Unpublished policy and unlawful detention: a case note on R (MXK) v Secretary of State for the Home Department
29 June 2023
In R (MXK) v Secretary of State for the Home Department [2023] EWHC 1272 (Admin), the Administrative Court held that:
- the repeated detention of the claimants – foreign nationals with limited leave to remain – when they returned to the UK from travelling abroad, so that they could be questioned about their NHS debts, was unlawful;
- the policy pursuant to which the claimants were detained (the “Policy”) was unlawful because it contained a positive statement of law which was wrong or, alternatively, because it failed to provide a full account of the legal position;
- the Policy was unlawful because it was unpublished; and
- the Secretary of State for the Home Department (“SSHD”) was in breach of the public sector equality duty (“PSED”) under s.149 of the Equality Act 2010.
In reality, the facts carried the day. This was true not only in relation to the unlawful detention issue, but also on some other points – for example, the SSHD failed to evidence any public interest in not publishing the Policy or any consideration given to the equality impacts of the exercise of the relevant powers of detention. Insofar as there are lessons to be learned, they are likely to be found in the criticisms levelled at the evidence (or lack thereof) provided by the SSHD.
The facts
Both MXK and SXB were foreign nationals with limited leave to enter and remain in the UK. As a result of their immigration status, they were required to pay for their NHS healthcare. They both owed sums in respect of their antenatal and maternity care.
NHS debt is recorded on immigration records and flagged on the Home Office’s ‘Warnings Index’ (“WI”) database. Individuals with a WI flag may be stopped at the UK border and detained whilst an officer checks what the flag relates to, so as to determine whether or not to allow them to proceed.
MXK and SXB, along with their young children, were repeatedly and separately stopped, detained and questioned about their NHS debts on their return to the UK after travelling abroad. Broadly, on each occasion, they were stopped, their immigration records were checked, they were questioned about their NHS debt, their current contact details were taken, and they were eventually released. The periods of detention varied, but were relatively short.
The Claimants also provided evidence of other individuals in the same position receiving similar treatment. Chamberlain J held that it was “not necessary or appropriate to make detailed findings about what happened to individuals other than the claimants” but nonetheless concluded that this evidence “seems to establish that there was a practice of detaining returning residents for varying periods in order to examine them about their NHS debts” [60].
Law and policy
The relevant powers to detain and examine individuals entering the UK are found in paragraphs 2 and 2A of Schedule 2 to the Immigration Act 1971 (“IA 1971”) (read with paragraph 16). In short, an individual who requires leave to enter may be detained and examined for the purpose of determining whether they have leave; they should be given leave; they should be refused leave; and whether their leave should be curtailed (paragraph 2). An individual with leave may be detained and examined for the purpose of establishing whether their leave should be cancelled because of a change in their circumstances since they were given leave or because they gave false information or failed to disclose material facts when their leave was obtained (paragraph 2A).
The Immigration Rules, made pursuant to s.3(2) IA 1971, provide further guidance. NHS debts are dealt with at paragraph 9.11.1, which in essence provides that applications “for entry clearance, permission to enter or permission to stay may be refused” where an individual has NHS debt. Chamberlain J summarised the position as set out in the Immigration Rules at [43]:
“… failure to pay NHS debt is a ground for refusing an application for entry clearance, permission to enter or permission to stay (para. 9.11.1), but is not (in and of itself) a ground for cancelling any of these, once granted. The grounds for cancellation of leave to enter or stay are that false representations were made or relevant facts not disclosed (para. 9.7.3) or that circumstances or the applicant’s purpose in entering/staying have changed (paras 9.20.1 and 9.20.2)” (original emphasis).
The Policy was entitled NHS debtors, version 6.0. The Policy provided that those with “an unpaid debt to the NHS” may be refused permission to enter. The most relevant extract was the following:
“Passengers with continuing leave would not normally be refused entry for an outstanding NHS debt. However, officers should take up-to-date contact details for the passenger and pass these on to the NHS trust. You can remind the passenger that the outstanding debt may prevent any further leave being granted.”
The judgment
Chamberlain J first dealt with two preliminary points. Firstly, he confirmed that, once the claimants had established that they were detained, the SSHD had the burden of proving that such detention was lawful. Secondly, he set out the proper approach to fact-finding in a judicial review where the claimant is relying on witness evidence untested by cross-examination and the defendant is relying on contemporary documentary material. The purpose of this clarification seemed to be to emphasise that “the principle that the defendant’s evidence is to be preferred, save where it ‘cannot be correct’, arises because of the difficulty of satisfying the burden of proof where there is a conflict in written evidence, not because evidence adduced on behalf of a defendant is inherently more likely to be true than that adduced on behalf of a claimant” [56].
