Help Refugees Ltd, R (on the application of) v The Secretary of State for Home Department & Anor

Section 67 of the Immigration Act 2016 required the highest number of unaccompanied refugee children that could reasonably be accommodated, taking account of other commitments and available resources. Consultation had to provide sufficient information for that assessment. Its manner and extent were subject to conventional judicial review, and notified capacity could be apportioned between competing commitments.

Procedural fairness requires reasons sufficient to make judicial review a realistic possibility, unless operational requirements make their provision impractical. A statement that eligibility criteria were not met was inadequate where several different grounds could explain refusal. Detailed decision letters were unnecessary, but sufficiently informative reasons could have been supplied from recorded assessments. Children’s vulnerability informs the content of fairness rather than changing its standard.

Help Refugees Limited, a charity assisting refugees and displaced people, challenged the Home Secretary’s implementation of section 67 of the Immigration Act 2016. The provision required arrangements to relocate and support a number of unaccompanied refugee children from Europe, determined in consultation with local authorities. The AIRE Centre, a charity concerned with unaccompanied children’s rights, intervened in support.

The charity challenged the consultation underlying the specified number, ultimately 480, and the reasons supplied to children in France refused transfer under published eligibility criteria. The Divisional Court dismissed both challenges in [2017] EWHC 2727 (Admin). The appeal concerned the treatment of percentage and late consultation responses, alleged confusion among Scottish authorities, and whether the brief refusal reasons enabled an effective legal challenge.

1. The appeal was allowed on the reasons ground and dismissed on all consultation grounds. Hickinbottom LJ delivered the judgment, with which King and McCombe LJJ agreed. Subject to submissions on its precise form, a declaration of breach of the common law duty of fairness would provide sufficient relief ([119], [135]–[137]).

2. Section 67 of the Immigration Act 2016 required the highest number of children that could reasonably be accommodated. Their interests carried particular weight, but had to be balanced against other children’s interests, existing commitments and reasonable resource capacity. The assessment involved complex social and financial judgments in a volatile situation. What was reasonable was essentially for the Secretary of State ([19], [84], [92]–[98]).

3. Consultation had to enable an intelligent response and provide sufficient information for its statutory purpose. Its manner and extent were for the Secretary of State, subject to conventional judicial review. Clear unfairness was required to establish unlawfulness. The assessment was necessarily broad and did not require a response from every authority or allocation of all notified capacity to section 67 ([90], [96]–[98]).

4. Using timely numerical offers for section 67, while reserving later and unquantified capacity for other commitments, was rational. Percentage responses did not necessarily establish available placements. Uncertainty about the extended closing date did not make the procedure unlawful, and later offers were known when the number was fixed. The request to Scottish authorities was reasonably clear and did not commit them to the National Transfer Scheme. Their subsequent emergency offers did not establish generally spare capacity of the kind sought by the consultation ([101]–[111], [118]).

5. A published policy ordinarily had to be followed unless good reasons justified departure. Children assessed under the criteria had a reasonable expectation of transfer if they satisfied them, although the criteria could be changed. The standard of fairness was constant, but its content depended on context, including the children’s exceptional vulnerability. Section 55 of the Citizenship, Borders and Immigration Act 2009 did not apply to children overseas. Article 3(1) of the UN Convention on the Rights of the Child reinforced the section 67 obligations; broader questions about its domestic role required no determination ([72]–[87]).

6. Fairness was assessed objectively. Effective access to judicial review generally required reasons enabling a realistic challenge, unless operational requirements made their provision impractical. Following R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812, the statement that criteria were not met was inadequate: a child could not identify whether refusal concerned age, nationality, dates of arrival, family relationship or best interests. For at least the majority of refused children, judicial review lacked a real prospect ([122], [126]–[132]).

7. Urgency did not justify the inadequate reasons. Detailed individual letters were unnecessary, and the recorded questionnaire answers already evidenced the grounds of refusal. More informative reasons could have been communicated. The procedure therefore breached the common law duty of fairness ([130], [133]–[135]).

• Court of Appeal (Civil Division): In [2018] EWCA Civ 2098 , unanimously allowed the appeal on the reasons ground and upheld the rejection of all consultation grounds. A declaration of breach of the common law duty of fairness was considered sufficient, subject to submissions on its precise form.
• High Court, Queen’s Bench Division (Divisional Court): Treacy LJ and Ouseley J dismissed the consultation and reasons challenges in [2017] EWHC 2727 (Admin) . A consent order recorded that children transferred under Dublin III were excluded from the section 67 specified number.