Kent County Council, R (on the application of) v Secretary of State for the Home Department

Judicial review is generally concerned with present and future legality, although past unlawfulness may be relevant to assessing what remedial action is now required. The Padfield principle constrains the purpose for which a statutory power is exercised; it does not require a decision-maker to achieve the statutory purpose whenever the power has been exercised in an ineffective manner.

Process rationality requires a decision-maker to take account of matters which, in the circumstances, are legally relevant. A public authority partly responsible for an unlawful situation cannot lawfully design a remedial scheme without considering that responsibility and the need to remedy the situation. The court need not prescribe the precise enforcement mechanism, but a rational plan may be required to eliminate a continuing unlawful practice.

The claim concerned the design and operation of the National Transfer Scheme for unaccompanied asylum-seeking children, the use of hotels, and the Home Secretary’s response to delays in transferring children between local authorities.

In an earlier judgment, the court held that Kent County Council and the Home Secretary had acted unlawfully, including through the Kent Protocol and the systematic use of hotels as a substitute for local-authority care. The present stage concerned five further grounds challenging the Home Secretary’s conduct, including statutory-purpose, compliance, children’s welfare, frustration of local-authority duties and irrationality grounds.

The central questions were whether the Home Secretary’s decision-making was unlawful during the period from December 2021 to 27 July 2023, and what the law required of the National Transfer Scheme thereafter.

1. Outcome. The first four grounds were dismissed. The claim succeeded on the fifth ground to the extent that the Home Secretary’s decision-making concerning the National Transfer Scheme was unlawful between December 2021 and 27 July 2023.
2. Forward-looking focus. Judicial review remedies are generally directed to present and future conduct. Past conduct may nevertheless be considered where it is necessary to determine the legality of current conduct or the remedial steps required.
3. Statutory purpose. The Padfield principle requires statutory powers to be exercised to promote, rather than frustrate, the policy and objects of the empowering statute. Where the power has been exercised but the decision-maker has failed to achieve the statutory purpose, the principle does not ordinarily apply unless the decision-making involved an intention to avoid the statutory purpose or a deliberate decision to delay. The evidence showed attempts to reduce and distribute the burden, rather than an intention to avoid that purpose.
4. Welfare and transfer duties. The duty under Borders, Citizenship and Immigration Act 2009, section 55, required arrangements ensuring that immigration functions were discharged having regard to the need to safeguard and promote children’s welfare. It was not breached merely because the functions might have been exercised more effectively. The National Transfer Scheme was also not inconsistent with its terms, and the Home Secretary had not shown to have frustrated Kent County Council’s duties under Children Act 1989, section 20.
5. Process irrationality. The Home Secretary was not legally obliged to bring or threaten judicial review proceedings against recalcitrant local authorities. That was a matter of ministerial judgment. However, she was required to take account of two central facts: her partial responsibility for Kent County Council’s unlawful failure to accommodate every child, and the systematic and routine use of hotels as an unlawful substitute for local-authority care. The failure to consider those matters, and the absence of a proper plan to eliminate hotel use, rendered the decision-making unlawful between December 2021 and 27 July 2023.
6. Future plan. After final arrangements with Kent County Council are concluded, and if the relevant provisions of the Illegal Migration Act 2023 are not commenced, rationality will require a plan capable of permanently eliminating hotel accommodation. The plan must address likely arrivals, required transfer speed and volume, and arrangements for ensuring timely transfers.

The judgment itself records earlier stages of the same judicial review litigation:

• High Court (Administrative Court) — an earlier judgment on preliminary issues was handed down on 27 July 2023: [2023] EWHC 1953 (Admin).
• High Court (Administrative Court) — a second relief judgment was handed down on 1 September 2023: [2023] EWHC 2199 (Admin).
• High Court (Administrative Court) — the present judgment determined the further grounds of challenge.