Enforced quarantine in hotels: a breach of the right to liberty?

27 December 2021 by Rosalind English

Hotta and others, R(on the application of) v Secretary of State for Health and Social Care and another [2021] EWHC 3359 (Admin)

This was an application for permission to challenge to the Managed Hotel Quarantine (MHQ) scheme. MHQ was put into place under Schedule 11 to the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (SI 2021 No.582) (“the 2021 Regulations”). The 2021 Regulations were made on 14 May 2021 and came into force on 17 May 2021. They have been amended at various stages subsequently. Also amended have been the practical arrangements and, in particular, for the purposes of this case, a list of countries known as the “Red List” countries.

The claimants contended that the scheme violated the Article 5 ECHR rights of those who were subjected to it. A particular focus of the proposed claim for judicial review was to identify the category of travellers who came to (or back to) England from Red List countries into the MHQ scheme, and who were required to remain within the scheme, notwithstanding that they could demonstrate that they had been vaccinated.

Similar claims have been brought before. R (Khalid) v Secretary of State for Health and Social Care [2021] EWHC 2156 (Admin) also concerned the measures that subjected travellers to 10 days’ quarantine, in a designated hotel, restricted to their individual rooms, having arrived here from a Red List country. In that case Linden J found that it was not properly arguable that the scheme violated the Article 5 rights of those who are subjected to it. He rejected the challenge on two grounds. The first was that Article 5 was not applicable because there was no “arguable deprivation of liberty”. The second was that, having concluded that Article 5(1)(e) (“the lawful detention of persons for the prevention of the spreading of infectious diseases”) was applicable, the MHQ scheme was necessary and proportionate and satisfied the applicable legal standards.

At the time of this current ruling – 9 December 2021 – 11 countries were on the Red List, arrival from which engaged the MHQ quarantine scheme. Fordham J appreciated the hardship that the scheme occasioned, citing in particular the Third Claimant, a regular visitor to her parents in South Africa. In July she received a call about the seriously deteriorating health of her father. She was aware of the Red List and the 10-day MHQ scheme. She booked flights to South Africa, to see her dying father, returning to England and underwent quarantine under the scheme. During her period of quarantine, her father passed away.

She describes – in detail that has assisted me to understand the human implications of this case – what it was like to be in quarantine. That included restrictions … which meant not being able to associate with her husband, who “dropped off some groceries” and could be seen beyond a fence from the exercise yard (“I … spoke to my husband on the phone, while looking at him from a distance through a gap of a few inches”). She explains the practical implications of the regime, including as to the limited opportunity – in difficult surroundings – to exercise … She describes the “discomfort” and “intimidation” that she experienced (“As least once a day, I was made to feel either uncomfortable, intimidated, or like a prisoner”).

It was argued on behalf of the claimants here that Linden J’s conclusions in Khalid as to the arguability of the claim were “wrong”. The claimants submitted that it was “significant” that this Court had real world evidence of deprivation of liberty, including the Third Claimant’s witness statement above. Evidence was of particular significance in relation to this first question – deprivation of liberty – because of the importance of examining the “concrete situation” (see Khalid at §35) faced by those who are the subject of the scheme, and ultimately the “intensity” of the controls on them through the scheme.

Fordham J was not willing to accept this line of argument. The implications of claims being brought before the Court and ‘repeat claims’ subsequently being put before different judges in the Administrative Court was a matter of legitimate concern:

There must, in my judgment, be public interest considerations which serve to operate in that kind of situation. Otherwise, to take the present case – and in the context of the significant numbers of individuals who go through the MHQ scheme – it would be open to later quarantined individuals, with different lawyers, and before different Judges, to seek to advance what in substance is the same claim that has already been rejected by this Court.

