High Court judge lifts suspension of order quashing deal between Kent and Home Office over unaccompanied asylum seeking children

A High Court judge has decided not to extend the suspension of an order quashing a deal brokered between the Home Secretary and Kent County Council that capped the number of unaccompanied asylum-seeking children (UAS children) the council had to accommodate.

The initial judgment, which was handed down on 27 July, involved judicial review claims brought by Kent County Council, Brighton and Hove City Council, and children's charity Every Child Protected Against Trafficking (ECPAT).

The targets of the challenges included the protocol agreed in September 2021 between Kent and the Home Secretary (“the Kent Protocol”) and a protocol setting out how the procedure for the transfer of responsibility for UAS children from one local authority to another under the National Transfer Scheme (“the NTS Protocol”).

Mr Justice Chamberlain concluded that:

• Kent was acting unlawfully, in breach of its duties under the Children Act 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.
• The Home Secretary was acting unlawfully by agreeing the Kent Protocol; by arranging transfers 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.

The judge 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 participation of the entry authority.

Mr Justice Chamberlain, however, suspended the effect of these orders under s. 29A(1)(a) of the Senior Courts Act 1981 for three weeks, until 18 August 2023, and set a further hearing for 17 August to consider whether to grant any further relief.

Following the hearing on 17 August, Chamberlain J decided not to extend the suspension for the order quashing the Kent Protocol as the fixed cap on numbers that made the scheme unlawful was no longer being implemented. This order came into effect on 18 August, as originally envisaged.

The judge's decision came despite Brighton and Hove City Council’s submission that the suspension should be extended to enable the court to retain a role in monitoring the remedying of the unlawful situation identified.  

In light of the order coming into effect, the judge made a declaration that Kent had acted and was acting unlawfully, in breach of its duties under the Children Act 1989, by failing to accommodate and then look after all UAS children when notified of their arrival by the Home Office.

Chamberlain J meanwhile decided to extend, "for a short period", the suspension of the order quashing the NTS Protocol insofar as it permits the Home Secretary to make arrangements for the transfer of responsibility for UAS children without the participation of the entry authority.

This was to allow the Home Secretary to complete the arrangements for the transfer of responsibility for a small number of children who were in hotels on 27 July 2023 and are still there now, the judge said.

Chamberlain J also decided that he would schedule an additional hearing to take place to consider whether further relief was required.

Explaining this decision, the judge said: "There are two features of the evidence prepared for this hearing which strongly support a continuing remedial role for the court. The first is that, although the court's judgment appears to have prompted a great deal of useful work by Kent CC and the Home Secretary, considerable work remains to be done.

"The second is that there appear to be further disputes emerging between Kent CC and the Home Secretary as to how matters should now progress. If the court does not retain some further role, there is a serious danger that the parties will revert to positions of each blaming the other and that these positions will lead, again, to an impasse."

Mr Justice Chamberlain said he had borne carefully in mind that the court’s continued role imposed burdens on Kent. “Its senior staff will have to spend time preparing evidence for the court, rather than concentrating on remedying the unlawful situation which my judgment identified. Nonetheless, the evidence about the steps taken in the last three weeks seem to me to show that, despite the undoubted burdens imposed by it, the court’s continued supervision has focussed minds and achieved results. In my judgment, that supervision should continue for the time being.”

Mr Justice Chamberlain said there was a dispute about whether the relief granted following the hearing on 17 August 2023 should also include mandatory orders imposing procedural and/or substantive obligations between the 17 August hearing and the upcoming hearing (on 15 September).

The judge decided that they should, "because remedying the unlawful situation identified will require Kent CC and the Home Secretary to work together; and because a schedule of procedural and substantive obligations (to the extent possible agreed) would provide a useful framework in accordance with which that work can be undertaken".

Kent continues to warn that it cannot meet its statutory duties to children in the county as a result of the "inadequate" NTS, having announced last week (29 August) that it cannot look after UAS children while also discharging its duties to other children in Kent.

Commenting on the judge's decisions, Patricia Durr, CEO of ECPAT UK, said the charity was pleased that the High Court "continues to retain oversight of the implementation of its judgment, to ensure that children currently in hotels are safely looked after by local authorities under the Children Act 1989 and that neither central nor local government departments act outside of the statutory child welfare framework and duties towards all children under The Children Act 1989. Notwithstanding, it should not be necessary."

She added: "It is shocking that it has taken litigation by a small charity like ours to end the unlawful practice of the Home Secretary and Kent County Council, which has meant thousands of children denied care on the basis of their immigration status and too many remain missing at risk of significant harm as a result."

Adam Carey

Martin Westgate KC, Shu Shin Luh and Antonia Benfield of Doughty Street Chambers, instructed by Freshfields Bruckhaus Deringer LLP, appeared for ECPAT UK.

Stephanie Harrison KC, Ollie Persey and Georgina Rea of Garden Court Chambers, instructed by Bhatt Murphy Solicitors, appeared for Brighton and Hove City Council

Hugh Southey KC of Matrix Chambers and Azeem Suterwalla of Monckton Chambers, instructed by Bevan Brittan, appeared for Kent County Council.

Deok Joo Rhee KC and Benjamin Tankel of 39 Essex Chambers, instructed by Government Legal Department, appeared for the Secretary of State for the Home Department and the Secretary of State for Education.