QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
MR DAVID MANKNELL
(instructed by THE GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Hearing dates: 29 February 2018, 1 & 2 March 2018
(written submissions: 12 and 23 October and 2 November 2018)
Crown Copyright ©
MR JUSTICE OUSELEY :
Litigation under section 67 of the Immigration Act 2016
"(1) The Secretary of State must, as soon as possible after the passing of this Act, make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.
(2) The number of children to be resettled under subsection shall be determined by the Government in consultation with local authorities."
This particular case
"To be eligible a child must meet one of the following criteria:
- be aged 12 or under, or be aged under 18 and the sibling of an eligible child aged 12 or under
- be referred directly by the French authorities, or by an organisation working on behalf of the French authorities, to the Home Office as being at high risk of sexual exploitation
- be aged under 18 and of Sudanese or Syrian nationality (these nationalities have at first instance asylum grant rate in the UK of 75% or higher, based on the asylum statistics for the period from July 2015 to June 2016)
And they must meet all of the following criteria:
- transfer to the UK must be determined to be in the best interests of the child
- the child must have arrived at the Calais camp on or before 24 October 2016
- the child must have arrived in Europe before 20 March 2016
- A child should proceed to Stage 2 if one of the following applies to them:
- they are aged 12 or under
- they are aged under 18 and are a sibling of an eligible child aged 12 or under
- they are under the age of 18 and of Syrian or Sudanese nationality
An individual can also proceed to Stage 2 if they have been referred to the Home Office by the French authorities, or an organisation working on behalf of the French authorities, on the basis that they are at high risk of sexual exploitation, provided they are under 18."
The child was to be given the benefit of the doubt in the age assessment.
"The SSHD retains her residual discretion to admit children falling outside of the criteria whether under s67 or under other routes of entry to the United Kingdom."
The criteria which inevitably excluded some children under s67 did not mean that she was rejecting their asylum claims, as that decision could only be made about an individual within the United Kingdom. The SSHD would review in due course all the material which Duncan Lewis had submitted on behalf of ZS, but Mr Cook pointed out that ZS had no entitlement to, and should not have any expectation that he would, be admitted to the UK. It was clearly not possible for Duncan Lewis to say that ZS was more vulnerable than any other refugee child in Europe. Nor could the SSHD interview all unaccompanied refugee children in Europe in order to decide which children's best interests would be best met by being brought to the UK. Hence, the policies had been formulated to offer the best chance of assessing which children it was appropriate for the UK to take. There was a finite number who could be accepted and taking one child would mean that another child, possibly also very vulnerable and anxious to come to the UK would not be admitted.
"The SSHD cannot favour those children who happen to be legally represented and must take a holistic view of the situation as she is best able to do."
Mr Cook also noted that, although Duncan Lewis said ZS was very vulnerable and had suicidal tendencies, he was in the care of the French authorities. To the extent they were failing, as seemed to be implied, adequately to care for ZS, he had recourse to the French courts.
"You have not provided sufficient reasons as to why your client would in fact be better off being in the care of the UK authorities….it would be clear from the foregoing that the SSHD does not accept that she is under any obligation to admit your client to the UK now and will not be taking any immediate steps to liaise with the French authorities over a transfer."
The letter also criticised the discussions which Duncan Lewis had been having with Brighton and Hove Council about whether they could accommodate ZS. It was for the Secretary of State to determine who would be transferred to the UK and where they would be placed. It was highly inappropriate for Duncan Lewis to have engaged in discussions with local authorities in relation to specific clients "given your limited awareness of the wider issues the SSHD is required to discuss and agree with local authorities. You should desist from doing this immediately."
"Please note that this was an exceptional course taken in your case and that of one other minor only.
In accordance with that letter, the further submissions and documents sent in on your behalf have been considered.
Those documents do not however suggest that the Secretary of State was incorrect in concluding at the time that you did not meet the criteria for inclusion in the cohort of children that was being considered for transfer under the eligibility criteria. Nor do those documents suggest that this position has changed subsequently. Indeed, it is understood that you are in agreement that you did not meet the criteria.
Rather, the documents that you have submitted, principally address your physical and mental state and vulnerability. Those are not factors which were included in the criteria. There were many more children who wished to be transferred to the United Kingdom under s.67 than could be transferred under that provision.
You may be aware that the Secretary of State has announced that the total number of children who are to be transferred to the UK pursuant to s.67 is 350. The SSHD is currently considering eligibility criteria for the number of places up to the specified number of 350 and these will be published in due course.
For those reasons, the Secretary of State's position has not changed in respect of your situation and she will not be taking any steps to transfer you to the United Kingdom now."
"Basis for further transfers under section 67
The Government will invite referrals of eligible children from France, Greece and Italy up to the specified number of 350. It will be the responsibility of France, Greece and Italy to decide which children to refer, with reference to the information set out below.
i. Who is eligible?
To be eligible for transfer to the UK under section 67:
- unaccompanied children must have been present in Europe before 20 March 2016, the date the EU-Turkey deal came into force; and
- it must be determined, following individual assessment, that it would be in the child's best interests to come to the UK, rather than to remain in their current host country, be transferred to another EU Member State, or to be reunited with family outside of Europe.
In deciding which children to refer, France, Greece and Italy will be asked to prioritise unaccompanied children who are:
- likely to be granted refugee status in the UK; and/or
- the most vulnerable, due to factors which could include but are not limited to, the UN High Commissioner for Refugee's Children at Risk individual risk factors. These risk factors include child victims of trafficking and sexual abuse; survivors of torture; survivors of violence; and, children with mental or physical disabilities.
The full list of individual risk factors can be found on page 186 of the following publication…:
In addition, the Home Office must be able to match the child with a suitable local authority placement and have successfully passed security checks ahead of the transfer.
ii. What will the process be for identifying, assessing and transferring children?
The Government is committed to working closely with France, Greece and Italy to deliver our commitment under section 67, but we can only operate in ways agreed with those Member States and within their legal frameworks. The UK will provide support to Member States, working closely with partners and non-governmental organisations to facilitate the process, including through our secondees in the Member States."
"4.1 Provided the children meet the eligibility criteria as outlined above, the French DGEF will decide which children to refer. [These are set out in the March statement].
4.2 The DGEF will identify children likely to meet the eligibility criteria via two routes:
(i) children who are already within the French child protection system but for whom transfer to the UK may be in their best interests; and
(ii) children who are on the territory of France but who are not within the French child protection system.
4.3 The DGEF will identify children eligible under route (i) by liaising with French social services in charge of unaccompanied children.
4.4 UNHCR will assist the DGEF with identification of children under route (ii). The DGEF will liaise only with UNHCR. UNHCR may choose to liaise with other organisations acting on behalf of children.
4.5 The DGEF will decide which children will be referred to the UK for consideration under section 67. A referral to the DGEF does not guarantee a referral to the UK. Section 67 does not establish a right for any child present on French territory to be transferred to the UK."
"Those who were under the legal protection of a French judge and those who may be identified and referred to the French authorities by the UNHCR. Both routes require the French authorities to decide which children they refer to the UK. It is therefore considered that responsibility for communication of the pertinent aspects of this process also vests with France, since they are required to manage relationships with third parties and referrals to the UK."
Ground 1: the nationality criterion
Ground 2: the vulnerability criterion
Ground 3: The decision of 3 March 2017
Ground 4: Procedural challenges
Ground 5 Dissemination of the DPG