ZS v The Secretary of State for the Home Department

Section 67 of the Immigration Act 2016 gives the Secretary of State a broad discretion to devise practical, transparent criteria for relocating a limited number of unaccompanied asylum-seeking children. Criteria based on nationality, age and referral by the responsible foreign authorities may be lawful where speed, capacity and inter-state co-operation constrain individual assessment. The Secretary of State need not invite exceptional representations in every case, although a specifically raised exceptional case must be considered. Procedural fairness requires brief written reasons identifying why a child is ineligible. A process guidance document implementing section 67 should be published in the United Kingdom for interested persons, but the Secretary of State need not publish it abroad where the foreign authorities operate the referral system.

The claimant was an unaccompanied Afghan child who had lived in the Calais camp and was later placed in a French reception and orientation centre. He was refused transfer to the United Kingdom under section 67 of the Immigration Act 2016 because he was over 12, was neither Syrian nor Sudanese, and had not been referred by the French authorities as being at high risk of sexual exploitation.

He challenged the Calais eligibility guidance, the referral requirement, the handling of his vulnerability and best interests, the exercise of residual discretion, the procedure by which the refusal was communicated, and the non-publication of later detailed process guidance. The court also considered the effect of subsequent authorities concerning procedural fairness in the section 67 and Dublin III processes.

1. Criteria under section 67. The Secretary of State had a broad discretion to implement section 67 through policy. In the urgent circumstances of the Calais clearance, criteria based on age, nationality and a high risk of sexual exploitation were rational and sufficiently practical. The use of asylum grant-rate data, including adult and dependant data to obtain a reasonable sample, was lawful. The exclusion of Afghanistan was not irrational.
2. Vulnerability and referral. The absence of a general mental-health or wider vulnerability criterion did not make the policy unlawful. Requiring referral by the French authorities, or an organisation acting on their behalf, was rational because the French authorities had responsibility for the children and could make comparative assessments without requiring extensive UK casework. It did not unlawfully delegate the statutory decision or fetter the Secretary of State’s discretion.
3. Residual discretion. The Secretary of State was not required routinely to consider exceptions outside the policy or to invite representations about them. When the claimant’s exceptional case was specifically put forward, it was considered. The conclusion that his circumstances did not justify an exception under section 67 or section 3 of the Immigration Act 1981 was lawful.
4. Fairness and reasons. An appropriate adult had been present at the interview, and neither the claimant’s own social worker nor his solicitor was required to attend. However, fairness required brief written reasons identifying the eligibility criteria not met. The failure to provide such reasons until 5 January 2017 was procedurally unfair, but caused no continuing prejudice and did not justify quashing either decision.
5. Detailed Process Guidance. The Secretary of State was entitled to leave dissemination in France to the French authorities. Nevertheless, the guidance should have been published in the United Kingdom, at least for persons involved in the transfer process. The claim was dismissed, subject to declarations concerning the failure to give short written reasons and the failure to disseminate the guidance in the United Kingdom.