Mandatory Hotel Quarantine Scheme does not breach Article 5 ECHR

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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 them. See, most recently, the decision of Fordham J in R (Hotta, Whiteway and Gawthrop) [2021] EWHC 3359 (Admin) (9 December 2021), as well as the earlier decision of Linden J in R (Khalid) v Secretary of State for Health and Social Care [2021] EWHC 2156 (Admin). Although permission decisions, both Judges have given permission for their decisions to be cited in other cases.

“Managed hotel quarantine” applies to returnees from “red list” countries, formally “category 3 countries”, under the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021. Under reg. 10 of, and Schedule 11 to, those Regulations, arrivals from red list countries must, subject to exceptions, book a “managed self-isolation” package and remain in hotel quarantine for 10 days.

It has been argued in a number of challenges that these rules breach Article 5 ECHR: that, in the language of the Strasbourg case-law, they constitute a “deprivation of liberty” rather than a mere “restriction upon liberty”; that Article 5(1)(e) (which permits detention “for the prevention of spreading of infectious diseases”) does not bite and so the “detention” can never be lawful; and even if Article 5(1)(e) does apply, mandatory hotel quarantine, especially of fully vaccinated persons, is arbitrary and disproportionate.

Consistent with the earlier case of Khalid, Fordham J concluded that any Article 5 ECHR challenge was unarguable. Assuming in the Claimants’ favour that hotel quarantine did constitute a deprivation of liberty (the Secretary of State’s position is that it unarguably does not constitute a deprivation of liberty), Fordham J rejected the Claimants’ argument that Article 5(1)(e) could not bite where illness had not been formally diagnosed, or in the absence of an individualised assessment. He held:

“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 … if one posits the situation where there is not yet a test, there could be no individualised assessment of whether an individual is “infectious”, if it is not yet possible to conduct that assessment. What the wording and purpose of the limb clearly … encompass are steps which are protective and precautionary. The word is “prevention”. Prevention can arise out of an individualised assessment of risk. But it may very well arise … without or outside of an individualised assessment of risk. That is why it is so important in the present case that the clear focus of the MHQ scheme, and the Red List on which it is based, is that it relates in particular to the concerns arising from the vaccination-imperviousness of Variants of Concern and Variants under Investigation …”

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 beyond argument that the managed hotel quarantine scheme was necessary and proportionate. He said:

It must in my judgment be relevant … that there is an element of choice on the part of individuals who travel to Red List countries and then come back from them; and there is also an element of choice in those returning individuals coming back directly from a Red List country and not having spent a 10-day period in a third country. In my judgment, it is plainly also relevant that the backcloth of that travel to a Red List country to face quarantine is “Government advice that individuals should not travel to Red List countries” … I have considered all of the features, and all of the evidence that had been put forward, in this case, against the principled standards of justification, namely: necessity; proportionality and protection against arbitrariness. In my judgment, having regard to those features, including those which were emphasised by Linden J …  the nature of the relatively “short duration” … the existence of certain, albeit narrow, exceptions under the regulations … and the position so far as concerns alternatives … this case does not cross the arguability threshold, for the purposes of a viable judicial review on this third question of necessity and proportionality …”

It has been reported in the press that the Claimants intend to seek permission to appeal.

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).

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