Win for families as High Court rules Home Office asylum guidance is unlawful

Part of the Home Office’s guidance on reuniting unaccompanied child asylum seekers (UAMs) with their families in the UK is unlawful, the High Court has ruled.

Legal action

Safe Passage, a charity that supports child refugees, took legal action against the Home Office over how caseworkers are told to process requests for UAMs to be reunited with family members in the UK. Under European legislation, child refugees can have their asylum claims transferred to another country if they have family there. A “take charge request” can be issued so they can travel to that country to be with their family and the claim is assessed there instead.

At a hearing in May, lawyers representing Safe Passage said the Home Office’s guidance on how officials process these requests is “causing delay and misery” for UAMs abroad and is unlawful.

In a ruling on 2 July, the High Court found that part of the guidance requiring caseworkers to reject a request after two months “even where inquiries had not yet established whether a family link existed and/or whether it would be in the UAM’s best interests to have their claim decided in the UK” was unlawful.

Lord justice Dingemans also ruled that previous guidance which said that “information should be obtained from a local authority only once the family link had been established was erroneous in law”.

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The judge, sitting with justice Dove, said that that guidance, which has since been replaced, “mis-stated the law” when it said that local authorities would only be asked to undertake an assessment with the UAM’s family “once the family link has been established”.

Dingemans said:

This advice established a bright line that the local authority should not undertake an assessment with the family or relative until the family link had been established.

He added:

The fact that guidance directed to caseworkers gives advice which is erroneous in law may lead to unlawful decisions. This does not assist UAMs, who may have been wrongly denied the right to re-join family members while the claim for asylum was being processed.

It does not assist the Secretary of State, who may have acted in breach of obligations and may have made decisions which were unlawful and which are liable to be set aside.

Unlawful

The High Court made a declaration that “specific parts of the guidance” are unlawful, but did not overturn the guidance as a whole as “there are substantial parts of the policy guidance which are not erroneous in law”.

In a statement after the ruling, Jennine Walker, head of UK legal and arrivals at Safe Passage, said:

Our success in this legal challenge will offer hope to many child refugees desperate to safely reunite with their families in the UK, who were wrongly turned away by the Home Office.

It should never have taken court action for the Home Office to decide applications fairly and lawfully, and we urge the Government to put these wrongs right by swiftly reuniting those refugee families whose applications were refused.

Featured image by John Ranson for The Canary