Unpublished Home Office policy on NHS debts used to stop and detain individuals on a visa declared unlawful

Introduction

R (on the application of MXK) v Secretary of State for the Home Department [2023] EWHC 1272 (Admin) concerned the Secretary of State’s policy to detain and question foreign nationals, who had limited leave to remain, when returning to the UK, about outstanding debts for medical treatment provided by the NHS. It raised key questions about the legality of the Secretary of State’s unpublished policy in this regard, as well as the application and scope of the Secretary of State’s public sector equality duty (“PSED”) pursuant to section 149 of the Equality Act 2010.

Factual Background

MXK and SXB were foreign nationals with limited leave to enter and remain in the UK. They both had outstanding debts for medical treatment provided by the NHS, because at that time, due to their immigration status, they were liable to pay for NHS treatment. They had both been repeatedly stopped, detained, and questioned about their NHS debts when re-entering the UK with their young children.

At the relevant time, NHS debts were recorded on immigration records and added as a warning marker on the Home Office system [23]. When a passenger arrived at a control point, the Immigration Officer (“IO”) would be alerted about the existence of, but not the reasons for, the marker [28]. The IO had to then undertake checks on the marker on a back-office system. Individuals with a warning marker may be stopped and detained whilst the IO checked what the marker related to, in order to determine whether to allow them to proceed. Once a passenger was found to have a warning marker because of an extant NHS debt, they would not normally be refused entry or have their leave cancelled unless there was evidence of them making false representations to obtain the visa, or where there was evidence of a change of circumstances since the visa was issued [46]. However, IOs would take up-to-date contact details for the passenger to be passed onto the relevant NHS trust [46].

The Grounds

The Claimants advanced four grounds of challenge [3]:

• The Claimants were stopped and detained pursuant to a misdirection of law and/or for the improper purpose of assisting with the recovery of NHS debts (Ground 1).

• The Claimants were stopped and detained pursuant to an unpublished policy which apparently directed IOs to stop and detain individuals with NHS debts for the purpose of taking up-to-date contact details and passing these to the relevant NHS trust. Detention pursuant to this policy was unlawful because it approved the exercise of examination and detention powers for reasons other than those permitted by paragraphs 2 or 2A and 16 of Schedule 2 to the Immigration Act 1971 (“Schedule 2”), and because the policy was unpublished pursuant to R (Lumba) v SSHD [2011] UKSC 12, [2012] 1 A.C. 245 (Ground 2).

• The powers to stop and detain in Schedule 2 can be exercised without the IO having any reason to believe or suspect the person has done anything justifying the curtailment or cancellation of their leave and they are not accompanied by sufficient safeguards (such as a published code of practice and/or a regime for independent review of the exercise of the power). They are accordingly not “prescribed by law” for the purposes of articles 5 and 8 ECHR (Ground 3).

• Given the obvious risk that powers of this kind may be exercised on grounds that are discriminatory, and in the absence of any consideration of the equality impacts of the use of the detention power in Schedule 2, the Secretary of State is in breach of her duty under s.149 of the Equality Act 2010 to have “due regard” to the need to eliminate discrimination. The Claimants argued that charging for NHS services was likely to have a disproportionate impact on women as a group and particularly on pregnant women (Ground 4).

The Law & Relevant Policy

The relevant powers to detain and examine individuals entering the UK are set out in paragraphs 2, 2A and 16 of Schedule 2 to the Immigration Act 1971. In summary, individuals could be detained and examined for the purpose of determining: whether they are a British citizen; whether, if not, they may enter the UK without leave; whether, if not, they have been given leave, they should be given leave, or they should be refused leave; and whether if they have been given leave, that leave should be curtailed. An individual with leave to enter may be detained and examined for the purpose of establishing whether there has been a change in circumstances since the leave was given which means it should be granted; whether the leave was obtained as a result of false information or by failure to disclosure material facts; or whether there are medical grounds on which that leave should be cancelled. An individual may also be detained and examined for the purpose of establishing whether the leave should be cancelled on the grounds that the person’s purpose in arriving in the United Kingdom is different from the purpose stated in the entry clearance or to establish whether it would be conducive to the public good for their leave to be cancelled.

The Immigration Rules provide further guidance about NHS debts at paragraph 9.11.1, which states that an application for entry clearance, permission to enter, or permission to stay may be refused where an individual has NHS debt above the applicable threshold (£1,000 until 6 April 2016, £500 since then). Chamberlain J noted at [43] that the position was therefore that:

"… 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)".

An unpublished piece of guidance entitled “NHS debtors, version 6.0”, however, provided that those with an unpaid NHS debt may be refused permission to enter despite having continuing leave. It stated that:

“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." (emphasis added)

The policy was only disclosed in the course of the litigation and once it was disclosed, and submissions made about it, the errors in the policy were recognised by the Secretary of State and the policy was withdrawn or amended [76]. By that time, however, Chamberlain J considered that it was likely that it had been applied to a very large number of people [76].

