Felipe Kenzo Masuko Hotta & Ors, R (on the application of) v Secretary of State for Health and Social Care

At the permission stage of judicial review, a High Court judge may follow an earlier refusal of permission on a materially identical and unarguable claim unless there is a powerful reason to depart or the earlier conclusion is shown to be wrong. The court may nevertheless undertake an independent assessment.

Article 5(1)(e) ECHR is not confined to persons individually identified or assessed as infectious. It may encompass precautionary restrictions imposed on a group to prevent the spread of infectious disease. Any resulting deprivation of liberty must still satisfy necessity, proportionality and protection against arbitrariness. In reviewing policy choices, the court must not substitute its own preferred scheme for that of the Government.

The claimants sought permission to judicially review the Managed Hotel Quarantine scheme established by Schedule 11 to the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021. They alleged that requiring travellers arriving from Red List countries to quarantine breached Article 5 ECHR, particularly where they could demonstrate vaccination.

Permission had been refused on the papers by Jay J. The court considered the effect of the earlier permission decision in R (Khalid) v Secretary of State for Health and Social Care, which concerned substantively the same Article 5 challenge. The issues included arguability, the scope of Article 5(1)(e), necessity and proportionality, standing and delay.

1. Permission filter. A judge dealing with permission for judicial review may follow an earlier High Court refusal of permission on grounds of unarguability where the later claim is materially identical, unless there is a powerful reason to depart or the judge is convinced that the earlier conclusion was wrong. That approach is available notwithstanding that permission decisions are not generally binding. The court nevertheless undertook an independent analysis.
2. Article 5(1)(e). Assuming that the Managed Hotel Quarantine scheme involved a deprivation of liberty, it was beyond reasonable argument that the scheme fell within Article 5(1)(e). The provision is not limited to people identified as infectious, or individually assessed as infectious or as posing a high individual risk. Its wording and purpose encompass protective and precautionary measures directed at circumstances affecting a group.
3. Necessity and proportionality. Article 5(1)(e) does not give public authorities a blank sheet of paper. Any deprivation must be lawful, non-arbitrary, necessary and proportionate. The court applied the considerations identified in R (Khalid) v Secretary of State for Health and Social Care, including the short duration of quarantine, the limited regulatory exceptions, the choices involved in travelling to and returning directly from Red List countries, Government advice against such travel, and the alternatives relied upon by the claimants.
4. The relevant question was whether the scheme was unjustified by reference to Article 5 standards, having regard to the latitude necessarily afforded to Government and policy-makers. Judicial review does not permit the court to substitute the scheme it would have designed. The proposed alternatives of home isolation or quarantine limited to unvaccinated returnees did not provide a realistic less intrusive means of effectively achieving the public-health objective.
5. The First and Second Claimants were not victims for Human Rights Act purposes because they had never been subjected to the scheme. The Third Claimant would have satisfied the victim requirement. The delay objection failed: time began when the claimant became affected by the measure, and the claim was in any event brought promptly.
6. The request for a hybrid hearing was refused. The court was not satisfied that it had power to make the requested direction and, independently, considered it inappropriate and unjustified. Permission for judicial review was refused because the claim was not arguable. The existing costs order remained undisturbed, and the judgment was certified as suitable for citation.

Permission for judicial review was refused on the papers by Jay J on 13 October 2021. This court refused the renewed application for permission.