Starting on 20 June 2017, the High Court will hear Help Refugees’ challenge to the legality of the Government’s implementation and closure of the Dubs Scheme.
Section 67 Immigration Act 2016 (‘the Dubs Amendment’) requires the Government to make arrangements ‘as soon as possible’ after the passing of the Immigration Act 2016 to relocate and support unaccompanied refugee children from Europe.
Help Refugees’ Campaign Demand
Help Refugees is calling on the Government to reopen the Dubs Scheme, do its job properly and offer refuge to the vulnerable children it has committed to supporting.
The issues in the Help Refugees legal challenge
There are three sets of issues in this litigation.
1. First, Help Refugees is challenging the Government’s decision to close the Dubs Scheme. In particular, the Help Refugees legal team argues that the Government’s consultation with local authorities by which it reached the low number of 350 children to be relocated (later raised to 480) was seriously defective. Help Refugees will present a substantial amount of evidence to the High Court, including evidence of hundreds of places for children that it says were unlawfully omitted by the Government from the calculation of the nationwide capacity.
2. Second, Help Refugees is challenging the Government’s failure to implement its expressly urgent statutory duty quickly.
- Although section 67 came into force on 31 May 2016, the Government waited until 8 February 2017 to announce the ‘specified number’ of children it intended to relocate (initially 350);
- Only approximately 200 children have so far been relocated to the UK under the Dubs Amendment, all from the Calais Camp; and
- The Government has yet to indicate when the next round of relocations, from Greece and Italy will begin;
- Yet the Government is maintaining a policy (first adopted in July 2016) that children will only qualify for relocation under Dubs if the children were present in Europe before 20 March 2016.
- In particular, the Help Refugees legal team is arguing that having delayed so long in implementing the Dubs Amendment, it is unlawful for the Government to maintain its policy of a 20 March 2016 cut-off point for refugee children’s eligibility for relocation under Dubs.
3. Help Refugees is also challenging the lack of fundamental procedural safeguards for unaccompanied refugee children who receive adverse decisions about their eligibility for relocation. The Government has refused to give written reasons or any written decisions to children who are refused relocation, nor any formal mechanism by which children can challenge refusals which they believe to be wrong. The unaccompanied children formerly at the Jungle Camp in Calais were told orally, often in groups, and without explanation, that they had been refused relocation to the UK.
Background: the child refugee crisis in Europe
There are currently 95,000 unaccompanied refugee children living in Europe, many of whom experienced egregious abuse, including trafficking, en route or in their countries of origin.
Human Rights Watch has reported that, in Greece, “children face unsanitary and degrading conditions and abusive treatment, including detention with adults and ill-treatment by police”
The Harvard FXB Centre for Health and Human Rights has reported, “cases of sexual assault of children have … been documented in many camps around Greece; in addition, many international actors and NGOs point to a rise in allegations of sexual assault against children.”
The UK’s Independent Anti-Slavery Commissioner has explained that the Dubs Amendment “opened up an important and safe legal route to refuge in the UK for unaccompanied refugee children.”
The litigation so far
- When the Help Refugees litigation was initiated on 18 October 2016 not a single child had been relocated to the UK under the Dubs Amendment.
- At that time, those few children relocated to the UK from Europe were in fact being relocated under a separate, pre-existing EU law duty (the Dublin III Regulation) to reunite unaccompanied children with their family members. The Government argued that it could comply with the Dubs Amendment by carrying out its pre-existing duties under EU law to reunite unaccompanied children with their family members. Help Refugees pointed out that the Government’s interpretation was wrong.
- On 16 December 2016, the High Court granted Help Refugees a declaration confirming the NGO’s interpretation of the Dubs Amendment: the Dubs Amendment is a new duty owed to those unaccompanied children who are not already entitled to relocation under EU law.
- On 8 February 2017, the Government announced that 350 children in total would be allowed to relocate to the UK under the Dubs scheme. Peers from the House of Commons lamented this woefully small number, describing the decision as “shameful”. Help Refugees challenged the consultation on which the 350 number was based. Among many points raised by the Help Refugees legal team was the surprising absence of any offers from the entire English South-West. The Home Office was eventually forced to concede, in this litigation, that it had ‘missed’ 130 places offered by local authorities in the English South-West. The number of children to be relocated under the Dubs Scheme was therefore increased by 37% on 26 April 2017, to 480.
The objective of Help Refugees’ challenge to the Home Office’s consultation and specification of a number
Help Refugees are asking the Court to quash the Secretary of State’s decision to limit the scheme to 480 and to order the Secretary of State to consult local authorities again.
Help Refugees are confident that if the consultation process is carried out properly, the number of children who can come to the UK will increase. Multiple councils have come forward to offer spaces for child refugees left destitute or living in camps across Europe. Further details are given below.
Arguments and evidence before the Court concerning the Dubs consultation
The Help Refugees legal team is arguing that Home Office’s consultation fell far short of minimum requirements of fairness. They say that this was a particularly serious failure in the context of decisions with potentially life-changing consequences for very vulnerable children.
