KCC vindicated as judge finds Home Office NTS decision making is unlawful

County Hall Sessions House, Maidstone image

The Home Secretary has been found to have acted unlawfully in a claim brought by KCC and affected authorities.

The High Court has found that KCC’s criticisms of the pace and urgency of the Home Secretary’s decision-making process in relation to the National Transfer Scheme (NTS) are well founded in a judgment handed down today.

The ruling found that the NTS and the management of the scheme is inadequate and for large periods was unlawful; and the Home Office must resolve the issues and ensure that it works fairly and sustainably in the future.

The NTS was designed and implemented in 2016 after small boat crossings landing on Kent’s shores increased dramatically as the shortest crossing route from France. Its purpose is to enable Unaccompanied Asylum-Seeking Children (UAS Children) arriving in Kent to be cared for by other local authorities throughout the country once Kent has reached its capacity under the scheme of 346 (or 0.1% of its under 18 population). The aim of this was to prevent Kent’s services becoming overwhelmed and ensure the care of UAS Children coming to the UK is equitable across the entire country.

In his Judgment, Mr. Justice Chamberlain acknowledged that the approach taken by the Home Office in the management of the NTS has been “unreasonably slow” and “unlawful.”

Despite KCC making many public pleas, over many years, to the Home Office regarding the failed NTS and the Council’s lack of capacity to safely continue to take ever escalating new arrivals (without existing UAS Children being moved to other local authorities swiftly), the Home Office consistently failed to consider this and plan ahead. This directly resulted in Kent’s Children’s Services becoming overwhelmed with this unreasonable burden and left with no choice but to announce that it could no longer safely take new referrals and meet its statutory duties.

This Judgment found that instead of taking responsibility and developing a sound plan for a working NTS, the approach taken by the Home Office was to only “make minor modifications, at intervals of months or years”. No proper plan was formulated and, in this respect, the Home Secretary’s decision-making in relation to the NTS was found “unlawful in the period December 2021 to 27 July 2023.”

Kent County Council member Roger Gough

...the judgment handed down today proves that the long-standing issues we have had with the NTS remain unresolved and KCC was right to bring this Judicial Review.

Roger Gough Leader of Kent County Council

The Judge has now explicitly set out what is expected of the Home Office to ensure they recognise their responsibilities and remedy this untenable position with a fit for purpose and sustainable NTS. It is vital that this is done as a matter of extreme urgency for the benefit of all arriving UAS Children and so that Kent can continue to meet its statutory duties.

The judge said this must include realistic estimations of arrivals of these children in need of care, having a more robust system for dealing with uncooperative or non-compliant other local authorities that refuse to do their fair share, appropriate funding and ensuring transfers out of KCC care take place in line with what is required to prevent Kent’s Children’s Services becoming overwhelmed again and so that all UASC can be cared for safely.

The Judge also acknowledged that funding from central government needs to be agreed swiftly in order for Kent to be able to provide the additional accommodation needed for the estimated numbers of new UAS Children arriving on Kent shores in the future.

Roger Gough, Leader of Kent County Council, said: “We are extremely pleased with the judgment handed down today proving that the long-standing issues we have had with the NTS remain unresolved and KCC was right to bring this Judicial Review.

“For many years, Kent has been shouldering the responsibility of the nation in the care of UAS Children and the Judge recognised, as we have always said, that this is not a ‘Kent’ problem but a national one, urgently in need of resolution by central government fairly and equitably across the nation.

“Kent’s public services and taxpayers should never be unfairly overburdened simply because of our geography in relation to the shortest crossing route, and following this ruling, this should never happen again. This is fundamentally about ensuring that the children in need of our care are at the heart of this.

“We now await prompt agreement from the Home Office for the funding KCC has confirmed is required to urgently provide sufficient temporary accommodation for all expected new UAS Children arrivals moving forward. This must be resolved now at pace so that we can establish new Reception Centres before arrivals are predicted to begin to escalate again in the new year.

“This, and the ruling that the Home Office must quickly implement an effective and successfully managed NTS, will hopefully ensure that Kent’s Children’s Services will never again have to announce the position of being so overwhelmed it can no longer to take any new referrals of children into its care.”