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

The statutory test of whether compliance with a mandatory transfer scheme will unduly prejudice a local authority’s functions confers an evaluative discretion on the Secretary of State. A policy may lawfully treat ordinary pressures, including staffing, finance, placement capacity and service ratings, as insufficient for exemption at the stage of directing participation. Exemption may be confined to circumstances amounting to a crisis or complete breakdown of children’s services. The direction stage is distinct from the later allocation of children, which may raise different issues. Applying that approach did not unlawfully fetter the discretion or disregard the authority’s representations.

Medway Council sought judicial review of a direction issued under section 72(3) of the Immigration Act 2016, requiring it to participate in the National Transfer Scheme for unaccompanied asylum-seeking children. The Council relied on pressures affecting its children’s services, including an adverse inspection history, limited placement capacity and existing demands. It argued that the Secretary of State had applied a more onerous crisis threshold than the statutory test, excluded relevant considerations and failed to consider its representations lawfully. The central issue was whether the direction complied with section 72(4) and whether the decision-making policy unlawfully fettered discretion.

1. Claim dismissed. The court held that section 72(4) of the Immigration Act 2016 was properly applied.
2. The phrase “unduly prejudice” involves an evaluative discretion. It recognises that some prejudice to a receiving authority’s other functions may be acceptable or justifiable in the statutory context. The court explained this by analogy with the interpretation of “unduly harsh” in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53; [2018] 1 WLR 5273.
3. The scheme operates in two stages. First, the Secretary of State decides whether to direct an authority to participate. Secondly, allocations of specified numbers of children are made. A challenge to a particular allocation may raise different questions from a challenge to participation itself.
4. It was lawful to adopt a policy that the burden of caring for unaccompanied asylum-seeking children should in principle be shared widely, and that exemption at the participation stage should generally be limited to a crisis amounting to a complete breakdown of children’s services. The policy did not unlawfully fetter discretion. Ordinary operational, financial and placement difficulties could properly be treated as insufficient to justify exemption, particularly because considering them at the first stage would undermine the scheme’s purpose. The court considered Re Findlay [1985] AC 318 in addressing the fettering argument.
5. Medway’s representations were individually considered. The decision-maker was entitled to conclude that they did not establish undue prejudice sufficient to justify exemption. The remaining ground, alleging failure to take relevant matters into account, was parasitic on the rejected grounds and also failed.