United Kingdom – Court of Appeal rules on Dubs amendment case, finding breach in fairness due to inadequate reasoning of negative decisions

Wednesday, October 3, 2018

On 3 October, the UK Court of Appeal ruled on a case regarding the UK government’s implementation of the “Dubs amendment scheme”, relating to the transfer of unaccompanied refugee children from mainland Europe to the UK and capped at 480 by the Home Office after a consultation procedure with local authorities. 

An action was brought before the High Court, challenging the lawfulness of the consultation procedures that led to the 480 figure and the reasoning of the decisions that found that some children did not comply with the relevant criteria. The High Court refused the challenge on all grounds.

On appeal against the High Court’s decision, the Court of Appeal highlighted the complexity and sophistication required in the consultation process with the local authorities, in a context of highly variable factors. Thus, regarding the first argument on the local authorities’ percentage-based responses on capacity, the judges agreed with the lower court that, although “cruel”, this tool cannot be considered irrational or arbitrary.

Subsequently, the claim that the procedure was unlawful, due to the consultation not having a specified closure date, was also dismissed. According to the Court, there was no evidence that this failure precluded the local authorities from indicating capacity, or the Government from taking into account responses past the alleged closure date. Lastly, the presumed confusion of the Scottish authorities, around the effects of responding to the consultation process, was considered to be immaterial in the case in question. The appellate court upheld the contested decision’s findings that the Secretary of State was not responsible for any confusion of local authorities, and any confusion did not render the process unlawful.

On the second ground, regarding the reasoning of negative decisions, the Court started by reiterating the importance of the “best interests of the child” principle, as enshrined in the EU Charter of Fundamental Rights and the UN Convention on the Rights of the Child. Although noting that the standard of procedural fairness is invariable, the content of this common law duty remains highly related to the facts and context of each case. As such, the fact that the actions challenged affected vulnerable children is an important factor in this case.

In assessing procedural fairness in the context of reasoning standards, the Court relied on the general principles set out in the Citizens UK case, and disagreed with the lower court’s conclusions, reiterating the need for a substantial right to judicial review. In the context of that right, reasons are deemed an essential feature of the courts supervisory function. Notably, the judges also observed that the UK Government could provide more detailed reasons, but did not do so out of concerns about legal challenges. The Court concluded that the reasons given for rejecting a child assessed against the Dubs criteria were patently inadequate, as the reasons for a negative decision were complex enough to require detailed explanations.

The appeal was allowed on the second ground and a declaration that there was a breach of the duty of fairness was deemed to be sufficient, as a form of relief.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.




Obligation to give reasons
Procedural guarantees