Judge set deadline for Home Office to transfer unaccompanied asylum-seeking children housed in Kent to local authorities

A High Court judge earlier this month (15 September) ordered the Home Office to take all possible steps to transfer unaccompanied asylum-seeking (UAS) children already housed in Kent hotels to the care of a local authority by last Friday (22 September).

Mr Justice Chamberlain added: “If a child is placed in a hotel after the date of this order, the SSHD [Secretary of State for the Home Department] must take all possible steps to transfer each of them to the care of a local authority within 5 working days, of the day on which they are so placed.”

Every Child Protected Against Trafficking (ECPAT), a charity, had submitted to the judge that the proportion of UAS children housed in Kent hotels was "growing" despite the practice being ruled unlawful in July.

At the hearing on 15 September, Mr Justice Chamberlain was told that the Government had committed to give Kent County Council (KCC) a £9.75m “immediate cash injection” to support it in its discharge of Children Act 1989 services in respect of UAS children, and that a “sustainable funding model” was to be agreed.

Last month, Kent warned that it could not meet its statutory duties to children as a result of an "inadequate" National Transfer Scheme (NTS) and high numbers of UAS children arriving on its shores.

The council had previously eased pressure on its care services through a deal with the Home Office that capped the number of UAS children the council would take - dubbed ‘the Kent Protocol’.

But in a High Court ruling on 27 July, Mr Justice Chamberlain found the practice to be unlawful. The judge also ruled that Kent's decision to stop taking UAS children breached the Children Act 1989.

The High Court further ruled that the Home Office’s policy of placing UAS children in hotels was unlawful when it became “systematic and routine”.

The initial judgment involved judicial review claims brought by KCC, Brighton and Hove City Council, and ECPAT.

Earlier this month (6 September), Mr Justice Chamberlain decided not to extend the suspension of his order quashing the deal brokered between the Home Secretary and Kent that capped the number of UAS children the council had to accommodate.

But Chamberlain J 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 children who were in hotels on 27 July 2023 and were still there, the judge said.

Chamberlain J also decided that he would schedule the additional hearing on 15 September to consider whether further relief was required.

The Home Office revealed that at the time of the 15 September hearing, there were 106 children being accommodated in hotels in Kent, of which 83 were under 16. It was said that the youngest child is 13 and that two children had gone missing.

In its skeleton argument, ECPAT said: “Since 17 August 2023, there have been further discussions between KCC and Central Government and continued efforts made by KCC to increase its capacity. However, and despite this:

(i) KCC has still not accepted Children Act 1989 duties to all UAS children who arrive in its area and are notified to it.

(ii) UAS children have continued to be accommodated in hotels in numbers that have barely changed since the last hearing. It is a cause for particular concern that a significant majority of them are under 16 and this appears to be a deterioration from the previous position.

(iii) There are still significant areas of difference between KCC and Central Government about funding arrangements, the operation of the NTS and whether the requirement (due to come into effect on 28 October 2023) to register supported accommodation can be modified.

(iv) Even if funding arrangements can be agreed, the proposals put forward by KCC envisage a return to lawful operations over a timeframe extending to at least March 2024. This is an unacceptably long period.”

The charity submitted that the question of relief should be “further postponed” and suggested a hearing on this issue “after judgment is handed down on KCC’s claim against the Secretary of State for the Home Department (SSHD)”.

KCC’s claim against the Secretary of State for the Home Department will be heard on 5 October.

At the 15 September hearing Mr Justice Chamberlain additionally ordered that there should be a hearing on further relief to be listed “no earlier than two weeks and no later than four weeks after the hand-down of the judgment in the Kent County Council claim against the SSHD”.

The county council is understood to have welcomed the increase in funding.

Lottie Winson