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

A statutory consultation on capacity for unaccompanied asylum-seeking children need only provide sufficient information for the decision-maker to make the required broad assessment. Where legislation gives no procedural parameters, the public body generally determines the consultation’s manner and extent, subject to conventional judicial review. It need not require every consultee to respond numerically or allocate all indicated capacity to the statutory scheme, provided its approach is rational and responses are conscientiously considered. The standard of procedural fairness is constant, but its content is fact-specific. The vulnerability of affected children is an important factor. A person assessed under published eligibility criteria is entitled to assessment against the criteria in force at the time and has a reasonable expectation of the benefit if they are met. Reasons for rejection must normally permit a realistic judicial review. “Criteria not met” was inadequate.

The appellant charity challenged the Secretary of State’s implementation of section 67 of the Immigration Act 2016, which required arrangements to relocate a specified number of unaccompanied refugee children from Europe. It alleged that the consultation with local authorities was unlawful because of numerical responses, the consultation closing date and confusion in Scotland. It also challenged the adequacy of reasons given to children rejected under the published eligibility criteria.

The Divisional Court rejected the claim: [2017] EWHC 2727 (Admin). The central issues on appeal were whether the consultation lawfully informed the specified-number decision and whether the reasons given to rejected children were sufficient to permit an effective challenge.

The appeal was allowed in part. The consultation challenge failed, but the reasons challenge succeeded. The appropriate relief was a declaration that the reasons given breached the common-law duty of fairness.

1. The court rejected the suggestion that a heightened standard of fairness applied because the affected persons were vulnerable children. Procedural fairness has a constant standard, but its content is highly fact-specific. The vulnerability of the children was nevertheless an important contextual factor.
2. Section 67 required the Secretary of State to determine the highest number of children who could reasonably be accommodated in the United Kingdom, taking account of the children’s best interests, other children, available local-authority capacity, existing commitments and uncertain demand. Article 3(1) of the Convention on the Rights of the Child reinforced, but did not substantively add to, those statutory obligations.
3. The consultation was an information-gathering exercise, not a poll of support or opposition. Consultees had to receive sufficiently clear and non-misleading information to make an intelligent response, and the responses had to be conscientiously considered. The Secretary of State had a wide discretion because section 67 prescribed no particular consultation procedure. The approach of counting specific numerical offers made by the relevant date, while treating percentage or later offers as capacity for other commitments, was crude but rational. No clear unfairness was shown.
4. A person assessed under published criteria was entitled to be assessed against the criteria in force at the time, with a reasonable expectation of transfer if the criteria were met. The Secretary of State could change the policy prospectively, but the issue had no practical effect because the Secretary of State accepted that position.
5. The rejected children were entitled to sufficient reasons to permit a realistic judicial-review challenge. “Age 18+” might identify one basis of rejection, but “Criteria not met” did not identify whether the difficulty concerned nationality, age, dates of arrival, best interests or a claimed sibling relationship. The urgency of the operation did not make more adequate reasons impracticable, since the relevant information had already been collected. The procedure was therefore unlawful.

• Court of Appeal (Civil Division) [2018] EWCA Civ 2098: consultation challenge dismissed; appeal allowed on the reasons ground and declaration granted.
• Divisional Court of the Queen’s Bench Division [2017] EWHC 2727 (Admin): challenge refused on all grounds.