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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Help Refugees Ltd, R (on the application of) v The Secretary of State for the Home Department & Anor  EWHC 2727 (Admin) (02 November 2017)
Cite as:  WLR(D) 725,  4 WLR 203,  EWHC 2727 (Admin),  Imm AR 379
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Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
|The Queen on the Application of Help Refugees Limited||
|- and -
|The Secretary of State for the Home Department
|The AIRE Centre
Mr David Manknell and Ms Amelia Walker (instructed by GLD) for the Defendant
Ms Caoilfhionn Gallagher QC, Ms Katie O'Byrne and Ms Jennifer Robinson (instructed by Freshfields Bruckhaus Deringer) for the Intervener
Hearing dates: 20, 21 & 22 June 2017
Crown Copyright ©
Lord Justice Treacy:
"Unaccompanied Refugee Children: Relocation and Support
(1) The Secretary of State must, as soon as possible after the passing of this Act, make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.
(2) The number of children to be resettled under subsection (1) shall be determined by the Government in consultation with local authorities.
(3) The relocation of children under subsection (1) shall be in addition to the resettlement of children under the Vulnerable Person's Relocation Scheme."
(i) The Syrian Vulnerable Persons Resettlement Scheme (VPRS), which is a scheme to resettle up to 20,000 refugees fleeing the Syrian conflict by 2020. This is not solely concerned with unaccompanied children. It is referred to in s.67(3);
(ii) The Vulnerable Children Resettlement Scheme (VCRS), also known as the MENA scheme, which proposes to resettle up to 3,000 vulnerable children and their families from the Middle East and North Africa by 2020. This scheme includes unaccompanied children where it would be in their best interests;
(iii) The Mandate Resettlement Scheme which resettles individuals, assessed to be refugees by UNHCR, with their families who have refugee status in UK. This may apply to UASC.
"Today formally starts the sign up and consultation process for not only the UASC Transfer Scheme, but also the Children at Risk Scheme and the support we will provide to unaccompanied refugee children who are currently in Europe…"
The Consultation Generally
Ms Dubinsky began by emphasising that it is axiomatic that there must be a fair consultation and that it is for the court rather than the defendant to decide what is fair.
"… irrespective of how the duty to consult has been generated, the common law duty of procedural fairness will inform the manner in which the consultation should be conducted".
i) the consultation must be at a time when proposals are still at a formative stage;
ii) the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response;
iii) adequate time must be given for consideration and response;
iv) the product of consultation must be conscientiously taken into account in finalising any decision.
"This case…is concerned with a statutory duty of consultation. Such duties vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or it may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public; the identity of the consultees may be prescribed or left to the discretion of the public authority; the consultation may take the form of seeking view in writing, or holding public meetings; and so on and so forth. The content of a duty to consult can therefore vary greatly from one statutory context to another… A mechanistic approach to the requirements of consultation should therefore be avoided."
"In Greenpeace I was not seeking to put forward a different test, but merely indicating that in reality a conclusion that a consultation process has been so unfair as to be unlawful is likely to be based on a factual finding that something has gone clearly and radically wrong."
"If it is alleged that a consultation process is unfair, clear unfairness must be shown."
"Any decision regarding the relocation of unaccompanied asylum seeking children would have to be balanced with our ongoing and future commitments to helping refugees and asylum seekers. In particular the Syrian vulnerable persons relocation scheme [VPRS] and any future scheme to relocate children from Europe and children at risk, draw from the same resources, and our capacity to delivery effective relocation that offers the same quality of life, must be balanced with our ability to help people through these schemes."
"We therefore await further details on the initiative to relocate children from Europe, and will consider relocation of accompanied child asylum seekers in this context along with the fact that we are in the very early stages of forging a multi-cultural society."
"It is clear we are a long way from being able to transfer any unaccompanied asylum seeking and refugee children to Northern Ireland"
although she felt that they had started on a positive engagement. She recorded that no consultation event would be arranged at that stage as Northern Ireland officials wanted to advise their Ministers and do more work with all authorities and agencies with an interest in the issues. The matter was to be reserved for a later date. As a result no consultation meetings took place in Northern Ireland, nor was the letter of 8 September 2016 sent to Northern Ireland.
"… the central team must consider other factors when allocating to a region beyond breaching the cap, and other recent UASC arrivals via the transfer scheme, for example, UASC arrivals the LA may have outwith the scheme, the number of other pressures the LA may be under from the Syrian resettlement scheme and the adult asylum seekers or refugees along with the other demands they may have on their care system locally." (sic)
"At the time the consultation closed in October, after months of engagement with ourselves and local authorities, we had been clear that Scotland had no spare capacity in the care system, did not feel that the transfer protocol was suitable for Scotland given the devolved legislative systems, and had concluded that until the transfer scheme was extended to cover Scotland through secondary legislation, Scottish local authorities could not participate."
"It was not until mid-late October during the closure of the Calais camps that we identified s.67 applied UK wide and outwith the NTS, at which point I put out a call for any placements on 28/10/16 as you've seen from the evidence. Offers were made in response to an emergency humanitarian situation and did not imply any ongoing capacity in the care system in Scotland."
"I have to warn you that there are significant pressures on the arrangements for looked after children in Scotland already, and unfortunately that there is not spare capacity sitting ready to accommodate young people who may need to be resettled from elsewhere in the UK."
"We (HMG) need to consult with LAs across the UK to understand capacity and willingness to support his scheme before going back to Parliament with an updated position."
"Although we have been working closely with local government partners prior to this event, the launch marked the start of the formal consultations with local authorities on two key issues being secure buy in for the NTS scheme and agree the number of unaccompanied refugee children from Europe that will be resettled to the UK (over and above the number of spontaneous UASC arrivals local authorities might expect to receive under the transport scheme)." (sic)
Consideration of the responses and the rationality of the conclusions
(b) Overlooking offers made before 14 October 2016
(c ) The role of the 0.07% threshold
(d) Specific offers made between 14 October and 20 December 2016
Hammersmith and Fulham
(e) Incomplete or equivocal offers: 75 plus places
(f) Local authorities which took children under s.67 but which had made no recorded offer, totalling 106.
(g) Potential future increases in capacity
(h) The defendant's response to consultees' questions raised during the consultation
The implementation issues
"responsibility on the sending Member States to identify and refer children who meet the criteria, rather than the UK identifying or interviewing any or all unaccompanied children located in France, Greece or Italy. In addition although the SSHD intends to move quickly to transfer the remaining children, she recognises that the UK authorities are not under the same operational constraints as Calais in having to interview over 2,000 individuals claiming to be children, for whom no prior information was on record with either the UK or French authorities, in a matter of weeks. Rather, it will be entirely the responsibility of the referring Member State, based on the information already available to them about unaccompanied children present on their territory, to refer unaccompanied children who meet the criteria."
The defendant has also asked those countries to prioritise those children likely to qualify for refugee status and the most vulnerable without specific reference to age or nationality. Accordingly, the Government had broadened the eligibility criteria, also asking the French, Italian and Greek authorities to prioritise the most vulnerable children and those most likely to qualify as refugees. The Governments would take the decisions as to which children, meeting the UK eligibility criteria, should be referred for relocation.
The procedural issues
The continuation of the 20 March 2016 date of arrival in Europe in the March 2017 policy statement