The Home Office’s “routine” housing of unaccompanied child asylum seekers in hotels is unlawful, the high court has ruled.
The charity Every Child Protected Against Trafficking (Ecpat) brought legal action against the government department over the practice of housing unaccompanied children in hotels, claiming the arrangements were not fit for purpose.
In a ruling on Thursday, Mr Justice Chamberlain said the routine use of hotels for unaccompanied asylum-seeking children had become unlawful, as the power to place the children in hotels was only intended to “be used on very short periods in true emergency situations”.
He told the court in London: “It cannot be used systematically or routinely in circumstances where it is intended, or functions in practice, as a substitute for local authority care.”
The judge continued: “From December 2021 at the latest, the practice of accommodating children in hotels, outside local authority care, was both systematic and routine and had become an established part of the procedure for dealing with unaccompanied asylum-seeking children.
“From that point on, the home secretary’s provision of hotel accommodation for unaccompanied asylum-seeking children exceeded the proper limits of her powers and was unlawful.”
As of 17 July, there were 208 child asylum seekers being accommodated in hotels. The children-only hotels were located in Kent, East Sussex, London, Oxfordshire and Warwickshire.
Since 3 April, 447 children have gone missing from asylum hotels, mostly within 72 hours of arriving in the UK. The hearing was told that 154 children were still missing, mostly 16- and 17-year-olds, but also 11 children aged 15, a 14-year-old and a 12-year-old.
Ecpat’s case was heard alongside similar claims brought by Brighton and Hove city council and Kent county council against the department.
The Home Office and the Department for Education had opposed the legal challenges and said the hotel use was lawful but was “deployed effectively as a ‘safety net’ and as a matter of necessity”.
In a 55-page judgment, Chamberlain said: “Ensuring the safety and welfare of children with no adult to look after them is among the most fundamental duties of any civilised state.”
As well as finding the Home Office’s use of hotels for child asylum seekers was unlawful, the judge said Kent council was acting unlawfully in failing to accommodate and look after unaccompanied asylum-seeking children.
He said: “In ceasing to accept responsibility for some newly arriving unaccompanied asylum-seeking children, while continuing to accept other children into its care, Kent county council chose to treat some unaccompanied asylum-seeking children differently from and less favourably than other children, because of their status as asylum seekers.”
The judgment reaffirmed the legal duties owed by local authorities to all children who require looking after, irrespective of their immigration status.
During the hearing it was revealed that in September 2021 the Home Office and Kent county council set up an unpublished agreement known as the Kent protocol, which agreed a cap on the numbers of newly arrived lone asylum-seeker children the council would take. Kent has accepted it breached its statutory duties towards this group of children but said it found itself in an impossible situation.
The judge found the policy to be unlawful both on the part of the council and the home secretary.
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The judge also ruled that the national transfer scheme, which allows children to be placed in local authority care through a rota system, was enforceable by the home secretary by judicial review if individual local authorities were not taking their fair share of children.
Patricia Durr, the chief executive of Ecpat UK, said: “This judgment powerfully reaffirms the primacy of the Children Act 1989 and our child welfare statutory framework, which does not allow for children to treated differently because of their immigration status.
“It remains a child protection scandal that so many of the most vulnerable children remain missing, at risk of significant harm, as a consequence of these unlawful actions by the secretary of state and Kent county council.”
Roger Gough, the leader of Kent county council, said: “We acknowledge and accept the ruling of the judge handed down today. Indeed, since arrivals of unaccompanied asylum-seeking children began to escalate sharply in 2015, we have emphasised to the Home Office, our partners and publicly that the national transfer scheme must be operated in a mandatory and effective way before Kent can ensure compliance with its statutory duties. That scheme needs to work properly in order for Kent to be able to support all new arrivals from Dover whilst at the same time make sure that those already in Kent’s care are safe.”
Bella Sankey, the leader of Brighton and Hove city council, said she welcomed the ruling. “Sickeningly for us, 50 children are still missing from the hotel used in Brighton and Hove. Suella Braverman must now urgently enforce this system so that the hotels can be emptied and all local authorities can play their part in safeguarding children.”
The Home Office said: “The high court has upheld that local authorities have a statutory duty to care for unaccompanied asylum-seeking children. We have always maintained that the best place for unaccompanied children to be accommodated is within a local authority.
“However, due to the unsustainable rise in illegal Channel crossings, the government has had no option but to accommodate young people in hotels on a temporary basis while placements with local authorities are urgently found.
“In light of today’s judgment, we will continue to work with Kent county council and local authorities across the UK to ensure suitable local authority placements are provided for unaccompanied children, in line with their duties.”