As to the detentions, the claimants accepted that they were initially detained lawfully, until it was established that their WI flags related only to NHS debt. The SSHD conceded that, thereafter, the claimants could only be lawfully detained and examined in order to determine whether their leave should be cancelled (on the basis that they made false representations, failed to disclose relevant facts, or because of a change in circumstances).
Having made this concession, it fell to the SSHD to prove that this is what happened – i.e., that the claimants were detained so that they could be asked about, say, whether they had made any false representations, rather than so that they could be asked about their NHS debt in general terms. Chamberlain J dealt with the general evidential picture in stark terms. In short, he found the SSHD’s evidence to be lacking, and the claimant’s (untested) recollections to be reliable. He held that it was difficult to “pinpoint exactly” when the officers on each occasion realised that the only reason for the WI flag was an NHS debt but held that it was “likely to have become apparent within a maximum of 15 minutes” [63]. After this point, Chamberlain J held that the detentions were not for any purpose specified in paragraph 2 or 2A and so the remainder of the detention was unlawful.
Chamberlain J then accepted the claimants’ criticisms of the Policy, focussing on the extract set out above. Its use of the word “normally” wrongly suggested that NHS debt could sometimes be a ground for cancelling leave. The following sentences then wrongly suggested that it was permissible to detain an individual in order to take their contact details and remind them of the potential consequences of their debt.
The court held that the Policy came within the first of the three categories of unlawful policy set out by the Supreme Court in R (A) v Secretary of State for the Home Department [2021] UKSC 37 at [46], namely that, “where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way”. On this basis, the Policy was “capable of inducing an officer to breach his legal obligations” [73]. Alternatively, Chamberlain J held that the Policy would fall within the third category in A, where an authority decides to promulgate a policy and “purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position”. The Policy purported to give “comprehensive instructions” to non-legally trained staff who would “reasonably expect and be expected to follow these instructions”. It was misleading “at best” [73].
Chamberlain J had little hesitation in concluding that the “fact that the policy is unpublished supplies a further reason why it is unlawful” [74], with reference to Lord Dyson’s judgment in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 at [34]-[36]. The SSHD’s unevidenced submission (relying on Lumba at [38]) that “there were indeed public interest reasons against publication” was dealt with at [77] and given short shrift. It could not be “seriously maintained” on the basis of instructions alone – “Courts cannot proceed on the basis of bare submissions that are not supported by evidence” [77].
As to the PSED, the SSHD relied on several equality impact assessments, but none was a Home Office assessment looking specifically at the exercise of detention powers. Whilst it was important to apply the PSED “with a degree of flexibility and common sense” it was “not the role of the courts to excuse non-compliance with an obligation which Parliament has imposed” [88]. The SSHD’s alternative submission, with reference to s.31(2A) of the Senior Courts Act 1981, that the breach made no odds, was also dismissed – in “the absence of any witness evidence about the consideration given to these issues it is not possible to say what the outcome would have been if equality impacts had been taken into account” [90]. Indeed, the Policy had “in fact been modified as a result of this litigation”.
Comment
The court’s conclusions on the legality of the claimants’ detention and the Policy can hardly have been surprising. There simply was and is no power to detain someone in the claimants’ position in order to question them about their NHS debt. That is what the claimants said happened to them and what the Policy said would happen to them. The SSHD failed to provide any evidence that this is not what happened to them.
What is perhaps more surprising, in those circumstances, is that the case was defended – particularly seeing as the SSHD accepted the errors with the Policy during the litigation and confirmed that it was being amended and that it would be published once it had been. Indeed, the upshot of this judgment is that anyone detained in the claimants’ position – and it looks like there may be many – will have a claim for unlawful detention. In which case, the only issues will be factual: when did the officer realise the WI flag related solely to NHS debt and, assuming the examination thereafter did not concern any potential ground for cancelling leave, how long did detention last after that point? Chamberlain J clearly had an eye to subsequent litigation when he decided it would be inappropriate to make findings of fact about the experiences of individuals other than the claimants (see [60]). Nonetheless, his conclusion that it generally takes fifteen minutes for an officer to realise a WI flag relates only to NHS debt is unlikely to help the SSHD’s negotiating position.
