This case in the High Court details multiple examples of unlawful detention of individuals re-entering the UK because an unpublished Home Office policy wrongly suggested officers had the power to stop, detain and question individuals who have unpaid NHS debt.
MXK and SXB were both foreign nationals and mothers of young children. Both had outstanding debts for medical treatment provided by NHS trusts because their immigration status made them liable to pay for it. They both had limited leave to enter and remain in the UK, and both had been stopped, detained and questioned about their NHS debts multiple times when re-entering the UK with their children, after travelling abroad.
MXK was an Albanian national with three children, all British citizens. She arrived in the UK in 2012, pregnant with her second child, and claimed to be a victim of trafficking. Her claim was refused, as was an asylum claim, but she was granted discretionary leave to remain which had since been extended numerous times. MXK had travelled abroad eight or nine times since her first grant of leave, either to Albania or on holiday elsewhere and said that every time she was stopped on return at the airport, with the reason given being that she owed debts to the NHS.
SXB was a Malian national with two daughters. Her eldest daughter lived in Mali but her younger daughter, a British citizen lived with SXB in the UK. SXB was subjected to female genital mutilation in Mali and claimed asylum on arrival to the UK in June 2014. Her claim was refused and after a period in detention she started a relationship with a man. She suffered several miscarriages and a still birth as well as physical and emotional abuse. SXB received NHS treatment in respect of the miscarriages, the still birth, antenatal and maternity care. She had an NHS debt of around £13,000 for this care. In March 2021, SXB and her baby daughter were stopped at Heathrow Airport on return to the UK and detained for about six hours before release. In March 2022, SXB and her daughter were stopped at the UK border control point at the Eurostar Terminal in Paris. On both occasions SXB was told this was because of the NHS debt.
The claimants challenged: (a) their examination and detention at UK border control points at airports and the Paris Eurostar Terminal; and (b) the Secretary of State’s unpublished policy on the use of the examination and detention powers in relation to those with limited leave to remain with outstanding NHS debts.
There were four grounds of challenge:
- 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.
- Claimants were stopped and detained pursuant to an unpublished policy directing Immigration Officers to stop and detain individuals with NHS debts for the purpose of taking up-to-date contact details and passing these on to the relevant NHS Trust.
- Such purported powers to stop and detain could be exercised without the Immigration Officer having any reason to believe or suspect the person had done anything justifying the curtailment or cancellation of their leave and they were not accompanied by sufficient safeguards.
- Given that the grounds on which these powers could be exercised were discriminatory, and in the absence of any consideration of the equality impacts, the Secretary of State was in breach of her duty under s. 149 of the Equality Act 2010 to have “due regard” to the need to eliminate discrimination.
In evidence the claimants’ solicitor provided numerous other examples of individuals with limited leave to remain in the UK being detained and examined about NHS debts when re-entering the UK.
The Secretary of State’s evidence detailed that secondary care by the NHS is only provided free to those ordinarily resident in the UK or who qualify for an exemption from charges. NHS Trusts notify the Home Office if an invoice for treatment or care is not paid within two months of issue. Part 9.11.1 of the immigration rules states that NHS debt above £500 (since 6 April 2016, or £1,000 before then) is a discretionary ground for refusal of entry or leave to remain in the UK. The debt is also added as a “warning marker” to a database shared with government departments and public authorities and individuals subject to a warning marker may be stopped at the border. Even if an individual has been granted leave to enter or remain in the UK the warning markers continue to serve a purpose as they could be relevant to future applications. However, this should not mean people are detained or prevented from re-entering the UK when they have a valid grant of leave.
The Secretary of State set out her approach to NHS debts in a previous case, JTW & SBF, as follows:
“In relation to entry clearance holders specifically, before granting entry clearance, an entry clearance officer will have checked the Home Office records, but it is possible that the information on NHS debts may have been entered since they made the visa application. If these persons are encountered and there is evidence of them making false representations to obtain the visa, or there is evidence of a change of circumstances since the visa was issued, permission to enter must be refused. Persons 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. The person can be reminded that the outstanding debt may prevent any further leave being granted.”
Having considered law, guidance and instructions the Court was clear that failure to pay an NHS debt is a ground for refusing an application for entry clearance, permission to enter or permission to stay, 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, or that circumstances or the applicant’s purpose in entering/staying have changed. None of these was the case here.
Discussion
There was no dispute that the claimants had been detained and the claimants conceded that initially, their detention was lawful, up until the officer realised that the warning marker related only to NHS debt. From this point it was for the Secretary of State to show that detention had been lawful.
The policy document NHS debtors, version 6.0 was likely to have informed the approach of Border Force staff to those with markers for NHS debts. This document failed to tell staff that the only basis for cancelling leave in connection with an NHS debt is where false representations have been made or failure to disclose relevant facts on a previous application for leave. The policy document also suggested that taking contact details and giving advice about the consequences of not paying off NHS debt were among the lawful purposes for which a passenger may be examined and detained. This, taken together with evidence relied upon by the claimants and the Secretary of State’s evidence, seemed to establish that a practice of detaining returning residents for varying periods in order to examine them about their NHS debts existed.