This line of reasoning may be taken to suggest that the rights under Article 5, or any other of the “strong” Convention rights such as Article 8 or Article 3, cannot be applied afresh to every immigration and asylum case, each one of which brings slightly different facts before the courts. With the threshold proposed by the judge in this case, it is difficult to imagine anything but the fewest cases for judicial review getting through the permission stage. Of course precedents are to be observed, even at the permission hearing, but it is hard to see how this principle could be put into practice in a range of different challenges, all bringing more or less persuasive evidence to bear on their claim. We can all agree that a judge should follow a High Court decision refusing permission for judicial review on grounds of unarguability, “on a materially identical claim”,

unless there is a “powerful reason” to take a different view or unless “convinced” that the earlier decision is wrong on the question of the arguability of the claim.

but it is at least arguable that the evidence in the Hotto case constituted a “powerful reason” to persuade the judge to let the challenge go ahead. (The first two claimants were not “victims” for the purposes of the Human Rights Act, so the reasoning esentially turned on the third claimant’s case). Fordham J himself wrote in his Judicial Review Handbook the following paragraph on granting or refusing permission:

The permission stage filters out judicial review claims (a) whose grounds are not properly arguable with a realistic prospect of success (b) which lack materiality under the statutory HL:NSD (highly likely; not significantly different) test, or (c) in respect of which it is appropriate to refuse permission on the basis of a ‘discretionary bar’ (such as delay, prematurity, or an alternative remedy). (op cit, pp301, Section 21.2)

The “not sufficiently different” test does not mean that the case has to be sufficiently different from other claims that have been refused permission, rather that “Even if a case is thought to be arguable, the judge must refuse permission if the judge considers that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred“. (Op cit, pp303, Section 21.2.9)

In any event Fordham J found that even without the precedents before him he was minded to reject the claim. He stressed that his own “independent analysis” would assure the claimants that.

whatever my concerns in relation to the Court being asked to revisit a claim so recently rejected as unarguable, they have nevertheless ultimately had my own freestanding and independent evaluation of arguability.

Even without finding himself bound by previous challenges to quarantine, the judge arrived “independently” at the conclusion that the MHQ scheme fell within the reach of Article 5(1)(e), and therefore it was not “reasonably arguable” that Article 5(1)(e) was restricted to action taken in respect of individuals identified as infectious. He referred to the ECtHR case of Enhorn v Sweden (2005) 41 EHRR 633 (25 January 2005) which concerned an individual who had been assessed as infectious. Even in the light of this, the judge was not persuaded that that case drove the conclusion, “even arguably”, that Article 5(1)(e) was so confined. As he observed, elsewhere in that same subparagraph (Article 5(1)(e)) there are parameters which are referable to the individual.

That language is: “the lawful detention … of persons of unsound mind, alcoholics or drug addicts or vagrants”. The language of Article 5(1)(e), so far as concerns infectious diseases, is broader. What it contemplates is deprivation of liberty, “in accordance with a procedure prescribed by law” (Article 5(1)), by way of “lawful” detention (Article 5(1)(e)), “of persons for the prevention of the spreading of infectious diseases”. It is, in my judgment, impossible to treat as read into that limb the need for an individualised assessment of infectiousness or for that matter of individually-posed risk.

The judge then went on, independently of the precedents, to review the necessity and proportionality of the 2021 Regulations and their restrictions. Here, he applied the same test as Linden J did in Khalid: it was clear (to him) that this MHQ scheme satisfied the rigours of the standards of necessity and proportionality for the purposes of Article 5.

This is because, the judge continued, that there is “an element of choice” on the part of individuals who travel to Red List countries and then come back from them. This element of choice might reflect poorly on people wanting to travel for travel’s sake during a pandemic, but it is difficult to see why the Third Claimant was effectively included in this category and thus subjected to oppressive measures when returning to this country from her father’s death bed in (red listed) South Africa.

Counsel for her and other claimants argued that the broad margin of appreciation accorded to governments in other parts of the Human Convention did not translate across into the stricter world of the deprivation of liberty of the individual and Article 5. And indeed Fordham J accepted that that proposition was “at least arguable”. But ultimately he rejected the necessity and proportionality argument, in the context of public health, prevailed over the claimants’ Article 5 rights in the present case.

The question is, rather, whether there is an alternative which clearly constitutes a ‘less intrusive’ alternative means of effectively achieving the public interest aim.

It is not entirely clear why the assessment of the “necessity and proportionality” should not have given some consideration to less intrusive alternatives, such as the comparable models in Norway and Ireland, both of which run a quarantine scheme that is implemented only by reference to those who are unvaccinated.

Why would this important debate not proceed in open court? It seems to the present writer that at least this part of the claim should have been allowed to proceed to a full hearing of the merits. In other words, here was an opportunity for the UK courts to consider the really “hard problem”: the valency of human rights in a time, not yet of national emergency, but approaching it. If the interests of “public health” are to prevail against any active challenges in the courts, we are in treacherous waters.