The King on the application of Kent County Council v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 28 November 2023 |
| Neutral Citation | [2023] EWHC 3030 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-002048; CO/2459/2023 |
and
[2023] EWHC 3030 (Admin)
Mr Justice Chamberlain
Case No: AC-2023-LON-002048; CO/2459/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey KC, Sarah Hannett KC and Azeem Suterwalla (instructed by Bevan Brittan LLP) for Kent County Council
Stephanie Harrison KC and Ollie Persey (instructed by Bhatt Murphy Solicitors) for Brighton and Hove City Council and East Sussex County Council
Deok Joo Rhee KC, Jack Anderson and Anna Dannreuther (instructed by Government Legal Department) for the Secretary of State for the Home Department and the Secretary of State for Education
Hearing date: 10th October 2023
Approved Judgment
This judgment was handed down remotely at 11.30am on 28 th November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is my third substantive judgment concerning unaccompanied asylum-seeking children (“UAS children”) entering the United Kingdom in Kent on small boats. There are three separate claims for judicial review. Their targets include a protocol agreed in September 2021 between Kent County Council (“Kent CC”) and the Home Secretary setting out how Kent CC was to deal with UAS children (“the Kent Protocol”), a protocol setting out the procedure for the transfer of responsibility for UAS children from one local authority to another under the National Transfer Scheme (“the NTS Protocol”) and a series of decisions made by the Home Secretary in relation to the design and operation of the NTS.
On 27 July 2023, after a hearing on 20 and 21 July 2023, I handed down a judgment on a series of preliminary issues arising in these claims: [2023] EWHC 1953 (Admin). I concluded that Kent CC was acting unlawfully, in breach of its duties under the Children Act 1989 (“CA 1989”), by failing to accommodate and look after all UAS children when notified of their arrival by the Home Office and by ceasing to accept responsibility for some newly arriving UAS children, while continuing to accept other children into its care. I also concluded that the Home Secretary was acting unlawfully by agreeing the Kent Protocol, which capped the numbers of UAS children for whom Kent CC would accept responsibility; by arranging transfers (purportedly under s. 69–73 of the Immigration Act 2016 (“IA 2016”)) other than in accordance with arrangements made between local authorities; and (from December 2021 at the latest) by systematically and routinely accommodating UAS children in hotels, outside the care system.
Having heard submissions from the parties about relief, I made an order quashing the Kent Protocol in its entirety and the NTS Protocol insofar as it permitted the Home Secretary to make arrangements for the transfer of responsibility for UAS children without the participation of the entry authority. However, I suspended the effect of both these orders under s. 29A(1)(a) of the Senior Courts Act 1981 (“SCA 1981”) for three weeks, until 18 August 2023, and set a further hearing for 17 August 2023 to consider whether to grant any further relief.
In a second judgment handed down on 1 September 2023, I explained why I had granted that relief and why, at the hearing on 17 August 2023, I extended for a short time the suspension of the order quashing in part the NTS Protocol, granted mandatory orders against Kent CC and the Home Secretary and set a further hearing to consider whether to grant additional relief: [2023] EWHC 2199 (Admin).
The second relief hearing took place on 15 September 2023. I granted a mandatory order requiring the Home Secretary to take all possible steps to transfer UAS children in hotels at that date into the care of a local authority by 22 September 2023 and, in respect of children placed in a hotel after that date, all possible steps to transfer each such child into the care of a local authority within 5 working days.
As I have explained, the first stage of this litigation, which led to the first judgment, involved the resolution of certain preliminary issues of law arising in all three judicial review claims. As a result of a series of procedural directions, for the most part agreed, the next stage concerned a series of issues arising in Kent CC's claim for judicial review, in particular Kent CC's allegations that the Home Secretary has acted and is acting unlawfully in the design and operation of the NTS. Those issues were argued at a hearing on 10 October 2023. This judgment relates to those issues. It was agreed that there would be a further hearing to consider relief between two and four weeks after this judgment was handed down. That hearing has been fixed for 15 December 2023.
