ECPAT UK, R (on the application of) v Kent County Council & Anor

The High Court held a series of preliminary legal conclusions about the treatment of newly arrived unaccompanied asylum‑seeking children (UAS children). The court concluded that Kent County Council acted unlawfully in refusing to accommodate some newly arrived UAS children because duties under the Children Act 1989 (notably ss. 17 and 20) are absolute and apply to children irrespective of immigration status. The court found the Kent Protocol unlawful because its capped approach formalised and induced breach of those duties. The court held that the National Transfer Scheme (NTS), made under ss. 69–73 of the Immigration Act 2016, requires arrangements between a transferring local authority and a receiving authority; the Home Secretary may not lawfully make transfer arrangements in cases where the transferring authority plays no part. The court accepted that the Home Secretary has a limited power (at common law or under s. 3(5) CA 1989) to provide temporary accommodation in true emergencies, but concluded that by December 2021 the Home Secretary’s systematic use of hotels to accommodate UAS children had exceeded those limits and was unlawful.

Background and parties: The claims for judicial review were brought by ECPAT UK, Brighton & Hove City Council and Kent County Council against the Secretary of State for the Home Department and/or Kent County Council. The litigation concerned how newly arrived unaccompanied asylum‑seeking children were being accommodated after Kent CC announced it would not accept all new arrivals into its care and after agreement of a confidential Kent Protocol which established a capped Reception and Safe Care Service (RSCS). The Home Secretary had commissioned hotels to accommodate UAS children pending transfer under the National Transfer Scheme (NTS).

Nature of the application and relief sought: The claims raised challenges to the lawfulness of (i) Kent CC’s refusal to accept newly arrived UAS children into care; (ii) the Kent Protocol agreed between Kent CC and the Home Office; (iii) the Home Secretary’s use of hotels to accommodate UAS children outside the Children Act 1989 framework; and (iv) the lawfulness and operation of the NTS under ss. 69–73 Immigration Act 2016. The relief sought included declarations and judicial review remedies addressing those arrangements.

Issues framed by the court: Linden J ordered preliminary issues to be tried on an expedited basis. The key issues included whether the Home Secretary could lawfully accommodate newly arriving UAS children in hotels instead of local authority care (Issue 1); the proper scope and exercise of s. 72 IA 2016 and whether the Home Secretary’s operation of the NTS was lawful (Issues 2, 3 and 8); whether the Home Secretary’s hotel accommodation frustrated the statutory purpose of the IA 2016 and the Children Act 1989 (Issue 4); whether Kent CC unlawfully failed to perform its CA 1989 duties (Issue 6); and whether the Kent Protocol was unlawful (Issue 7).

Court’s reasoning and findings:

• The court restated that duties under the Children Act 1989 (notably s. 17 assessments and the accommodation duty in s. 20) apply to children on the basis of need and are not dependent on immigration status; a child physically present in a local authority area is "within [the] area" (R (Stewart) referred to) and will ordinarily be a child in need. The duty to accommodate under s. 20 is mandatory and non‑derogable.
• Kent CC had conceded that, by declining to accept some newly arrived UAS children when it reached what it regarded as a safe limit, it was breaching its s. 20 duties. The court held that Kent CC’s conduct was unlawful. (Issue 6)
• The Kent Protocol was objectively construed and its cap on numbers was held to formalise a policy which would induce staff to breach statutory duties; that made the protocol unlawful. Because the Home Secretary agreed the protocol, the court held the unlawfulness was attributable to both Kent CC and the Home Secretary. (Issue 7)
• On ss. 69–73 IA 2016 the court explained that the statutory scheme is concerned with transfer of responsibility between a transferring local authority and a receiving authority and that arrangements made by the transferring authority are integral to a lawful transfer. The IA 2016 does not permit transfers under which the transferring authority plays no part; the administrative practice of the Home Office making transfer arrangements without involvement of the transferring authority in such cases was held unlawful. (Issue 2)
• The power in s. 72(3) IA 2016 authorises the Home Secretary to direct compliance with a transfer scheme generally, and where lawfully exercised creates an enforceable duty on local authorities; absence of a bespoke enforcement mechanism does not prevent judicial review. The court observed the Home Secretary could have used her powers to enforce compliance but whether she acted irrationally is not a preliminary issue determined at this hearing. (Issue 8)
• The court accepted that the Home Secretary has limited power, under the Crown’s common law powers or s. 3(5) CA 1989, to provide accommodation to avoid breach of Articles 2 and 3 ECHR in emergencies. However, that power is constrained: it may be used for short‑term emergency provision while strict steps are taken to regularise the child’s position and restore local authority care. The Home Secretary’s practice of accommodating UAS children in hotels became systematic and routine by December 2021 (in part following agreement of the Kent Protocol and amendments to the NTS protocol) and from that point the provision of hotel accommodation outside local authority care exceeded the lawful limits and was unlawful. (Issues 1 and 4)
• The court further held that accommodating children in hotels engages CA 1989 functions for the local authority in whose area the hotel sits (s.17 assessment and s.47 safeguarding and, given vulnerabilities, likely s.20) and that the Home Secretary should consider local authority thresholds when siting hotels, although no absolute prohibition was imposed at this preliminary stage. (Issue 5)

Procedure going forward: The judge recorded these preliminary conclusions and invited further submissions before deciding specific relief.

This first‑instance claim was the subject of a preliminary issues hearing. The court determined multiple preliminary legal issues and held: (a) Kent County Council was acting unlawfully in refusing to accept all newly arriving UAS children into care because the s. 20 Children Act 1989 duty is absolute; (b) the Kent Protocol was unlawful because its numerical cap formalised a policy inducing breach of legal duties and that unlawfulness is attributable to both Kent CC and the Home Secretary; (c) ss. 69–73 Immigration Act 2016 require transfer arrangements to involve the transferring local authority and do not permit the Home Secretary to make transfer arrangements in which the transferring authority plays no part; (d) the Home Secretary’s power at common law or under s. 3(5) CA 1989 to provide emergency accommodation is limited to true emergencies and must be used only temporarily while steps are taken to regularise the child’s care; and (e) the Home Secretary’s systematic use of hotels to accommodate UAS children exceeded the lawful limits by December 2021 and was unlawful. The court invited further submissions before deciding relief.