MXK, EH and HH v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] EWHC 1272 (Admin) |
| Docket Number | Case No: CO/238/2022 |
| Court | King's Bench Division (Administrative Court) |
The King on the application of
[2023] EWHC 1272 (Admin)
Mr Justice Chamberlain
Case No: CO/238/2022
CO/2194/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dan Squires KC and Shu Shin Luh (instructed by Bhatt Murphy Solicitors) for the Claimants
Nicholas Chapman and Richard Evans (instructed by the Government Legal Department) for the Defendant
Hearing dates: 10–11 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
MXK and SXB are foreign nationals with limited leave to enter and remain in the UK. Both are mothers of young children and have outstanding debts for medical treatment provided by NHS trusts at a time when, because of their immigration status, they were liable to pay for it. Both have been stopped, detained and questioned about their NHS debts when re-entering the UK with their children (the second and third claimants in MXK's case and the second claimant in SXB's case) after travelling abroad.
With permission granted on the papers by James Strachan KC, sitting as a Deputy High Court Judge, the claimants challenge:
(a) their examination and detention pursuant to paras 2 or 2A and 16 of Sch. 2 to the Immigration Act 1971 (“Sch. 2”):
(i) in MXK's case, on 4 September 2021 at Heathrow Airport and on 5 March 2022 at Luton Airport;
(ii) in SXB's case, on 19 March 2022 at the UK border control point at the Eurostar Terminal at the Gare du Nord in Paris; 1 and
(b) the Secretary of State's unpublished policy on the use of the examination and detention powers in Sch. 2 in relation to those with limited leave to remain with outstanding NHS debts.
There are four grounds of challenge:
(a) 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)
(b) The claimants were stopped and detained pursuant to an unpublished policy which apparently directs Immigration Officers (“IOs”) to stop and detain individuals with NHS debts for the purpose of taking up-to-date contact details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. Detention pursuant to this policy is unlawful because the policy approves the exercise of examination and detention powers for reasons other than those permitted by paras 2 and 2A of Sch. 2 and because the policy is unpublished: R (Lumba) v SSHD [2011] UKSC 12, [2012] 1 AC 245. (Ground 2)
(c) The powers to stop and detain in Sch. 2 to the 1971 Act 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)
(d) 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 Sch. 2, the Secretary of State is in breach of her duty under s. 149 of the Equality Act 2010 (“the 2010 Act”) to have “due regard” to the need to eliminate discrimination. (Ground 4)
The claimants' evidence
MXK
MXK is an Albanian national. She has 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. She received antenatal care from Newham University Hospital and gave birth at University College London Hospital. Her claim to be recognised as a victim of trafficking was refused, as was a claim for asylum, but she was granted 30 months' discretionary leave to remain. She applied to renew her leave before its expiry on 5 February 2016. The form did not ask about NHS debts, but the Home Office was aware of them. It nonetheless decided to extend her leave to remain for a further 30 months, because of her relationship with her British children. Her leave was extended again in January 2019, this time on the “10-year parent route” under the Immigration Rules. There was a further 30-month extension in February 2022. After the expiry of that leave, she hopes to apply for indefinite leave to remain.
MXK has travelled abroad eight or nine times since her first grant of leave, either to Albania or on holiday elsewhere. She says that she has been stopped on return at the airport (Heathrow, Stansted or Luton) every time. On each occasion apart from the first two, the reason given was that she owed debts to the NHS. The duration of the detention varied. On 5 September 2015, she recalls being detained for around three or four hours, when travelling with her baby daughter. They were held in a cordoned off holding area with no toilet or nappy changing facilities and without access to food. She remembers the officer telling her that she would be stopped every time she entered the UK while her NHS debt remained outstanding.
On 15 August 2021, MXK travelled with her three children to see her family. They arrived back at Heathrow Airport on 4 September 2021. The officer at the desk said that he was going to have to write a statement, which would take some time. MXK said she knew that she was being stopped because of her NHS debt. The officer directed her to a waiting area. MXK's 17-year old son was permitted to proceed, leaving MXK and her two young children EH and HH waiting. The only question the officer asked was whether there were any changes to her address. MXK confirmed that there were not and that her telephone number also had not changed. After some time, the officer told MXK that she was free to leave, she did not have to contact the NHS; they would contact her. MXK believes she was detained for around an hour.
On 5 March 2022, MXK and her youngest child HH were returning to Luton Airport after a trip to Albania. They had arrived at around 10am. The officer said they would have to wait while he did some checks. They waited for between 30 and 45 minutes. The officer came and asked the usual question: was she aware that she had an NHS debt? She replied that she was and the officer told her that she was free to go but she must get in touch with the hospital and arrange to repay the debt.
SXB
SXB is a Malian national. She has two daughters. The elder daughter lives in Mali with SXB's family. The younger daughter lives in the UK with SXB and is a British citizen. SXB was subjected to female genital mutilation (“FGM”) in Mali. She arrived in the UK on a visit visa in June 2014 and later claimed asylum. Her asylum claim was refused in July 2015 and her appeal dismissed in April 2016. After a period in immigration detention between December 2017 and June 2018, she started a relationship with a man. She suffered several miscarriages and a still birth. Her partner was physically and emotionally abusive towards her. In August 2019, he threw her out of the home they shared when she was 34 weeks' pregnant. She became homeless and was provided with accommodation by the local authority.
SXB received treatment from Guy's and St Thomas' NHS Trust in respect of the miscarriages and the still birth and antenatal and maternity care in respect of her daughter. She has a debt of around £13,000 for this care. In February 2020, SXB applied for leave to remain as parent of a British citizen child. The application form does not ask about NHS debts. SXB was granted 30 months' leave to remain until September 2022 with no condition restricting her recourse to public funds. This meant that she was able to apply for benefits for herself and her daughter. Following the grant of leave, SXB received a letter from Guy's and St Thomas' NHS Trust about making arrangements to repay the debt. Maternity Action wrote to the Trust on her behalf asking them to waive the debt, given that SXB is a victim of FGM. There has been no response.
In March 2021, SXB and her baby daughter ALK were stopped at Heathrow Airport on return to the UK from a trip to Mali. The officer asked her if she was aware that she had an NHS debt. She replied that she was. The officer told her to sit to one side and she did so. The officer then returned and took her to another area. He explained that he had been instructed by the Home Office to refuse her entry because of her NHS debt. She could not understand everything that was said, because her English is not fluent and there was no French interpreter. She tried to explain that Maternity Action was seeking to have the debt cancelled. SXB says that she and her daughter were detained for approximately six hours in a small cordoned-off zone. They were not offered any food. Her daughter was crying and getting very hungry. Her mobile phone battery had run down, so she could not contact anyone. She asked a female Border Force officer for water and food for her baby. The officer said she should have brought food with her, but then came back with croissants, which her baby daughter was too young to eat. She believes the detention lasted for about six hours.
In March 2022, SXB and her daughter went to Paris to visit SXB's sister, who was unwell. On 19 March 2022, on their way back home, they were stopped again at the UK border control point at the Eurostar Terminal at the Gare du Nord Station. They reached the immigration desk at about 7.30pm. SXB was asked to show a copy of her daughter's birth certificate. She showed the officer a copy of this on her phone and the...
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