Judge rules that the Home Secretary acted irrationally in the case brought by Kent County Council on the operation of the National Transfer Scheme

The High Court has ruled that the Home Secretary acted irrationally in its operation of the National Transfer Scheme in a further judgement about the accommodation of unaccompanied children in Home Office hotels.  

The use of hotels for unaccompanied children was found unlawful in the judgement handed down on the 27 July 2023 after ECPAT UK brought a claim of judicial review against Kent County Council (CC) and the Home Office. The High Court also found that Kent CC acted in breach of its Children Act 1989 duties by failing to accommodate and look after all unaccompanied children seeking asylum when notified of their arrival.  

In this further judgement, Brighton & Hove County Council and East Sussex County Council, joined as interested parties. Mr Justice Chamberlain dismissed four out of the five grounds, finding that they were not well founded as to the use of the Home Office’s statutory powers, the inconsistency of the NTS protocol and their duties to safeguard the welfare of children. 

The fifth ground brought by Kent CC was allowed, with the judgement setting out that the Home Secretary’s decision-making in relation to the NTS was irrational because it failed to accept and account of its responsibility in: 

The Judge highlighted that both Kent CC and the Home Office used the same arguments from previous hearings, despite the determinations of illegality in the ECPAT UK decision, inducing a sense of ‘déjà vu’. He castigated Kent CC’s claim that they had been ‘forced’ to refuse unaccompanied children care on arrival in their area because of Home Office failures. Similarly, he rejected the Home Office’s insistence on the ‘need’ to resort to hotels because of Kent CC’s unlawful refusal to discharge its Children Act 1989 duties. ECPAT UK has always been concerned that both parties relied on these symbiotic arguments and did so again in this case, despite the previous judgement clearly setting out their illegality.    

Mr Justice Chamberlain also sets out the requirement for a plan to prevent the further use of hotels to accommodate unaccompanied children, subject to any decisions that the Home Secretary may take about the implementation of new powers in the Illegal Migration Act 2023. The minimum requirements of such a plan should be that it is lawful and that it recognises the Home Secretary’s own responsibility for the unlawful situation identified in the ECPAT UK, R (On the Application Of) v Kent County Council & Anor [2023] EWHC 1953 (Admin) decision ensuring that it does not recur. A further hearing to consider relief on this case has been fixed for 15 December 2023. 

Patricia Durr, CEO of Every Child Protected Against Trafficking (ECPAT UK) said: 

“We welcome this further judgement about the treatment and care of unaccompanied children. The High Court has made clear once again that it is not acceptable to put the welfare of children outside of the laws that parliament has made to protect them. The Children Act 1989 is a legal landmark in the UK’s respect for children’s rights, welfare and protection without discrimination – that the High Court consistently upholds this is a clear message to central and local government that every child matters and that they should work together to uphold that principle - nothing less is acceptable. 

ECPAT UK will also continue to fight for the rights of every child in the UK to live free from exploitation and to ensure all children can access the care they are entitled to under the statutory child protection legislation. The unlawful and unsafe use of hotels to accommodate unaccompanied children is a national child protection scandal and should never occur again. 

We remain concerned about the children who are still missing as a result of this illegality and will continue to call for all measures to find them, as well as a public inquiry to find out what happened.  Provisions in the Illegal Migration Act 2023 will mean more children are put at risk. We call on the new Home Secretary to reject them and to prioritise children’s welfare and safety.” 

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

Read the full judgement here: Kent County Council -v- Home Secretary (judiciary.uk) 

—ENDS— 

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