The arguments that Help Refugees will present at Court include the following:
- The Home Office failed to provide the local authorities it was purportedly consulting with critical information. Some local authorities did not even know they were being consulted, let alone consulted about the specified number of children to be relocated under the Dubs Amendment. Nor did local authorities know that there was a 14 October 2016 cut-off date for local authority responses and that ‘late’ responses would not be counted towards the Dubs ‘specified number’. The Help Refugees legal team argues that this was a ‘consultation by stealth’.
- The Home Office failed to conduct a UK wide consultation to assess local authority capacity. For example:
- The Home Office initiated but abandoned a consultation in Northern Ireland;
- In Scotland, the Home Office purported to consult through an intermediary but was so unclear in the information it gave that the intermediary told all Scottish local authorities not to respond until after the consultation period had ended;
- In Wales, local authorities were given the misleading impression that there was an ongoing process to elicit offers of places under Dubs well into November 2016 even though the Government had stopped adding to the Dubs number on 14 October 2016.
- The Home Office’s assessment of nationwide capacity was consequently based on a consultation in which
- No places were recorded by the Home Office as being available for Dubs children in all of Northern Ireland;
- Only six places were recorded by the Home Office as being available for Dubs children in all of Scotland (all six places from just one local authority in Scotland). In fact, 91% of the places offered by Scottish local authorities, sent soon after the consultation period ended, were not counted towards the specified number under 67.
- Only six places were recorded by the Home Office as being available for Dubs children in all of Wales (again, all six from just one local authority in Wales). In fact at least 86% of the places offered by Welsh local authorities, sent soon after the consultation period ended, were not counted towards the specified
- In England, at least 45% of places offered were discounted by the Home Office, because those offers did not meet the Home Office’s (unpublished) criteria for the format in which responses should be provided to its purported consultation or because the offers came after the Home Office’s (unpublished) cut-off date for responses.
- This led to obvious and serious defects in the Home Office’s assessment of nationwide capacity:
- Scotland and Wales, which have a joint population of approximately 8.5 million people, were recorded by the Home Office as having offered to resettle just 12 refugee children between them (which equates to around one child per 700,000 inhabitants).
- England, which has a population of more than 54 million, was treated as having pledged to resettle just 385 children (which equates to around one child per 140,000 inhabitants).
Some Quotes from the Help Refugees Evidence
- On 6 March 2017, the Home Affairs Select Committee observed that the ‘specified number’ (then 350) was “far lower than many people had anticipated” and meant that the transfer of children under Dubs would end “much earlier than many people had expected”.
- The evidence presented to the Committee “cast some doubt on how thorough the consultation undertaken by the Home Office to establish the capacity of local authorities to take more migrant children had been” undertaken.
- The Northern Ireland Commissioner for Children and Young People, Koulla Yiasouma, explains, “nothing…indicated that there was a lack of any capacity or willingness in Northern Ireland to accept further UASC under the Dubs scheme.” On the contrary “Northern Ireland is not at full capacity and… it is a realistic possibility that Northern Ireland would have accepted some UASC under s. 67.”
- The Home Office actively discouraged Scottish local authorities from replying to it 8 September 2016 letter. The Leader of Renfrewshire Council explained: “Officers were advised by the Home Office that a response to this letter [i.e. the 8 September letter] was not required, as a Scotland-specific letter was due to be issued in its place. This did not materialise…”
- The Children’s Commissioner for Wales, Professor Sally Holland, explained that Welsh local authorities felt impeded in their ability to offer places during the “consultation” period (the period before 14 October 2016) due to a lack of clarity about what was being asked of them, the legal basis for transfer and the timing of any arrivals.
- The Welsh Cabinet Secretary said that, “one significant disappointment was the lack of adequate and timely consultations from the UK Government around the various children’s schemes”
- West Midlands’ Strategic Migration Partnership (a Home Office funded body) commented that, “Overall the West Midlands region was prepared to offer more Dubs places than we were asked to take and its ability to respond to repeated requests was never properly tested.” It added that, “communication from the Home Office was not always good and raised questions about the credibility and efficiency of Home Office organisation.”
- The Leader of London Borough of Ealing Council describes the consultation as “chaotic”, “cursory”, “puzzling” and “wholly inadequate”.
- The Leader of London Borough of Hammersmith and Fulham Council similarly describes the consultation as an “incorrect and incompetent…process”.
- Officials at Brighton and Hove City Council “do not believe there was a genuine consultation with [their Council] over the Dubs scheme”.
- The Leader of London Borough of Lambeth Council, provides a detailed explanation of why if the “very brief consultation”’ had been “less hasty and more thorough” then “a more accurate and potentially higher number of places could have been indicated and subsequently been made available” to Dubs children.
- London Borough of Ealing Council’s Councillor Julian Bell said “if this was a consultation then, in my view and that of my officers, it was cursory to the point that I did not even recognise what it was”
- The Director of Children’s Services at London Borough of Hammersmith and Fulham Council, Steve Miley, described the process as “an invisible consultation”.
Available for Comment
Lord Dubs, activist and actress Juliet Stevenson, Josie Naughton and Jess Mills of Help Refugees and Rosa Curling from Leigh Day Solicitors are all available for further information and/or comment.
Tom Steadman, firstname.lastname@example.org; 07460 053 586
David Standard, email@example.com; 020 7650 1200