Dubs Amendment: High Court finds Home Office unlawfully failed to publish policy and breached its duty of candour

Tuesday 22 January 2019

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The High Court has today handed down judgment in the case of R (ZS) v Secretary of State for the Home Department [2019] EWHC 75 (Admin). This claim challenged the Home Office’s failures to implement the so-called ‘Dubs Amendment’, s. 67 of the Immigration Act 2016, which required the Secretary of State to make arrangements to transfer asylum-seeking children from Europe. This power was used to transfer a number of children from the Calais ‘Jungle’ camp in late 2016. ZS was one of the children considered for transfer at that time but he was refused for failure to meet the criteria set by the Home Office, despite significant vulnerabilities.

This claim mounted a wide-ranging challenge to the Home Office’s implementation of the Dubs Amendment, under which fewer than 250 children have been transferred to the UK, despite ministers controversially allocating merely 480 places for children transferred from Europe.

ZS is one of the many children still resident in France hoping for transfer to the UK. ZS has not been able to arrange a referral for transfer to the UK, in part because the relevant guidance governing transfer was not published. The Government eventually published this guidance on the first day of the High Court hearing of ZS’s claim. Mr Justice Ouseley, giving the judgment, agreed that, as a result of the failure to publish this policy, “at least some French social workers were not aware of their role in making referrals”. He held that the policy should have been published in the UK and that it was not fair to leave the representatives of potential transferees in the UK unaware of the rules, criteria or processes for transfer.

The High Court therefore granted ZS a declaration that the failure by the Home Office to publish its guidance on referrals was unlawful. It has also agreed with previous decisions by the Court of Appeal in concluding that the Home Office was in breach of its duty of candour about its failure to give ZS reasons for its refusal to transfer him to the UK.

More than two years after the passage of the Dubs Amendment, which called on the government to act ‘as soon as possible’, a significant proportion of the already very small number [480] of places available for such vulnerable children – like ZS – to be transferred remains unfilled. Today’s judgment is another reminder of the Home Office’s unwillingness to give proper effect to the Dubs Amendment. The Government’s failure to publish the policy which would help children like ZS to come to the UK until eleventh hour, in the course of this litigation, placed yet another obstacle in the way of vulnerable children seeking referral to the UK.

Instructions are currently being taken on whether to seek permission to appeal to the Court of Appeal.

ZS was represented by Sonali Naik QC, Bryony Poynor and Miranda Butler of the Garden Court Chambers Immigration Team. They were instructed by Toufique Hossain, Krisha Prathepan and Jamie Bell of the Public Law department at Duncan Lewis.

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