Unpublished policy and unlawful detention: a case note on R (MXK) v Secretary of State for the Home Department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  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- the Policy was unlawful because it was unpublished; and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.
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