Room for Refugee Children? The Public Law Duty to Consult

Andrea Chong

Child refugees stranded in Calais will have to wait a little longer. Last week, the High Court handed down its judgment in Help Refugees Limited v The Secretary of State for the Home Department [2017] EWHC 2727 (Admin). This was an application for judicial review of the Home Secretary’s decision to close the Dubs Scheme after only accepting 480 child refugees from Europe.1 The Dubs Scheme, as it is often called, was proposed by Lord Dubs last year in response to the refugee crisis. The government accepted and gave the plan force in s 67 of the Immigration Act 2016. s 67 requires the Home Secretary to make arrangements to relocate “a specified number” of vulnerable refugee children from Europe, based on feedback from local authorities.

This piece first examines the court’s analysis of the claim brought by Help Refugees Limited and asks whether the High Court adequately assessed the issue for fairness in deciding that there had been a proper consultation before deciding on the number of refugee children to let in. It then poses a question of broader public interest: to what extent is English law effective in providing aid to those who suffer and seek to flee from devastating events abroad?

The Facts

This judicial review challenge was brought by Help Refugees Limited, a charity concerned with meeting the humanitarian needs of refugees and other displaced people. It concerned certain parts of s 67 of the Immigration Act 2016. s 67 provides as follows:

“Unaccompanied Refugee Children: Relocation and Support
(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 (1) shall be determined by the Government in consultation with local authorities. …”

The claim was that the consultation process by which the Home Secretary calculated only 350 (later raised to 480) refugees should be accepted was “fundamentally flawed”. The applicants therefore sought a court order to reopen the consultation process and remove the cap on the number of refugees accepted, thus allowing more refugee children into the UK.

The Issues

The applicant argued Government’s decision on the number of refugee children to let into the UK was flawed. Several reasons were advanced in court:

  1. There was no proper consultation with the local authorities in the UK.2
  2. The number of children that were to be accepted into the UK was an arbitrary number (given that it was initially set at 350 and, under pressure brought by this litigation and additional enquiries, raised to 480).
  3. The Home Office did not act “as soon as possible” to relocate all the children.
  4. Fundamental procedural safeguards, such as the need to provide a written and reasoned decision in rejecting an application, were not in place.

This piece focuses on the first issue, of whether there was proper consultation. It will examine if the High Court considered the applicant’s case sufficiently.

The Consultation: How many refugee children could the various local authorities take in?

The applicant argued that the government’s consultation had to be conducted according to a heightened standard of fairness and scrutiny, since the interests concerned were that of vulnerable children at serious risk of harm, hardship or serious abuse.3 It was submitted that the process of consultation was so badly flawed that there had been no fair consultation for a number of reasons.

These reasons included the fact that the consultation was closed before the consultation document was even sent out to certain parts of the UK, and that there was a misunderstanding as to the purpose of the consultation. As a result of these factors, it was argued that the number of places for refugee children was lower than it would have been had the consultation been done properly.

The question here is then what ‘consultation’ within the meaning of s 67 was. s 67 itself offers no elaboration on what consultation entails, other than prescribing that local authorities should be consulted. To the court, the standard for consultation did not appear to be very high, according to the language of s 67. The Sedley criteria for fairness in a consultation, as propounded by Mr Stephen Sedley QC in Gunning,4 were mentioned by the High Court in its judgment. However, save for one subsequent mention in [59], little more was said about how the criteria was either conformed to or ignored in Help Refugees.

Next, the defendant rightly highlighted the comments of Lord Reed JSC in Moseley5 at [36] that emphasised that the statutory context comes before the common law duty to act fairly: “This concerned with a statutory duty of consultation. Such duties vary greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out.”

In response, the Court concluded at [42] that “the purpose of the exercise was to enable the defendant to reach a decision about a specified number for the purposes of s.67”. It went on to consider the content of the duty to consult in light of the applicant’s submissions that there had been an unfair consultation. It considered whether it was made clear there was a consultation [43], what the subject matter of the consultation was [47], and whether the consultees knew how their responses would be used [50].

Contextualising fairness: A Criticism

The public law duty to consult is an aspect of the principle that public authorities should act fairly in the exercise of their functions. The issue in Help Refugees was that the statutory duty to consult was not followed by any elaboration of the procedure for consultation. Thus, the court had to examine what a fair consultation demanded in the in both the factual circumstances and having account of the statutory language. Both Gunning and Moseley set out certain principles for consultation and emphasised that consultation should remain proportionate to the purpose and objectives of the exercise. While the purpose of s 67 is undoubtedly to simply determine the number of child refugees to be allowed into the UK, the gravity of the subject matter at stake arguably warrants a stricter expectation on the quality and accuracy of the consultation process.

Therefore, as valid a methodology as the court might have adopted in addressing the applicant’s submissions and forming an approach to evaluate whether the consultation was fair, the decision in Help Refugees does miss the point slightly. It is perhaps a broader notion of a lack of overall fairness in the consultation process that the applicant alludes to in making such deductions from the evidence. The court, in failing to demonstrate its appreciation of this broader picture of fairness and the consequent demand for a higher standard of ‘consultation’, did not provide a satisfactory answer on whether there was indeed a proper consultation meeting the relevant standard of fairness.  

This is because the court equivocated on each individual feature of the consultation process.  However, taken together, these equivocations arguably amount to a dissatisfactory overall picture of the consultation process.  The examples of seemingly minute flaws in the consultation process are numerous. the Home Office purported to consult Scottish local authorities through an intermediary but the information provided was so unclear that local authorities were told not to respond until after the consultation period had ended. Local authorities in Wales were given the incorrect impression that there was an ongoing process to offer places to refugee children even past the end date of the consultation period, and places offered by Welsh local authorities after the end date were not recorded.

The problem was thus a simple one: various misunderstandings or inadequate communications to local authorities resulted in localised inaccuracies as to how many places could be offered for the refugee children. This resulted in an overall defective picture of the UK’s capacity to take in children.

Conclusion: Hope on Appeal

It is not argued that the court was entirely wrong in acknowledging the relatively low bar for an s 67 consultation. However, greater weight should have been placed on individual examples of how the consultation process was defective because of the impact of the defects on the overall assessment. While it is unfortunate that the number of refugee children that can be taken into the UK continues to be capped, the court’s reasoning on the purpose and the application of s 67 was measured and followed closely with earlier and binding authority. Nonetheless, this does not mean that an appeal would be futile in changing the practical outcome and clarifying Moseley. A case remains for a reemphasis on the flaws of the consultation process and an argument that our understanding of ‘consultation’ under s 67 demands a much higher threshold for fairness than was constructed by the High Court.

In the meantime, child refugees stranded in Calais can only await the outcome of an appeal. Nevertheless, it is certainly true that they may not have time to wait for the law to see their plight, even though this case was heard in May 2017, already at an earlier date than expected, with the judgment handed down only in early November 2017. While this certainly would make a difference in the established law, it does beg the question of whether judicial review is an effective recourse for refugee children who do not have the luxury of time.

  1. The Guardian, High court to hear legal challenge over end of Dubs scheme in May, 10 February 2017,
  2. Help Refugees Limited v The Secretary of State for the Home Department [2017] EWHC 2727 (Admin), [34].
  3. Ibid, [33].
  4. R v Brent LBC ex parte Gunning [1985] 84 LGR 168.
  5. R (Moseley) v Haringey LBC [2014] 1 WLR 3947. 

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