High Court rules Home Office use of hotels for unaccompanied asylum-seeking children unlawful

Thursday 30 November 2023

Stephanie Harrison KCGráinne MellonOllie Persey and Georgie Rea, of the Garden Court Chambers Public Law team, are instructed by Bhatt Murphy for Brighton & Hove City Council.

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The High Court has ruled that the Home Office action in relation to unaccompanied asylum-seeking (UAS) children was unlawful when it chose to place them in hotels rather than into local authority care across the country through the statutory National Transfer Scheme.

In the judgment, the court found that the National Transfer Scheme, by which UAS children are transferred into the care of a local authority, was operating unlawfully until July 2023, when the court first ruled the use of hotels to be unlawful. 

In future, the National Transfer Scheme operated by the UK government will need to ensure that it will operate in a way that permanently eliminates the use of hotels to accommodate these children. 

Brighton & Hove and East Sussex County Councils actively supported Kent County Council (KCC) in a claim for judicial review regarding the Home Office’s failure to effectively operate the National Transfer Scheme (NTS) and to avoid the situation arising again whereby the government could seek to justify the use of hotels rather than children being promptly placed into the care of a local authority via the NTS as intended by parliament through the Immigration Act 2016.

The distribution of UAS children under the national scheme is supposed to be mandatory, but at no time during the unlawful use of hotels did the Home Office force reluctant local authorities to take children as quickly as the scheme requires. 

Instead, the claim revealed that were it not for the successful judicial review claim of Brighton & Hove City Council and ECPAT, the Home Office had planned to open more hotels and embed their use into the system to deal with the numbers arriving in Kent. The hotels commissioned have continued to receive tax payer funds while standing empty, following the July judgment that their use was unlawful.

The distribution of children across local authorities remains deeply unequal, with some authorities being in excess of their quota and others well below. 

Brighton & Hove City Council provided evidence in the claim which demonstrated that the funding local authorities currently receive for UAS children is inadequate, and relies on local authorities making up the deficit of what is needed from their already overstretched council budgets.

Councillor Bella Sankey, Leader of the Council said:

“These judgments from the High Court bring this miserable chapter in the treatment of unaccompanied asylum-seeking children to an end, locally and nationally. 

“I am relieved that as a result of these judgments the Secretary of State can no longer resort to the routine use of hotels for unaccompanied children. 

“I’m proud that Brighton & Hove City Council brought this ground-breaking legal case and has continued to hold the Home Office to account."

It’s an enormous achievement and marks a significant step change in how these extremely vulnerable children are treated in this country."

The full press release from Brighton & Hove City Council can be found here.

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