The small boats crisis on the south coast of England and the arrival of migrants fleeing crises in Ukraine, the Middle East and North Africa have left the UK’s border control facilities straining under the weight of numbers. Prominent problems at places such as Manston and other temporary holding sites have meant that the Government have had to make arrangements for many people waiting for their applications to be processed to be put up in hotels across the country, something which, it’s fair to say, has not gone down awfully well in some places.

In some of those locations there have been angry protests, and whilst motivations for these disputes vary from pressure on local facilities to concerns about the spreading of illnesses and others, one consistent argument has been made by objectors- the Government should have consulted with residents before doing so. Naturally, this got us interested. Should the Government be consulting?

On the face of it, it doesn’t seem like there’s an obvious reason that legally they would have to. As we know from court cases in the past, the four circumstances where the law generates a duty to consult are from statute, where there has been a promise to consult, where there is an established practice of consultation, and where it would be conspicuously unfair not to do so. The first three of those would seem to be irrelevant in the present circumstances and don’t seem to generate any duty. The fourth however might be a bit more interesting.

Is it conspicuously unfair for the Government to use hotels to hold migrants while their applications are being processed? Some of the protestors might well say it is. We’re not so sure. Ultimately, what it comes down to is whether living next to a hotel carries with it an expectation that that hotel might be full of guests. If it does, which seems reasonable given the purposes of a hotel, then the further question arises as to whether it makes a difference that these are migrants from abroad?

If it does, and the burden on local facilities is likely to be vastly more than you might expect from ‘regular’ hotel guests, then arguably there might be an argument that some degree of consultation should be undertaken. As the courts have repeatedly held however, where there is no specific legal duty one is unlikely to be imputed by force of law.

So external to the law, and as more of an ethical/moral question, should the Government have consulted as a matter of choice? There is a possible problem here which finds a neat analogy with another seldom-heard group, the Gypsy, Roma and Travelling community. Local authorities are required to provide space for members of these communities to stop and spend time. One of the consistent problems however is that in many areas there is a deep reluctance to allow this, which has led to unfortunate shortages in sites and situations where members of the GRT community end up being shuttled around. Given the strength of the opposition in many places to migrant facilities, it seems likely that this pattern might be repeated in this case, which might result in them being sent back to unsafe facilities that are unfit for purpose.

We would always say that often when public opposition is strongest, that’s when consultation is most needed. But might there be circumstances where humanitarian concerns override that where there is no legal duty to consult? That might be more a matter for politicians than for us, but it’s an interesting one to consider, and we’d welcome hearing your thoughts on it.