Judgment

Ground 1

Preliminary Issues

Before dealing with the substance of Ground 1, Chamberlain J dealt with two preliminary issues: (i) the burden of proof in a claim alleging unlawful detention; and (ii) the proper approach to findings of fact.

In relation to (i), Chamberlain J confirmed that once a claimant had established that they were detained, it was for the Secretary of State to prove that there was a lawful justification for the detention [52], pursuant to Lumba. He noted, however, that it was important not to expect an unrealistic level of detail from a public authority seeking to justify detention [53].

In relation to the correct approach to findings of fact, Chamberlain J referred to the principles he set out in R (F) v Surrey County Council [2023] EWHC 980 (Admin), at [46]-[50], and in particular the following at [50] of that judgment:

• “There is no absolute rule that the court must accept in full every part of the statement of a witness who has not been cross-examined, whether the statement is adduced for the claimant or the defendant. The court can reject evidence in a witness statement if it ‘cannot be correct’ (Safeer, [16]-[19] and Singh, [16]). That might be so if it is contradicted by ‘undisputed objective evidence… that cannot sensibly be explained away’: S v Airedale, [18]. But there are also examples of courts rejecting evidence given in witness statements as, on balance, inconsistent with other written evidence: see e.g. Talpada, [48].
• In some cases, the court may be unable to resolve a conflict of written evidence on a question of primary fact. In that situation, “the court will proceed on the basis that the fact has not been proved”: Talpada, [2]. This will be to the disadvantage of whichever party asserts the fact. That will generally be the claimant, because in judicial review the claimant generally bears the burden of proving all facts necessary to show that the decision challenged is unlawful. Thus, 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.” (emphasis added)

Evidence about the policy and treatment of other individuals

Chamberlain J concluded that the unpublished policy was likely to have informed the approach of Border Force staff to those with warning markers for NHS debts [59]. It was significant that it did not tell staff that the only basis for cancelling leave in connection with an NHS debt is where the person has made false representations or failed to disclose relevant facts on a previous application for leave; and (as counsel for the Secretary of State accepted) any examination in relation to NHS debts must be directed towards establishing whether there are grounds for cancellation [59]. Further, by saying that “passengers with continuing leave would not normally be refused entry for an outstanding NHS debt” (emphasis added), it implied that the existence of an NHS debt may itself be a sufficient ground for cancellation of leave, at least in some cases [59]. In addition, the following sentence in the policy suggested that taking contact details and giving advice about the consequences of not paying off the debt were among the lawful purposes for which a passenger may be examined and detained [59].

Whilst Chamberlain J found that it was not necessary, nor appropriate to make detailed findings about what happened to individuals other than the claimants, he concluded that the evidence relied upon by the claimants, taken together with the Secretary of State’s evidence and the relevant policy documents, seemed to establish that there was a practice of detaining returning residents for varying periods in order to examine them about their NHS debts [60].

Chamberlain J concluded that although the claimants had initially been detained lawfully, whilst the officer checked what the warning flag related to, after a short time (15 minutes in the case of MXK [65] and 5 minutes in the cases of SXB and ALK [68]) the claimants were detained for purposes other than those specified in Schedule 2 and the detention became unlawful. Accordingly, Ground 1 succeeded.

Ground 2

In terms of the legality of the policy as a whole, Chamberlain J referred to R (A) v Secretary of State for the Home Department [2021] UKSC 37, [2021] 1 WLR 3931 at [46] where the Court identified three situations in which a policy can be unlawful, which can broadly be summarised as follows: (i) 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; (ii) the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law, but fails to do so; and (iii) the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports to provide a full account of the legal position but fails to achieve that, which has the effect that the policy presents a misleading picture of the true legal position.

Here, Chamberlain J noted that there were three aspects of the policy relevant to its lawfulness [72]:

1. The use of the word “normally” as discussed above, which wrongly implied that the existence of an NHS debt may itself be a sufficient ground for cancellation of leave at least in some cases.
2. The absence of any reference to the purposes for which a returning resident can be lawfully examined in relation to an NHS debt.
3. The positive statement that detained passengers may be asked to provide up-to-date contact details and given advice about the consequences of not paying off the debt. Counsel for the Secretary of State accepted that detention for those purposes would be unlawful and new guidance instructs staff not to seek these details or give this advice.

Taken together, Chamberlain J found that these three aspects brought the policy within the first of the situations identified in A because they were capable of inducing an officer to breach his legal obligations by examining and detaining a returning resident for purposes other than those permitted by Schedule 2 [73]. Further, even if that were wrong, it fell within the third situation in A [73]. This was because it was issued to non-legally trained staff and it purported to give comprehensive instructions on how to exercise their legal powers, including the power of detention. The policy was at best misleading, in that it failed to identify the only purposes for which they might examine and detain a person with limited leave to enter or remain in relation to an NHS debt, and in doing so gave the impression that the permitted purposes were broader.