The evidential position at the time of the hearing on 10 October 2023
On 10 October 2023, I was told that there were 19 UAS children currently being accommodated in hotels, all within Kent CC's area; and the UAS children in Kent CC's care were all in single occupancy rooms. I was also given some more detailed data about the numbers of UAS children arriving and the average delays before transfer. There was a dispute about how this data was presented and, accordingly, about the extent to which the position had improved. I do not consider it necessary to resolve that dispute. Whether Kent CC or the Home Secretary is correct, the position as at 10 October 2023 represented a considerable improvement on the position at the previous hearing, which itself was considerably better than the position at the time of my first judgment. It was not possible to predict whether the position would improve further or deteriorate. All parties agreed that this would depend in part upon the weather, which would dictate how many boats would be able to cross the Channel, as well as on efforts by Kent CC to increase capacity and by the Home Secretary to increase the speed of transfers.
The evidence and submissions
Kent CC
Hugh Southey KC for Kent CC drew attention to the evolution of the NTS Protocol. In version 1, which applied from 1 July 2016, its stated aim was to ensure a fair distribution of UAS children across all local authorities and regions in the UK and to ensure that appropriate services were available to them. Local authorities where UAS children accounted for 0.07% or more of the total child population were able to arrange transfers to local authorities within the same region on a voluntary basis.
Version 2 applied from 15 March 2018 and allowed children to be transferred to another region (including the devolved nations) where UAS children made up less than 0.07% of the total child population where “good reason” was shown. Kent CC was treated as a region on its own.
The numbers of UAS children arriving in Kent rose steeply over the course of 2019. Between 1 January and 31 May 2020, Kent CC was unable to transfer responsibility for any UAS children, despite multiple requests. In the period from January to August 2020, 448 UAS children arrived in Kent, but only 69 were transferred out. As noted in my first judgment, Kent CC ceased accepting newly arriving UAS children into its care in August 2020.
In the autumn of 2020, the Home Secretary and Education Secretary undertook a consultation on proposed changes to the NTS. There was a delay in publishing the Government's response. Kent CC sent a pre-action letter threatening judicial review of the Government's failure to mandate compliance with the NTS on 3 June 2021. In the same month, the Government announced changes to the NTS, including a national rota to determine which authority would be the “receiving authority” and a new weighting system to take account of pressure on local services. At this stage, however, the NTS remained voluntary.
On 14 June 2021, Kent CC again announced that it would no longer accept newly arriving UAS children into its care and the Home Office began to commission hotels to accommodate them. In October 2021, the Home Secretary and Education Secretary approved a mandatory scheme. Local authorities would be directed to comply with it. It was anticipated that this would eliminate the need to use hotels to accommodate UAS children. (The directions were made in December 2021 and February 2022.)
Meanwhile, version 3 of the NTS was published on 14 December 2021. It introduced a time limit for transfers of 10 working days from referral and stressed the importance of ensuring that transfers take place “without delay”. There was an “escalation process” for local authorities that did not comply. This involved the Home Office sending a letter to the receiving local authority if it had not accepted a transfer 20 working days after the entry local authority first made its request. The letter asked for confirmation that the transfer would be completed within a further 2 working days. If that did not work, the Home Office might decide to escalate the matter internally. This involved a number of steps, leading to the possibility of a recommendation for judicial review proceedings to be brought against the recalcitrant local authority. Kent CC says that, in practice, the child was by this time invariably placed with another local authority.
Version 4 was promulgated on 24 August 2022. It reduced the 10 working day transfer deadline to 5 working days for children who were not in the care of a local authority (i.e. those who were being accommodated by the Home Secretary in hotels) and increased the threshold for transfers from 0.07% to 0.1% of the total child population. It also increased the funding available to local...
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