Leading refugee NGO has lodged an application for permission to appeal after losing its High Court battle against the Government’s decision to relocate only 480 unaccompanied asylum-seeking children to the United Kingdom under s.67 Immigration Act 2016, the ‘Dubs Amendment’.
The Dubs amendment initially sought to bring 3,000 children to the UK: it was proposed by Lord Dubs, who as a child escaped the Nazis on the Kindertransport.
Help Refugees, an NGO working on meeting the humanitarian needs of refugees and other displaced people, represented by law firm Leigh Day, challenged the Home Secretary, Amber Rudd, over the Government’s failure to comply properly with the Dubs Amendment.
The Help Refugees challenge makes four principal points:
1. That there had been no proper consultation as required with local authorities throughout the United Kingdom to assess how many places were available to accommodate the children. The NGO’s lawyers pointed out, for example, that the consultation had closed before any consultation document had been sent to the Northern Ireland Executive or any consultation meeting was held with Northern Ireland Executive so that not a single place was recorded as offered for children by Northern Ireland. They pointed out that there had been a fundamental misunderstanding in Scotland as to what the consultation was about: local authorities in Scotland were instructed by their umbrella body, COSLA, acting as the Home Office’s intermediary, not to respond to the Home Office’s consultation so that only six places were recorded as having been offered for children in the whole of Scotland. Likewise, only six places were recorded as having been offered for children in the whole of Wales.
2. That the number of children that the Government said would be relocated (initially fixed at 350, then after places were discovered as a consequence of Help Refugees’ litigation and enquiries, 480) was arbitrary since it bore no real relationship to capacity in local authorities. The NGO pointed out that by the time the consultation, on the Home Secretary’s case, closed, no substantive response was received by 14 October 2016 in respect of:
- 100% of local authorities in Northern Ireland
- 97% of local authorities in Scotland;
- 95% of local authorities in Wales; and
- more than one third of local authorities in England.
3. That the Home Office had failed to move with the necessary speed. More than a year after the legislation was brought into force requiring the Government to act ‘as soon as possible’, only some 245 children have been relocated, all children who formerly resided in the Jungle Camp in Calais. The Government has stated that it will also relocate children from Italy and Greece but those relocations have yet to begin and there is still no timetable for relocations to start.
4. That children being considered for relocation had been denied fundamental procedural safeguards. Children were notified orally whether they were entitled to relocation or not and given no reasons for refusal; there was no review mechanism by which children (most of whom lack any legal representation let alone UK lawyers who can bring challenges in the courts here) could seek a review of decisions they believed were wrong.
The Divisional Court found against Help Refugees on all four points.
The claim had already achieved significant earlier victories.
First, at the time that the claim was issued, the Home Office was arguing (in Parliament and in its published policy at the time) that it could meet its duties under the Dubs Amendment by relocating children to the UK that it was already required to relocate under EU law (‘the Dublin III Regulation’) for family reunion. Help Refugees and its lawyers argued that the duty owed under the Dubs Amendment was additional to the Government’s pre-existing duties under EU law. Help Refugees obtained a declaration from the High Court confirming this in December 2016.
Second, the Government initially fixed the number of children to be relocated at 350. It was as a consequence of Help Refugees’ investigations in this litigation that the Home Office eventually acknowledged that places offered by the entire English South West had been overlooked and increased the number of places to 480.
However, as to the consultation and the specification of the number, the Divisional Court said:
‘There is nothing in this which can show that the consultation process or the consideration of the results was unlawful’.
As to the question of speed, the Court said:
‘We are not prepared to hold that arrangements have not been made as soon as possible for this is not something within the control of the UK Government’.
As to procedural safeguards, the Court accepted the Home Office’s argument that ‘the process of deciding who should be transferred was not one to which normal considerations of procedural fairness could realistically apply’.
Reacting to the judgment Rosa Curling from the human rights team at Leigh Day who represents Help Refugees, said:
"This litigation has already brought about very significant advances. 130 extra places for vulnerable children were added as the direct result of this litigation. The Government was also forced to accept that the children to be transferred under the Dubs Amendment were additional to the children the Government already had to transfer under EU law. Our clients continue to believe that the way in which the Dubs amendment has been implemented is seriously defective. We have sought permission to appeal."
Josie Naughton, founder and CEO of Help Refugees Ltd said:
“We are bitterly disappointed by this result but also very proud of what our litigation has already achieved. At the time our litigation was issued, not a single child had been transferred to the UK under the Dubs Amendment. Transfers began under the pressure of this litigation and under the pressure from campaigners and parliamentarians. We’ve unearthed 130 extra places, which the government eventually admitted it had overlooked. These places for children are needed now more than ever. There are young unaccompanied children sleeping rough in Europe completely unprepared for the coming Winter. We intend to appeal."