The King on the application of CYK v Kent County Council

Hearing dates: 27 and 28 January 2026

This Judgment was handed down electronically at 10am on Wednesday 31 March 2026 in accordance with the Practice Guidance dated 16 December 2021.

Jonathan Moffett KC, sitting as a Deputy High Court Judge:

A. INTRODUCTION

Each of these claims for judicial review raises the issue whether my decision in R (AAM) v Bromley London Borough Council [2025] EWHC 1565 (Admin), [2025] 1 WLR 5528 is correct.

Underlying that issue is the precise nature of the interrelationship between one element of a local authority's functions under the leaving care provisions of the Children Act 1989 (“the 1989 Act”) and the functions of the Interested Party in each case, the Secretary of State for the Home Department (“the Secretary of State”), under the asylum support provisions of the Immigration and Asylum Act 1999 (“the 1999 Act”).

Under s 24A (5) of the 1989 Act, a local authority has, in exceptional circumstances, a power to provide accommodation and financial assistance to a person qualifying for advice and assistance (“a qualifying young person”). In AAM, I held that, in the case of a qualifying young person who is an asylum-seeker (“an asylum-seeking qualifying young person”), when a local authority is deciding whether there are exceptional circumstances for the purposes of s 24A(5), it is not entitled to take into account the fact that the young person is being provided with, or might be provided with, asylum support by the Secretary of State under s 95 of the 1999 Act.

In each of these claims, the Claimant argues that the Defendant, Kent County Council (“the Council”), failed to act in accordance with AAM, that that case was correctly decided, and that I should follow it. In each claim, the Council argues that AAM was incorrectly decided, and that I should not follow it.

In consequence, the parties agree that the main question which arises for determination in each case may be articulated as follows: when a local authority is determining whether to provide an asylum-seeking qualifying young person with accommodation or financial assistance pursuant to s 24A(5), is the local authority entitled to take into account the fact that the young person is or could be provided with asylum support pursuant to s 95?

As the parties recognise, I do not start with a blank canvas when considering that question, as it is in essence the same question which I determined in AAM. I am not bound by my decision in AAM, but the parties agree that I should follow it unless there is a powerful reason not to do so (see Willers v Joyce (No 2) [2016] UKSC 44, [2018] AC 843, para 9 per Lord Neuberger). Indeed, there is authority to the effect that I should follow AAM unless I am convinced that it is wrong (see R v Greater Manchester Coroner, ex p Tal [1985] QB 67, 81A-B per Robert Goff LJ for the Divisional Court). Accordingly, the starting point for my consideration of the question set out above must be my reasoning in AAM.

The claims were heard together. At the hearing, CYK was represented by Nicola Braganza KC and Emma Fitzsimons, DS was represented by Zoë Leventhal KC and Ayesha Christie, and in each case the Council was represented by Martin Westgate KC. On the Claimants' side, Ms Leventhal shouldered the main burden of the oral submissions, with Ms Braganza adopting Ms Leventhal's submissions and supplementing them with an additional supporting argument.

I am grateful to all counsel, and their supporting teams, for the high quality of the submissions. It is fair to say that the arguments on all sides were much more developed and referred to a wider range of statutory provisions and authorities, than the arguments which I heard in AAM. In particular, I have been referred to two authorities which were not cited to me in AAM, and which have proved to be significant. As a result, and as I explain below, I have concluded that, although the broad shape of my analysis in AAM is sound, it requires modification in two important respects.

The Secretary of State was named as an interested party in each claim. In each claim, she filed an acknowledgment of service stating that she adopted a neutral position on the claim and that she did not intend to participate in the proceedings. Accordingly, the Secretary of State was not represented at the hearing, and I have received no submissions from her.