Nonetheless, there at least two legal points to note. Firstly, Chamberlain J’s confirmation that the SSHD had the burden of proving that the claimants’ detention was lawful may be thought to have been unnecessary. The fact that “the burden shifts to the defendant to show that there was lawful justification” (Lumba at [65]) has “long been established” (Lumba at [44]). However, the slight wrinkle in this case was that the claimants conceded that their detention was initially lawful. The question, therefore, was “whether it is the claimants who bear the burden of proving that the detention became unlawful or the Secretary of State who bears the burden of proving that it remained lawful” [51].
Though it was not expressed as such, the need for Chamberlain J’s clarification may come from the Court of Appeal’s judgment in Saleh v Secretary of State for the Home Department [2013] EWCA Civ 1378. In that case, McFarlane LJ held at [45] that where, in an immigration context, detention is alleged to become unlawful after a certain point because a deportee was detained for an unreasonably long period (the second of the ‘Hardial Singh principles’ taken from R v Governor of Durham Prison Ex p. Singh [1984] 1 W.L.R. 704), “consideration of the burden of proof seems to be neither apt nor useful”. Rather, the focus is on the court’s evaluation of what period was “reasonable”. Logically, this reasoning had no application in the present case. When the court is dealing with the second Hardial Singh principle, it is asking whether detention has gone on for so long that it has become unlawful notwithstanding that there is otherwise lawful justification. Here, the question was whether, after a point, there was any lawful justification at all. As such, it is a straightforward application of the ‘long established’ burden of proof. Nonetheless, Chamberlain J’s clarification is helpful in confirming, if confirmation were needed, that the detainer has the burden of showing lawful justification to detain at all points in the detention. The Saleh exception is confined to the immigration context where it is alleged that detention ahead of deportation has continued for an unreasonable period.
Secondly, the SSHD and Chamberlain J seemed to take slightly different approaches to the test for unlawful policies under the first category set out in A at [46]. The SSHD submitted that the Policy was not unlawful because it was not inevitable that an officer following it would act unlawfully. Chamberlain J, however, held at [73] that it was sufficient thatthe Policy was “capable” of inducing an officer following it to act unlawfully. At first blush, the SSHD’s understanding seems more consistent with the test as expressed in A, that the policy “will” induce a person who follows it to act unlawfully. However, the Supreme Court in A expressly rejected a test based on risk. It is not about the likelihood of the policy causing illegality, but about the conduct which the policy sanctions. The Supreme Court in A at [38] defended the test set out by the House of Lords in Gillick v West Norfolk and Wisbech AHA [1986] A.C. 112 in the following terms “does the policy in question authorise or approve unlawful conduct by those to whom it is directed?” Seen in this light, Chamberlain J was clearly right to hold the Policy unlawful. The Policy authorised the refusal of entry to individuals with leave to enter because of outstanding NHS debt and the detention of such individuals for the purpose of taking their contact details. Such conduct is unlawful. It is immaterial that an officer following the Policy might “normally” act lawfully.
Aside from these legal points, it is the evidence that was before the court and its treatment that is most noteworthy. Chamberlain J was especially critical of the fact that “the Secretary of State has had every opportunity to file evidence in this case about how the powers of examination and detention under Sch. 2 to the 1971 Act are in fact used” but that there was “no such evidence” [61]. Although counsel for the SSHD had said, on instruction, that the system officers had access to would allow them to examine an individual’s previous applications for leave (so that they could see whether false representations had been made) there was “no evidence verified by a statement of truth to substantiate this and, in any event, nothing to suggest that officers in fact access such documents as part of an examination under Sch. 2 to the 1971 Act” [61]. It was recognised that officers would not be able to remember specific instances, but suggested that they could have given evidence about how they generally use their powers of detention where the only WI flag relates to NHS debt, or how they are trained to do so.
Similarly, Chamberlain J made clear that it was not good enough for the SSHD to refer to the contemporary records and explain what they meant in submissions and on instruction. He was invited to conclude on the basis of log book entries and other records that the detentions were shorter than the claimants recalled. However, these records were time and again held to be “a wholly inadequate basis on which to reject” [67] the claimant’s accounts where there was “no explanation in the witness statements or otherwise of what these entries mean” [37].
The only other point of note is an additional ground of challenge put forward by the claimants: that the powers to detain in Schedule 2 to the IA 1971 are not prescribed by law for the purposes of Articles 5 and 8 ECHR. With the claimants having succeeded on their other grounds, it was unnecessary for the court to decide this “much broader” issue. That battle shall have to be fought another day.
Lance Baynham is a second six pupil barrister at 1 Crown Office Row
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