MXK & Ors., R (on the application of) v Secretary of State for the Home Department

Immigration examination and detention powers may be used only for the statutory purposes specified in Schedule 2 to the Immigration Act 1971. An outstanding NHS debt is not itself a ground for cancelling or curtailing extant leave. Once an officer discovers that a warning marker relates only to NHS debt, continued detention must be directed to determining whether the leave was obtained through false representations or non-disclosure of relevant facts, or another permitted statutory ground.

A policy for officials exercising detention powers is unlawful if it misstates or materially omits the legal limits of those powers. Such a policy will ordinarily require publication unless compelling public-interest reasons justify non-publication. The public-sector equality duty requires the responsible public authority to consider rigorously the equality impacts of its own use of the detention powers.

The claimants, foreign nationals with limited leave to enter or remain, challenged their examination and detention on returning to the United Kingdom, including at juxtaposed border controls, after NHS debts had been recorded against them. They also challenged the unpublished policy governing examination of passengers with NHS debt markers.

They alleged that the examinations and detentions were undertaken for an improper purpose, pursuant to an unlawful unpublished policy, contrary to Articles 5 and 8 of the ECHR, and in breach of the public-sector equality duty under section 149 of the Equality Act 2010. The central issues were whether the statutory powers authorised the relevant detention, whether the policy was lawful, and whether the Secretary of State had complied with the equality duty.

1. Ground 1 succeeded. The Secretary of State bore the burden of proving lawful justification once detention was established. The initial checks to identify the reason for a warning marker were lawful. Thereafter, however, the examinations were not directed to determining whether the claimants had made false representations or failed to disclose relevant facts in applications for leave, or to another purpose authorised by paragraphs 2 or 2A of Schedule 2 to the Immigration Act 1971. The claimants were therefore unlawfully detained for the periods identified in the judgment. The detention of the accompanying children was unlawful to the same extent.
2. Ground 2 succeeded. The policy NHS debtors, version 6.0 wrongly implied that an NHS debt could itself justify cancellation of continuing leave. It omitted the only relevant purposes for examining a returning resident in relation to an NHS debt and positively authorised taking contact details and giving debt-payment advice during detention. Applying R (A) v Secretary of State for the Home Department and [2021] UKSC 37, the policy could induce unlawful conduct and was materially misleading. Its non-publication supplied an additional reason for unlawfulness under the rule-of-law principles explained in R (Lumba) v Secretary of State for the Home Department, [2011] UKSC 12.
3. Ground 3 was not determined. The broader challenge to the compatibility of Schedule 2 detention powers with Articles 5 and 8 of the ECHR was unnecessary to resolve and was better considered in a case where it affected the outcome, particularly while the policy was being rewritten.
4. Ground 4 succeeded. The Secretary of State had not shown that she had considered, with substance and rigour, the equality impacts of her own use of the Schedule 2 examination and detention powers. Equality assessments undertaken by another department concerning NHS charging, and other material concerning NHS debtors, were at most tangentially relevant. The failure to perform the required analysis prevented reliance on section 31(2A) of the Senior Courts Act 1981.
5. Grounds 1, 2 and 4 succeeded. The court invited submissions on the proper form of relief.

First-instance judicial review. No prior appellate decision is stated in the judgment.