Felipe Kenzo Masuko Hotta v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 09 December 2021 |
| Neutral Citation | [2021] EWHC 3359 (Admin) |
| Docket Number | Case No: CO/3148/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3359 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/3148/2021
The Queen on the application of
and
Jamie Burton QC, Adam Wagner, Juliet Wells and Cian Murphy (instructed by Excello Law Ltd) for the Claimants
Julia Smyth and Yaaser Vanderman (instructed by Government Legal Department) for the Defendant
Hearing date: 9/12/21
Judgment as delivered in open court at the hearing
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Note: This judgment was produced for the parties, approved by the Judge, after using voice-recognition software during an ex tempore judgment.
Introduction
This is a renewed application for permission for judicial review. Permission was refused on the papers by Jay J on 13 October 2021. The target of the challenge is the Managed Hotel Quarantine (MHQ) scheme, whose design is found in Schedule 11 to the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 ( SI 2021 No.582) (“the 2021 Regulations”). The 2021 Regulations were made on 14 May 2021 and came into force on 17 May 2021. They have been amended at various stages subsequently. Also amended have been the practical arrangements and, in particular, for the purposes of this case, a list of countries known as the “Red List” countries.
The substance of the claim for judicial review, for which permission is sought, is that the MHQ scheme violates the Article 5 ECHR rights of those who are subjected to it. A particular focus of the proposed claim for judicial review is to identify the category of travellers who come to (or back to) England from Red List countries into the MHQ scheme, and who are required to remain within the scheme, notwithstanding that they can demonstrate that they have been vaccinated. Reference is made in the papers to Ireland and Norway who it is said – which I accept for the purposes of this hearing – have similar schemes but in applying it draw the distinction between those who are, or are not, demonstrably vaccinated.
The 2021 Regulations were described in detail in the judgment of the Divisional Court in the case of R (Manchester Airports Holdings Ltd) v Secretary of State for Transport [2021] EWHC 2031 (Admin) [2021] ACD 114. Set out in that judgment is a detailed description of the design of the statutory scheme for the Green, Amber and Red List, to which description I invite attention. It is neither necessary nor proportionate for me to traverse the same ground in this permission judgment in the present case.
The “methodology” for identifying Red List countries is described at §36 of the Manchester Airports judgment, by reference to the evidence that was before the Divisional Court in that case. As Ms Smyth for the Defendant emphasises, at the heart of the “risk assessment” methodology that lies behind identification of the Red List countries, and lies behind the measures which arise in relation to those arriving from a Red List country, are concerns relating to “Variants”, whether they have been identified as “Variants of Concern” or “Variants under Investigation”. One specific concern relates to the risks arising out of potential imperviousness to vaccination of such Variants.
The Khalid case
Front and central to the present case is a judgment of Linden J, delivered on 14 July 2021, in the case of R (Khalid) v Secretary of State for Health and Social Care [2021] EWHC 2156 (Admin). That judgment, which (like the Manchester Airports judgment) is in the public domain (at www.bailii.org), has the citation [2021] EWHC 2156 (Admin). In the Khalid case, Linden J was concerned with what, in my judgment, and beyond argument, was in substance the same claim as is now before me. In Khalid, it was one of three grounds that were being advanced, and on which Linden J was being asked to grant permission for judicial review. Part of the claim was that the MHQ scheme, by reference in particular to its design under the 2021 Regulations, violates the Article 5 rights of those who are subjected to the scheme. That means being subject to the 10 days' quarantine, in a designated hotel (Sch 11 §10), restricted to their individual rooms (Sch 11 §14), having arrived here from a Red List country (or not having been in a non-Red List country for a period of 10 days, after leaving a Red List country, prior to their arrival: Sch 11 §1). Linden J explained ( Khalid §12) the aim of the scheme, being to reduce the risk posed by people arriving into England and in particular associated with the Variants to which I have already referred. He set out his own description of Red Listing and the process for it ( Khalid at §§13–14). I am told there are currently some 11 countries on the Red List, arrival from which engages the MHQ quarantine scheme. I am also told that in June of this year there were some 50 countries on that list.
The Third Claimant's evidence
The practical experience of being subjected to the MHQ scheme is brought to life in the moving witness statement of the Third Claimant in this case. She describes how, being a regular visitor to her parents in South Africa, she received a call at the end of July 2021 about the seriously deteriorating health of her father. She was aware of the Red List and the 10-day MHQ scheme. She booked flights to South Africa, to see her dying father, returning to England and underwent quarantine under the scheme. During her period of quarantine, her father passed away. She describes – in detail that has assisted me to understand the human implications of this case – what it was like to be in quarantine. That included restrictions (as to which see Sch 11 §11–13, 17–18) which meant not being able to associate with her husband, who “dropped off some groceries” and could be seen beyond a fence from the exercise yard (“I … spoke to my husband on the phone, while looking at him from a distance through a gap of a few inches”). She explains the practical implications of the regime, including as to the limited opportunity – in difficult surroundings – to exercise (Sch 11 §13(1)(c)). She describes the “discomfort” and “intimidation” that she experienced (“As least once a day, I was made to feel either uncomfortable, intimidated, or like a prisoner”). Ultimately, this is not a challenge which turns on distinctions between different experiences of different individuals. As Mr Smyth rightly points out, this is a challenge to the MHQ scheme and the way that it has been designed and operates. But I accept Mr Burton QC's submission that the Third Claimant's evidence is relevant when the Court is considering the realities of the scheme and its operation.
Request for a hybrid hearing
Before I turn to deal with the legal issues which are my responsibility at this hearing, I need to explain the position, and give some reasons, in relation to a request regarding this hearing with which I dealt on the papers. I told the parties that I would embody this feature, and my reasons, in any ruling at this hearing, as I now do. Having made arrangements for this case to be listed in open court as an in-person hearing, as it has been, a request was made by the Claimants' solicitors for the lead solicitor (whose witness statement appears in the bundle in support of the claim) to be able to observe the hearing from a designated office address in Brazil. That was in circumstances where, I was told, he had needed to travel to Brazil in relation to other work and it was not practical for him to physically return. There was no request for an adjournment. What was sought was a direction for a hybrid hearing. I interpose that my attention was very properly drawn by the Claimants' representatives to Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2167 (QB) [2020] 4 WLR 122. I refused that request. As I explained, I did so for these reasons. The representations which had been made did not satisfy me that I had the power to make the direction that was sought. This was a hearing in court. This was not a situation of a witness giving evidence from overseas by a live link (cf. Gubarev at §§9, 13), for which provision is made in CPR32.3. Nor was this a situation involving a location in England and Wales which the court could direct be “designated as an extension of the court” (cf. the order set out in Gubarev at §20(3)). Independently of the question of whether I have the power, I concluded that – in any event – the representations made did not satisfy me that it would be appropriate, in the exercise of my judgment and discretion, to grant that request. There was no obvious COVID-related imperative. The situation where an instructed solicitor travels overseas is not a novel one. The request appeared to me to be unprecedented and unjustified.
Linden J's conclusions in Khalid
The conclusions to which Linden J came in relation to the Article 5 challenge to the MHQ scheme were as follows. He concluded (see Khalid at §34) that it was not properly arguable that the scheme violates the Article 5 rights of those who are subjected to it. He analysed the Article 5 arguments by reference to 3 stages which it is common ground are the correct three stages. The first (see §§35–42) was the question of whether there is a deprivation of liberty. If not, Article 5 is not applicable. The second (see §43) was the question of whether the relevant prescribed limb, for Article 5...
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