ZS v The Secretary of State for the Home Department

The claim was a judicial review under section 67 of the Immigration Act 2016 challenging the Home Secretary's implementation of that duty in relation to unaccompanied asylum-seeking children (UASC) from the Calais camp. The claimant advanced multiple grounds: unlawfulness of the Calais Guidance (notably the nationality and vulnerability criteria), unlawfulness of the requirement that certain vulnerability referrals be made by French authorities, defects in the interview and best interests procedures, failure to give adequate reasons for refusal, and failure to publish and disseminate the Detailed Process Guidance (DPG).

The court held that: (i) a nationality-based eligibility criterion focusing on nationalities with high asylum grant rates was lawful and rational in the operational circumstances; (ii) the narrow vulnerability criterion (high risk of sexual exploitation) and the referral route from French authorities were rational and not an unlawful delegation or fetter; (iii) the Secretary of State lawfully retained a residual discretion but was entitled to treat tightly-drawn policy criteria as the primary route and to require genuinely exceptional grounds to engage an exception; (iv) procedural complaints were largely without substance because an appropriate adult was present at interview, the claimant plainly failed the published criteria and the lack of written reasons was corrected promptly; and (v) the DPG should have been published earlier in the United Kingdom, at least to interested parties.

Accordingly the claim was dismissed save for two limited declarations concerning the late provision of brief reasons and the late dissemination in the UK of the DPG.

This was a first-instance judicial review in which a child from the Calais camp (ZS) challenged the Home Secretary's handling of the relocation scheme under s67 Immigration Act 2016.

• Nature of the claim: permission was sought to challenge the lawfulness of the Calais Guidance (November 2016), the decision communicated in December 2016 and the March 2017 decision declining to exercise residual discretion to admit the claimant, certain procedural aspects of interviews and best interests determinations, and the failure to publish and disseminate the Detailed Process Guidance agreed with France in October 2017. Remedies sought included quashing orders and declarations.
• Issues framed by the court: whether the nationality criterion (selection of Syrian and Sudanese) was unlawful or irrational; whether the vulnerability criterion (high risk of sexual exploitation) was too narrow and unlawful, including the lawfulness of requiring referrals by French authorities; whether the SSHD lawfully considered (or ought to have considered) the exercise of residual discretion outside s67; whether the interview and notification procedure and the absence of prompt written reasons were unfair; and whether the DPG should have been published and disseminated to those in a position to refer (notably French social workers).
• Court's reasoning (concise): the judge accepted that s67 imposed a duty but left policy choices to the Secretary of State. Given the speed, operational constraints and dependence on French cooperation during the Calais clearance, nationality and age criteria based on grant rates were a lawful, rational means of prioritising limited places. The vulnerability criterion and referral route were rationally justifiable as practical mechanisms to identify particular victims quickly; they did not unlawfully delegate decision-making or unlawfully fetter discretion. The Secretary of State had retained a residual discretion, but she was entitled to treat the criteria as a primary allocation mechanism and to require truly exceptional grounds for an exception; on the facts she lawfully refused to admit the claimant. Procedural challenges largely failed: an appropriate adult had been present, the claimant plainly failed the eligibility criteria, and although brief written reasons should have been given earlier, disclosure remedied the shortfall. The DPG should have been published earlier in the UK (at least to interested parties) but publication abroad and modes of dissemination to French bodies were matters for the French authorities.

The judge therefore dismissed the claim except for limited declaratory relief concerning (i) the unfairness of the absence of short written reasons until 5 January 2017, and (ii) the unfairness of the late dissemination of the DPG within the United Kingdom.

The claim is dismissed save for limited declarations. The court found that the Secretary of State lawfully adopted the Calais Guidance and its nationality and vulnerability criteria given the operational constraints and the specified-number cap under s67 Immigration Act 2016; the requirement for French referrals was rational and not an unlawful delegation or fetter; the Secretary of State lawfully considered her residual discretion and lawfully refused to exercise it in the claimant's favour; procedural complaints largely failed (an appropriate adult was present and the claimant plainly failed the eligibility criteria) though brief written reasons should have been given earlier and the Detailed Process Guidance should have been disseminated earlier in the United Kingdom. Those narrow declarations were granted but the substantive judicial review claim was dismissed.