In relation to the lawfulness of the policy NHS debtors, version 6.0, the Court considered that people who have to interpret and apply the law sometimes make legal errors. Where a policy concerns the exercise of powers of detention there is a powerful public interest in the early identification of errors, so as to avoid unlawful detention. Where a policy is not published, the danger is that practices will develop, which have not been “transparently avowed”. This may result in large numbers of people being unlawfully detained before the practice can be identified and the illegality exposed. This seems to have happened here. The practice of detaining returning residents was only identified through discussion between solicitors and immigration practitioners each representing no more than a few clients and the policy was only disclosed in the course of this litigation.
R (A) v Secretary of State for the Home Department [2021] UKSC 37 identified three situations in which a policy can be unlawful:
- 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;
- where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and
- where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so 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 unpublished NHS debt policy was phrased in a misleading way by saying that “passengers with continuing leave would not normally be refused entry for an outstanding NHS debt”. This implied that the existence of an NHS debt may, in some cases, be sufficient grounds for cancellation of leave, which it was not. The policy also told officers that taking contact details and giving advice about not paying NHS debts were permissible purposes for detaining people, which was again not the case.
Chamberlain J concluded: “Once [the policy] 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. By that time, however, it is likely that it had been applied to a very large number of people. It would have been much better for all concerned if the policy had been published and its illegality recognised earlier.”
Chamberlain J held that MXK, SXB and their children were held by officers without justification and that the policy was unlawful. He also held that the Secretary of State had breached her duty to consider the impact of the policy on groups protected under the Equality Act 2010, as women were known to be disproportionately impacted by NHS charges.
Chamberlain J said that “if the examination and detention powers had been considered, those responsible for the formulation of policy about the exercise of those powers would have had to focus on the question of whether a practice of detaining returning residents for varying periods for examination about NHS debts could be justified, given its disproportionate impact on women and any other groups disproportionately affected”.
Evidence showed that equality impact was considered by the Department of Health in 2011, when the policy of charging for NHS services was under consideration and by the Secretary of State in 2011, when the policy of making NHS debts relevant to certain immigration decisions was under consideration. Also, in 2013 and 2015 the Department of Health reviewed equality impact in the context of reviews of the policy of charging for NHS services. Chamberlain J said, “it is important to bear in mind that the obligation imposed by s. 149 applies to each public authority separately in the exercise of its functions”. Although an equality analysis undertaken for the purposes of one function may be useful to others when considering the equality impacts of a related function, the focus must always be on the public authority whose decision is under challenge and the consideration given by that authority to the exercise of its functions.
In this case, the question was therefore whether the Secretary of State has given substantial and rigorous consideration to the equality impacts of her use of the examination and detention powers in Sch. 2 of the Immigration Act 1971. Therefore, the EIAs undertaken by a different department in 2011, 2013 and 2015 in relation to a different policy (charging for NHS services) were of little relevance. The EIA undertaken by the Home Office in 2011 did not specifically address the equality impact of the exercise of examination and detention powers. Nor did an information-gathering exercise in 2022, which reported that NHS debtors were disproportionately female.
There was no evidence to show that the Secretary of State or any official had ever considered the equality impacts of her use of the examination and detention powers in Sch. 2, let alone kept those impacts under continuing review.
It was not possible to say what the outcome would have been if equality impacts had been taken into account. Certainly, it was not possible to conclude that it was highly likely that the outcome would not have been substantially different: R (Buckley) v Bath and North East Somerset Council [2018] EWHC 1551 (Admin). Chamberlain J observed that the policy had in fact been modified as a result of this litigation which in itself was fatal to any argument relying on s. 31(2A) of the 1981 Act.
Grounds 1, 2 and 4 succeed and it was considered neither necessary nor appropriate to determine ground 3.
Comment
Although this case does not relate to adult social care it explores some themes that are very relevant. The effect of not publishing a policy on its lawfulness whether in the exercise of a power such as detention (for instance in a mental health or deprivation of liberty context) or the application of a duty (such as local authority application of the Care Act 2014) is just as relevant. As with this case it is easy to see that this may go undetected with many people representing small numbers of affected clients. Although failing to publish a policy doesn’t in itself negate the lawfulness of that policy, the commitment to transparency in publishing it clearly provides safeguards in identifying areas where the policy might not meet the tests set out in R (A) v Secretary of State for the Home Department [2021] UKSC 37.
The other area of relevance drawn out in this case is that of equality impact. Although there is no specific requirement to produce a formal assessment, the lack of one makes it difficult to demonstrate that the equality duty has been discharged “in substance” and “with rigour”. However, what this case makes clear is that an assessment of impact made by one department in relation to a particular application of policy may not be relevant to its application in a different context by a different department or agency. There is therefore a need to ensure that any equality impact assessment is relevant to the specific nature of the context in which a particular policy will be applied.