There are three legislative provisions which are at the heart of these cases: s 95 of the 1999 Act, s 24A of the 1989 Act, and reg 6 of the Asylum Support Regulations 2000 (SI 2000 No 704) (“the 2000 Regulations”)). For convenience, I shall refer to those provisions simply as “s 95”, “s 24A”, and “reg 6”, respectively. Similarly, and also for convenience, I shall refer to s 4 of the 1999 Act simply as “s 4”, and to s 17 of the 1989 Act simply as “s 17”.

The Secretary of State's functions in relation to the provision of asylum support under the 1999 Act were formerly exercised by a division of the Home Office known as the National Asylum Support Service, or NASS; hence accommodation and support which is provided under the 1999 Act has often been referred to as “NASS accommodation” and “NASS support”. I used these expressions in AAM but, because NASS no longer exists as a discrete division of the Home Office, the parties in the present cases preferred not to use this terminology. Accordingly, I shall refer to accommodation provided under s 95 as “asylum accommodation”, and I shall refer to support (including accommodation) provided under s 95 as “asylum support”.

In view of the length of this judgment, it may be of assistance to the reader to set out at the outset an index of the topics which I cover. They are as follows.

A. Introduction (paragraphs 1–12)

B. Procedural matters (paragraphs 13–26)

C. The factual background (paragraphs 27–65)

D. The legislative and policy framework (paragraphs 66–109)

E. The decision in AAM (paragraphs 110–120)

F. The parties' arguments (paragraphs 121–141)

G. The issues (paragraphs 142–148)

H. Issue 1: does the potential for deadlock arise at all? (paragraphs 149–153)

I. Issue 2: the correct approach to identifying relevant considerations (paragraphs 154–159) J. Issue 3: is s 95 a “residual” function in the context of s 24A? (paragraphs 160–207) K. Issue 4: how should the potential deadlock otherwise be broken (paragraphs 208–230) L. Summary and consequential matters (paragraphs 231–239)

B. PROCEDURAL MATTERS

(1) Anonymity

In CYK's case, permission to apply for judicial review was granted by an order of UTJ Church, sitting as a Deputy High Court Judge, dated 25 September 2025. UTJ Church granted a withholding order, a restricted reporting order under s 11 of the Contempt of Court Act 1981, and an order restricting access to documents on the Court's file under CPR 5.4C(4). He did so on the basis that CYK is a vulnerable care leaver who has an outstanding application for asylum.

In DS's case, permission to apply for judicial review was granted on one ground only by an order of Foxton J dated 5 November 2025. Foxton J ordered that the claim should be expedited, and that it should be listed together with CYK's claim. At an earlier stage, by an order dated 17 October 2025, Lieven J had granted a withholding order, a restricted reporting order, and an order restricting access to documents on the Court's file. She did so on the basis that DS is an asylum-seeker, and there was evidence of protests taking place in the vicinity of his asylum accommodation.

At the outset of the hearing, I canvassed with the parties whether the anonymity orders granted by UTJ Church and Lieven J should be maintained. Ms Braganza and Ms Leventhal argued that they should be maintained; Mr Westgate had no objection. I established that no members of the press were in attendance at the hearing.

Anonymity orders of the kind made in these cases constitute a departure from the important constitutional principle of open justice to which significant weight must be attached. Nevertheless, I was persuaded that a derogation from that principle was justified in each case. At the time of the hearing, CYK was an asylum-seeker, and his case involves information about his mental health and an allegation that he has been sexually assaulted, matters which would otherwise be private. DS is an asylum-seeker who says that he has been the victim of torture, and whose case involves information about his mental health, information which would again otherwise be private. In those circumstances I considered that the derogation from the principle of open justice was justified, and that UTJ Church's order and Lieven J's order should remain in force, a decision which I announced at the hearing. I remain of that view.

Accordingly, any report of these proceedings or this judgment must not directly or indirectly identify either Claimant.

(2) Application to amend in DS's case

On 23 December 2025, DS applied to amend his claim form and statement of facts and grounds. In broad terms, the amendments delete DS's second...