The Court of Appeal has held that the Home Office’s refusal to allow vulnerable children to enter the UK after the refugee camp they were living in was demolished was both unfair and unlawful.
In response to applications made by vulnerable minors, only two reasons for refusal were set out in the spread-sheet composed by Home Office officials, stating either that the applicants were assessed to be “+18” or that “criteria not met”. These two reasons were applied to approximately 1,800 children, 388 of those being rejected because they were above 18, and the remainder shown as falling under the “criteria not met” category.
Help Refugees challenged these refusals, stating them to be unlawful and arguing that the Secretary of State had breached his common law duty (requiring procedural fairness) by way of the Home Office’s refusal of the applications made by children displaced by the demolition of the refugee camp in Calais. The Court of Appeal stated that the effective application of the rule of law required access to justice, and that this was partly made up of giving an individual ‘sufficient reasons … for an administrative decision to allow a realistic prospect of [a] challenge’. If the reasons provided in support of a refusal do not give the subject of the decision the ability to challenge it, ruled the Court of Appeal, the reasons provided will be legally inadequate. ( EWCA Civ 2098).
Hickinbottom LJ held that the children refused in this way had no real prospect of being able to challenge the decision, meaning the procedure and subsequent decision making by the Secretary of State was in breach of the common law duty of fairness, and was therefore unlawful.
Following this decision, the children rejected will only receive a declaration from the Home Office that the decisions were unfair. There is currently no guarantee that the Home Office will review the cases of the individual applicants refused under this unlawful decision making process. In addition to this it is unlikely that the children who were refused entry are in a position to benefit from a fairer process, as they could now be elsewhere in Europe.
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