The fact that the policy was unpublished was a further reason why it was unlawful. This was because where a statute conferred a broad power of detention, the rule of law called for a transparent statement of the circumstances in which the power would be exercised [74]. This was in accordance with Lumba. Accordingly, Ground 2 succeeded.

Ground 3

Ground 3 challenged the Schedule 2 detention powers more generally as failing to meet the “prescribed by law” requirement in article 5 ECHR and “in accordance with law” requirement in article 8 ECHR. Chamberlain J, however, concluded that it was not appropriate for him to determine Ground 3 in this case, in circumstances where the Claimants had already succeeded on Grounds 1 and 2 [79].

Ground 4

Ground 4 concerned whether the Secretary of State had breached her PSED pursuant to section 149 of the Equality Act 2010. At [83], Chamberlain J referred to the applicable principles, which were set out in a number of cases, including R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058, [2020] 1 WLR 5037. At [175] in Bridges, the Court of Appeal identified the following six key principles:

“(1) The PSED must be fulfilled before and at the time when a particular policy is being considered.

(2) The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes.

(3) The duty is non-delegable.

(4) The duty is a continuing one.

(5) If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required.

(6) Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision.”

Chamberlain J concluded that the Secretary of State was in breach of her PSED because there was no evidence to show that she had ever considered the equality impact of her use of the examination and detention powers in Schedule 2 for these purposes, let alone kept those impacts under continuing review [88]. Further, in the absence of any witness evidence about the consideration given to these issues, it was not possible to say what the outcome would have been if equality impacts had been taken into account. Further, it was certainly not possible to conclude that it was highly likely that the outcome would not have been substantially different [90]. Accordingly, Ground 4 succeeded.

Comment

The following significant points emerge from MXK which will be of interest to practitioners in this area:

1. Burden of proof: MXK confirms that the Secretary of State bears the burden of showing that detention (or continuing detention) is justified, once the claimant has established that they were detained [52].
2. Likelihood of further claims: Although Chamberlain J was careful not to make findings in relation to the experiences of individuals other than the Claimants who were also detained in relation to NHS debts, it appears likely that many other unlawful detention claims from such individuals will now follow. Whilst each case will turn on its own facts, those claimants will no doubt seek to rely, by analogy, upon Chamberlain J’s finding in relation to MXK that in the absence of any evidence that there was any problem with the back-office system, or that the IO was otherwise occupied, it is likely to have become apparent within a maximum of 15 minutes that the only reason for the warning flag was MXK’s NHS debt (and therefore after the first 15 minutes the detention became unlawful) [64]-[65].
3. ECHR arguments: Whilst the Claimants were successful in Grounds 1, 2 and 4, it was neither necessary nor appropriate to determine Ground 3 and that wider point remains open to be argued in another suitable case. Chamberlain J commented that the arguments in relation to Ground 3 were “factually and legally complex” and “ought to be resolved in a case where they matter to the outcome” [79].
4. Importance of filing appropriate witness evidence: This case highlights the importance of filing appropriate evidence, verified by a statement of truth. In this case Chamberlain J lamented at [61] the fact that the Secretary of State had had every opportunity to file evidence about how the powers of examination and detention were used but failed to do so. Further, no evidence was filed to show that Border Force staff were aware that the only lawful purpose for examination was to determine whether the passenger had made false representations, or failed to disclose relevant facts on a previous application for leave, or that examinations in such cases were in fact directed to that purpose. Whilst counsel for the Secretary of State informed the Court on instruction that the systems which the IOs had access to enabled them to undertake such an examination, there was no evidence verified by a statement of truth to substantiate this.
5. Importance of filing explanatory evidence: In addition, MXK highlights the importance of filing evidence to explain any primary evidence (in this case, Home Office logbooks). In MXK, the Secretary of State relied upon a Home Office log book entry, from which counsel for the Secretary of State invited Chamberlain J to infer that the detention only lasted for 1 minute (as opposed to the 30-45 minutes that MXK estimated) [64]. However, Chamberlain J found that the log book entry alone was an inadequate basis for finding that MXK had fabricated her account, in the absence of any evidence from the Secretary of State to explain what the logbook entries mean [64].
6. Importance of filing evidence to set out public interest reasons for non-publication of a policy: Finally, MXK makes clear that pursuant to Lumba at [38], there is no legal obligation to publish a policy where there are compelling national security or other public interest reasons against publication. However, Chamberlain J made clear that if the Secretary of State wished to assert that that was the case, it would be necessary to carefully consider evidence about the circumstances in which the decision not to publish was reached and the reasons for it. Notably, the courts cannot proceed on the basis that there were legitimate public interest reasons for non-publication, purely on the basis of submissions from counsel which were unsupported by evidence [77].

Harriet Wakeman is a barrister at Landmark Chambers. Harriet has a successful practice in public law, inquests, public inquiries, costs, and planning law. She is recognised as a ‘Tier 1 Rising Star’ (Legal 500, 2024) and ‘Tier 4 Leading Junior’ (Chambers and Partners, 2024).