
Ben Jaffey QC, David Manknell and Amelia Walker (instructed by Government Legal Department) for the Respondent
Caoilfhionn Gallagher QC, Katie O'Byrne and Jennifer Robinson (instructed by Freshfields Bruckhaus Deringer) for the Intervener
Hearing dates: 25–26 July 2018
Further written submissions: 7–13 August 2018
Introduction
This claim concerns the United Kingdom's response to the humanitarian crisis in Europe brought about by the mass migration of unaccompanied asylum-seeking children (“UAS children”) from the Middle East and North Africa, particularly as a result of the conflicts in Syria and Sudan.
It is not the first such claim. In R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 (“ Citizens UK”) and R (AM and Others) v Secretary of State for the Home Department [2018] EWCA Civ 1815, this court differently constituted (Hickinbottom, Singh and Asplin LJJ) considered the lawfulness of a process established by the Secretary of State in conjunction with the French authorities in October 2016 to assess UAS children living in the migrant camp known as the “Jungle de Calais” against criteria derived from Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (“Dublin III”), with a view to those who satisfied the criteria being immediately transferred to the UK for their asylum claim to be made and determined here. Dublin III is the legislative measure introduced to fulfil the obligation in Article 78(2)(e) of the Treaty on the Functioning of the European Union, allocating responsibility amongst Member States for examining asylum applications.
This claim concerns a different scheme. Under section 67 of the Immigration Act 2016 (“the 2016 Act”), the Secretary of State was required, as soon as possible after the passing of the Act, to make arrangements to relocate to the UK and support a “specified number” of UAS children from other countries in Europe, that number to be determined by him in consultation with local authorities. The number eventually specified was 480. References in this judgment to “section 67” are to section 67 of the 2016 Act.
The Claimant is a charity concerned with meeting the humanitarian needs of refugees and other displaced people. Supported by the Intervener (“the AIRE Centre”, “AIRE” being an acronym for “Advice on Individual Rights in Europe”), a charity with particular interest in the rights of unaccompanied children, the Claimant challenged the lawfulness of the process of statutory consultation engaged upon by the Secretary of State with local authorities prior to specifying the number for the purposes of section 67, and also the adequacy of the reasons given by the Secretary of State to children who were assessed for relocation to the UK under section 67 but found not to comply with the relevant criteria. For the sake of completeness, I should say that the Claimant brought other legal challenges, but they are no longer extant; and I need say nothing further about them.
A Divisional Court comprising Treacy LJ and Ouseley J refused the challenge on all grounds ( [2017] EWHC 2727 (Admin)). The Claimant, again supported by the AIRE Centre, appeals on the basis that the Divisional Court erred in law in concluding that the consultation and reasons were legally adequate.
Before us, Nathalie Lieven QC, Laura Dubinsky and Eesvan Krishnan appeared for the Claimant; Caoilfhionn Gallagher QC, Katie O'Byrne and Jennifer Robinson for the AIRE Centre; and Ben Jaffey QC, David Manknell and Amelia Walker for the Secretary of State. The quality of the written and oral submissions was uniformly high, and I thank all counsel and those instructing them for their contribution.
UAS Children: Routes into the UK
“Unaccompanied asylum seeking child” is defined in paragraph 352ZD of the Immigration Rules as a person who, when he or she submits an asylum application, is under 18 years of age, is applying for asylum in his or her own right, is separated from both parents, and is not being cared for by an adult who in law or by custom has responsibility to do so. The Secretary of State allows about 30% of applications for asylum by UAS children. However, (i) the percentage is much higher (about 75%) in respect of children from Syria and Sudan, (ii) some of those whose applications are refused are ultimately successful on appeal, and (iii) under paragraph 352ZC of the Immigration Rules, an unsuccessful UAS child applicant will in any event be given temporary leave for 30 months or until he is 17 1/2 years old, whichever is the shorter period, on the basis that he cannot be returned until he reaches adulthood.
Although the welfare and support of children is a devolved function in Scotland and Wales, immigration is reserved. Therefore, the UK Government is responsible for UK entry criteria for UAS children; but the welfare and support of such children in Scotland and Wales are matters for their own national governments acting through their own local authorities. The welfare and support of UAS children in England is of course still a matter for the UK Government.
Section 67 is just one route by which UAS children might lawfully come into the UK. There are several other schemes under which they might lawfully come.
i) Under article 8(1) of Dublin III, where an applicant for asylum in a Member State is a UAS child, the Member State responsible for determining the application is “that where a family member or a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor…”; and article 8(2) requires the child to be united with that relative under transfer provisions set out in Chapter VI of the Regulation. Consequently, if a UAS child in (e.g.) France applies for asylum there, but has a close relative in the UK, then Dublin III requires the Secretary of State to accept the physical transfer of the child here on a request from the French Government and to be responsible for the child's asylum application. In addition, article 17 of Dublin III provides for other circumstances in which the Secretary of State may, but is not obliged, to accept a transfer. Once transferred, most Dublin III children will not still be unaccompanied – they will live with their identified close relative – but some transfers break down, resulting in the state becoming responsible for the support of the child.
ii) The Vulnerable Persons Resettlement Scheme (“the VPRS”) is a programme under which the UK is committed by 2020 to resettle up to 20,000 migrants fleeing the Syrian conflict who are currently in refugee camps in countries surrounding Syria.
iii) The Vulnerable Children Resettlement Scheme is a programme under which the UK, working with the United Nations High Commissioner for Refugees (“the UNCHR”), has agreed, in addition to the VPRS commitment, to resettle 3,000 migrants from the Middle East and North Africa region (hence it is referred to as “the MENA Scheme”).
iv) The Secretary of State accepts migrants who have been granted refugee status by the UNCHR (“mandate refugees”), or who have been referred to him by the UNCHR under a scheme called the Gateway Protection Programme. The former has no limit on numbers. The latter allows for the resettlement of up to 750 migrants per year.
Article 8 of Dublin III is concerned with only UAS children. In each case (ii) to (iv), the scheme is not solely aimed at – but those in fact relocated here may include – UAS children.
In addition to UAS children who arrive in the UK legally, many arrive spontaneously. Some arrive at airports; but most arrive by sea. From 2015, there was a significant sudden increase in the number of UAS children arriving in Kent from Northern France. Because the Children Act 1989 (and the equivalents of the devolved administrations) imposes upon a local authority a duty to safeguard and support any child in its area who is in need and who has no person with parental responsibility for them, that placed an enormous burden on Kent County Council. By the end of 2015, it had 1,000 UAS children in its care – 40% of all the children whom it was required to look after.
Kent County Council sought assistance from other local authorities under section 27 of the Children Act 1989, under which an authority must comply with a request for assistance from another authority if it is compatible with its own duties and obligations and does not unduly prejudice the discharge of any of its own functions; and a voluntary protocol was put in place to support the transfer of children from Kent to other local authority areas which included additional funding from central government. Over about a year in 2015–16, 100 children were transferred by these means; but this was insufficient to address the problem of increasing numbers of UAS children in Kent, and it was considered that a more formal national scheme was required to ensure an equitable distribution of UAS children between local authority areas.
In 2016, the National Transfer Scheme (“the NTS”) was established to ensure more equitable distribution of UAS children. Ministers wished the new scheme to be voluntary, but, as entirely voluntary arrangements had not...
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