R (Help Refugees Ltd) v Secretary of State for the Home Department

The Court of Appeal considered the lawfulness of the Secretary of State’s implementation of section 67 of the Immigration Act 2016, which required the Government to determine a "specified number" of unaccompanied asylum‑seeking children to be relocated to the United Kingdom "in consultation with local authorities". The court reviewed (i) whether the statutory consultation was conducted fairly and lawfully, and (ii) whether adequate reasons were given to children assessed and refused transfer under the section 67 criteria.

The court upheld the Divisional Court’s conclusion that the consultation process, taken as a whole, was lawful and not so unfair as to be unlawful: the Secretary of State had a broad evaluative discretion in collecting and treating local authority capacity information, and the method adopted (counting numeric offers received by a cut‑off and treating unquantified or late offers differently) was not irrational. Specific complaints about percentage responses, the consultation closing date and confusion in Scotland were rejected.

However, the court found that the reasons given to children refused transfer under the section 67 criteria were legally inadequate. Most rejected children received only one of two terse entries in the Home Office spreadsheet — "Age 18+" or "Criteria not met" — and the court held that such sparse reasons did not permit an effective challenge by judicial review in most cases. For that procedural‑fairness defect the appeal succeeded in part and a declaration of breach of the common law duty of fairness was appropriate.

Background and parties: The claimant, a charity, challenged the Secretary of State’s implementation of section 67 of the Immigration Act 2016 which required the Government to consult local authorities before specifying a number of unaccompanied asylum‑seeking children (UAS children) to be resettled from Europe. The Divisional Court (Treacy LJ and Ouseley J) rejected the challenge ([2017] EWHC 2727 (Admin)). The claimant appealed, supported by the AIRE Centre; the Secretary of State defended the implementation and the reasons given to refused applicants.

Nature of the claim / relief sought: Judicial review challenging (i) the lawfulness of the statutory consultation under section 67(2) and (ii) the adequacy of reasons provided to children assessed but refused transfer under the section 67 criteria. The appellant sought relief including declarations and mandatory relief as appropriate.

Procedural history: First instance: Divisional Court refused all grounds ([2017] EWHC 2727 (Admin)). This appeal to the Court of Appeal followed; judgment given on 3 October 2018 ([2018] EWCA Civ 2098).

Issues framed:

• Whether the Secretary of State complied with the statutory duty to consult local authorities under section 67(2) when fixing the "specified number", including complaints about: (a) treatment of percentage (0.07%) responses; (b) uncertainty about the consultation closing date; and (c) confusion caused in Scotland.
• Whether the Secretary of State breached the common law duty of procedural fairness in the reasons given to children refused transfer under the section 67 criteria.

Facts and implementation points of note: Section 67 required the Secretary of State to determine a specified number "in consultation with local authorities". The Home Office ran a consultation in September–October 2016 seeking local authority capacity for the remainder of the financial year. The Home Office treated specific numeric offers received by a cut‑off date (effectively 14 October 2016) as forming the principal basis for the specified number, deducting places to allow for family‑reunion breakdowns and other commitments. The Immigration Minister initially specified 350 places (20 December 2016), later increased to 480 (April 2017) after discovery of additional regional returns. The operational assessment of children in France used published criteria (Version 2 guidance, November 2016) and an intake form; approximately 1,800 interviews were conducted and decisions conveyed to the French authorities. Rejected children were recorded in the final spreadsheet with only two assessment entries for section 67 refusals: "Age 18+" or "Criteria not met".

Court’s reasoning and conclusions: On consultation, the court emphasised the wide evaluative discretion given to the Secretary of State, the complex and volatile factual matrix (varying demands, other resettlement schemes, spontaneous arrivals, regional capacity, rush following Calais clearance) and the requirement that the consultation provide sufficient information to enable a reasoned national assessment of the highest number reasonably accommodable. The court held the consultation was not so unfair as to be unlawful: the approach of using specific numeric offers received by the cut‑off and treating late or unquantified offers as capacity for other commitments was not irrational; the alleged procedural blemishes and Scottish confusion did not render the statutory consultation unlawful.

On reasons, the court held the common law duty of fairness required sufficiently intelligible reasons to permit effective judicial review. The terse entries "Age 18+" or "Criteria not met" were generally inadequate because they did not identify which element of the multi‑element published criteria had not been satisfied (for example, disputed nationality, sibling relationship, age, arrival date or best‑interests evaluation). The court considered operational constraints but concluded that the mere urgency did not justify such sparse reasons in the face of a statutory scheme and the need for effective challenge. Consequently the court allowed the appeal on this ground and indicated a declaration of breach of the common law duty of fairness would be appropriate.

Subsidiary findings: The court accepted that children assessed against the published section 67 criteria had a reasonable expectation of transfer if they met those criteria. The court also noted that international instruments such as the UN Convention on the Rights of the Child and the best‑interests principle informed the context and weight of decision‑making but did not change the substantive legal tests for the two issues before the court.

Appeal allowed in part. The Court of Appeal dismissed the challenge to the lawfulness of the statutory consultation under section 67(2) — holding the Secretary of State’s consultation process and treatment of responses were not irrational or unlawfully unfair in the complex and rapidly changing circumstances — but allowed the appeal on procedural‑fairness grounds: the reasons given to children refused transfer under the section 67 criteria were legally inadequate and breached the common law duty of fairness, meriting a declaration of breach.

Divisional Court (Treacy LJ and Ouseley J) refused the claimant’s challenge in the High Court: [2017] EWHC 2727 (Admin). The claimant appealed to the Court of Appeal, which delivered judgment in this appeal: [2018] EWCA Civ 2098 (this decision).