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

Local authorities owe the duties under the Children Act 1989 to all children in need within their area, irrespective of immigration status or available resources. The duty to accommodate and look after an unaccompanied asylum-seeking child is absolute and cannot be capped or derogated from.

The statutory transfer scheme permits transfer of responsibility only through arrangements involving the first or transferring local authority. The Secretary of State cannot arrange such transfers solely with the receiving authority.

The Secretary of State has a limited emergency power to provide accommodation, but cannot use it systematically or routinely as a substitute for local-authority care. Hotel accommodation exceeding that limit is unlawful.

Three linked judicial review claims concerned the accommodation and transfer of unaccompanied asylum-seeking children arriving in Kent. Kent County Council had adopted a cap on the number of such children it would accept into care under a protocol agreed with the Home Secretary. The Home Secretary consequently commissioned hotels to accommodate children outside the local-authority care system pending transfer under the National Transfer Scheme.

The court determined preliminary issues concerning Kent’s statutory duties, the legality of the Kent Protocol, the meaning and operation of sections 69 to 73 of the Immigration Act 2016, the Secretary of State’s power to accommodate children, and the relevance of the National Transfer Scheme threshold.

1. Kent’s statutory duties. Newly arrived unaccompanied asylum-seeking children are necessarily children in need within the meaning of section 17 of the Children Act 1989. They are within the area of Kent by being physically present there. The section 20 duty to accommodate, followed by the duties owed to looked-after children, is absolute, non-derogable and unaffected by resource constraints. Kent was therefore acting unlawfully by refusing to accommodate and look after children once its cap was reached.
2. Kent Protocol. The protocol was unlawful because its cap necessarily contemplated that Kent would refuse children to whom it owed a statutory duty. Objectively construed, it formalised a policy capable of inducing staff to breach that duty. The unlawfulness was attributable to both Kent and the Home Secretary, as parties to the agreement.
3. Transfers under the 2016 Act. Sections 69 to 73 concern transfer of responsibility, not merely physical transfer. Prior exercise of functions by the transferring authority is not a legal precondition, but arrangements involving that authority are essential. The Secretary of State could not lawfully arrange transfers for children outside local-authority care solely with the receiving authority.
4. Direction power. Section 72(3) permits a general direction to comply with the National Transfer Scheme. A lawful direction creates an enforceable duty, and judicial review proceedings may be brought to enforce it, although the legality of the Secretary of State’s failure to do so was not determined.
5. Hotel accommodation. The Home Secretary had power at common law or under section 3(5) of the Children Act 1989 to provide food, shelter and support in a genuine emergency, including to avoid breaches of Articles 2 and 3 ECHR. That power was strictly limited. It could be used only for short periods while stringent efforts were made to restore local-authority care. From December 2021 at the latest, the hotel practice had become systematic and routine and was therefore unlawful.
6. Thresholds and timescales. The Home Secretary had to consider the impact of hotel accommodation on the local authority in whose area the hotel was situated, but there was no hard-edged duty preventing hotels being used in an area exceeding the 0.1% threshold. Any breach of transfer timescales was primarily a breach by local authorities, not the Home Secretary.

Further submissions were invited on relief.

The judgment determined expedited preliminary issues in three first-instance judicial review claims. The remaining issues, including disputed factual matters and possible relief, were left for further directions.