Supreme Court Rules Government Policy On Child Refugees Is Partly Unlawful

The legal challenge, brought by Help Refugees, has lasted two years.
A newly displaced Syrian child walks near a refugee camp
A newly displaced Syrian child walks near a refugee camp
Khalil Ashawi / Reuters

A charity has won a partial legal victory against the government’s decision to cap the number of child refugees allowed into the UK at 480.

The charity Help Refugees brought legal action over the Home Office’s calculation that less than 500 unaccompanied children should be accepted into the country, under an amendment by the Labour peer Lord Alf Dubs, who was himself a child refugee.

Senior judges ruled that child asylum seekers were given “patently inadequate” reasons for being refused entry to the UK, meaning all child refugees will now be entitled to a detailed explanation for the rejection of their case.

However, the number of UK places for child refugees will remain capped at 480 after the charity failed to convince the court that the government’s consultation with local authorities over how many refugees could be accepted was defective.

The Court of Appeal’s decision should result in more child refugees, described by the charity as “amongst the most vulnerable on the planet right now”, being able to launch appeals.

A Syrian boy at the Port of Piraeus in Greece where thousands of migrants and refugees were set to arrive from Lesbos in September
A Syrian boy at the Port of Piraeus in Greece where thousands of migrants and refugees were set to arrive from Lesbos in September

Help Refugees chief executive and co-founder Josie Naughton said: “Today’s judgment rightly forces the government to recognise that every child considered for transfer under the Dubs scheme and refused must be given reasons.

“For two years, vulnerable children have been rejected without any real explanation. Children who received these decisions are now missing; for them it is too late. These spaces, that still remain unfilled, could have saved their lives.

“Instead, children have been left in mental anguish, at risk of exploitation and abuse.”

The judgement is the result of a two-year-long legal action taken by Help Refugees to ensure children considered for transfer under the Dubs scheme are treated fairly.

Help Refugees argued that lone child refugees in Calais being considered for relocation had been denied fundamental procedural safeguards. Children were given no written decisions and no detailed reasons for the grounds of their refusal, the charity said.

As a result, there was no review mechanism by which children could challenge decisions they believed were wrong and without adequate reasons for refusals, accessing the courts of England and Wales was made effectively impossible, Help Refugees argued.

At an earlier stage in court proceedings, the Home Office argued that it could not give each child reasons for their refusal because this would take too long. But evidence emerged in the Court of Appeal that the Home Office had, in fact, internally decided not to convey fuller reasons for fear that children refused would bring legal challenges.

Help Refugees also argued the government’s consultation with local authorities concerning the number of spaces available for children was wholly inadequate.

But the Court of Appeal dismissed this part of the claim, upholding the lawfulness of the consultation. This means the number of children eligible for the Dubs scheme will remain capped at 480.

Following the ruling, the charity accused the government of a “lack of political will” to act over child asylum seekers.

Jess Mills, of Help Refugees, speaking on the BBC’s Victoria Derbyshire programme, said the UK has taken just over 200 child refugees and there are still nearly 200 places that have not been filled.

“A big part of the problem here is lack of political will to see this commitment through and it’s something that we have been working on tirelessly for the last two and a half years to try and hold the government to their commitment,” she said.

She argued there was “a real willingness from local authorities” to accept more child refugees and “capacity that hasn’t been fulfilled by the government”.

“At this point where we have lost on consultation, we just ask that the government honour the commitment they have made to relocate and fill those places as a matter of urgency,” she said. “Because we are talking about children who are among the most vulnerable people on the planet right now.

“Children who are as young as eight or nine-years-old, some of whom are facing their fourth winter in the crisis alone. So we just ask in light of this that they speed up the process for those children.”

Lord Dubs, who put forward an amendment on allowing unaccompanied child refugees into the UK
Lord Dubs, who put forward an amendment on allowing unaccompanied child refugees into the UK
PA Wire/PA Images

Lord Dubs praised the ruling, saying every child refugee who is turned away by the government deserves to know why.

“For two years, we have fought tooth and nail for the rights of these vulnerable children,” he said. “Today, I’m relieved to say that it was worth it.

“Every unaccompanied child we have turned away deserves an explanation and a chance to appeal the decision, and we’re delighted the courts have agreed with us on that.

“The decision gives some hope to thousands of vulnerable child refugees in Europe.”

The Home Office welcomed the Court of Appeal’s ruling saying it had confirmed the process used to establish the 480 figure for the cap was legally sound.

A spokeswoman said: “This judgment confirms that the government’s consultation with local authorities, in which they said they could provide 480 places for eligible children from Europe, was lawful.

“We continue to accept further referrals and transfers are ongoing. We will continue to work closely with participating states, local authorities and other partners to relocate eligible children here quickly and safely.”

The ruling comes after the charity Help Refugees last year sought to force then Home Secretary Amber Rudd to abandon the cap and reopen what it said was a “defective” consultation.

But the campaigners lost their high court challenge in November when judges said they were “not persuaded” by the case, before being granted an appeal in January.

The legal challenge has lasted over two years. During that time, the government has failed to fill nearly half the places it had promised to provide to unaccompanied refugee minors living in camps, or homeless in France, Italy and Greece, Help Refugees has claimed.

The charity Help Refugees sought to force then home secretary Amber Rudd to abandon the cap on child refugees
The charity Help Refugees sought to force then home secretary Amber Rudd to abandon the cap on child refugees
PA Wire/PA Images

The Dubs amendment, passed in May 2016, required the government to act “as soon as possible” to relocate and support unaccompanied refugee children. It was named after Lord Dubs, who escaped the Nazis as a child on the Kindertransport.

He proposed an amendment to immigration legislation in 2016, which would have required the government to bring 3,000 unaccompanied refugee children to the UK. That figure was later dropped from the amendment.

In order to determine the number of children each council had the capacity to help, the government was required to consult with local authorities.

Help Refugees said the process the Home Office took to carry out the consultation was “seriously defective” after it emerged many local authorities were not properly consulted and had the capacity to take more children.

After the disputed consultation, the government announced that the number of children to be relocated under the Dubs scheme was to be fixed at 350.

The government later accepted that 130 places offered by one English region had been “missed” and the number was revised to 480 in April 2017.

The Dubs Amendment was made to the 2016 Immigration Act and, from May last year, required the Home Secretary to make arrangements to relocate “a specified number” of vulnerable refugee children from Europe based on feedback from local authorities.

Lord Justice McCombe, Lady Justice King and Lord Justice Hickinbottom made the ruling at the Royal Courts of Justice in the Strand on Wednesday.

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