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The High Court has now ruled – twice – that it is unarguable that mandatory hotel quarantine breaches the Article 5 ECHR rights of those who are subject to it: see, most recently, the decision of Fordham J in R (Hotta, Whiteway and Gawthrop) [2021] EWHC 3359 (Admin) (9 December 2021). It has been argued in a number of challenges that mandatory hotel quarantine breaches Article 5 ECHR: that, in the language of the Strasbourg case-law, the rules constitute a “deprivation of liberty” rather than a mere “restriction on liberty”; that Article 5(1)(e) (which permits detention “for the prevention of spreading of infectious diseases”) does not bite; and even if Article 5(1)(e) does apply, mandatory hotel quarantine, especially of fully vaccinated persons, is arbitrary and disproportionate. Consistently with the earlier case of Khalid, Fordham J concluded that the Article 5 ECHR challenge was unarguable. Assuming in the Claimants’ favour that hotel quarantine did constitute a deprivation of liberty, Fordham J rejected the Claimants’ argument that Article 5(1)(e) could not bite where there was no diagnosis of illness, or in the absence of an individualised assessment. Noting that this did not mean that state authorities had a “blank sheet of paper” to design and implement schemes for the deprivation of liberty which were preventative and precautionary, the Judge concluded that it was nonetheless beyond argument that the managed hotel quarantine scheme was necessary and proportionate. Julia Smyth and Yaaser Vanderman represented the Secretary of State for Health and Social Care (Defendant) and the Secretary of State for Transport (Interested Party). Press coverage can be found here and here:
