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

The claimants challenged stops, examinations and short detentions at the border under paragraphs 2, 2A and 16 of Schedule 2 to the Immigration Act 1971 and the Home Office policy on dealing with persons with outstanding NHS debts. The court held that where a warning marker on the Warnings Index related only to an NHS debt, continuing examination and detention could only lawfully be for the limited statutory purposes in paras 2 and 2A (for example to determine whether leave should be cancelled because it was obtained by false representations). The court found on the evidence that in the claimants' encounters the examinations continued after it was apparent the flag related only to an NHS debt, and during that period the examination and detention were for purposes other than those permitted by Sch. 2 and accordingly unlawful.

The court also held that the unpublished operational guidance titled "NHS debtors, version 6.0" was unlawful. The guidance (i) used wording suggesting that an NHS debt could "normally" justify refusal or cancellation of leave, (ii) failed to identify the sole statutory purposes for which returning residents may be examined in relation to NHS debt, and (iii) positively authorised practices (taking up-to-date contact details and passing them to NHS trusts) that were inconsistent with the statutory limits on examination and detention; read objectively it was capable of inducing unlawful conduct. Because it was unpublished, the defects were more significant. Finally, the court found the Secretary of State in breach of the public sector equality duty under section 149 of the Equality Act 2010 in relation to the exercise of the Schedule 2 powers, because there was no evidence that the Home Office had considered the equality impacts of detaining returning residents for examination about NHS debts.

Background and parties:

• The claimants are non-UK nationals with limited leave to enter or remain who owe sums to NHS trusts for secondary care. They and their British children were stopped, examined and detained on return to the United Kingdom (or at a juxtaposed control) because of warning markers on the Home Office Warnings Index arising from unpaid NHS debts.
• The defendant is the Secretary of State for the Home Department. Permission for judicial review was granted on the papers and the claims were heard on 10-11 May 2023.

Nature of the application and relief sought:

• The claimants sought declarations and relief challenging (i) the lawfulness of their examination and detention under paras 2, 2A and 16 of Schedule 2 to the Immigration Act 1971, and (ii) the lawfulness of the Secretary of State’s unpublished policy and guidance on the treatment of persons with outstanding NHS debts (notably the document "NHS debtors, version 6.0").

Issues framed by the court:

1. Whether the claimants were detained pursuant to a misdirection of law or for an improper collateral purpose (Ground 1).
2. Whether the unpublished Home Office policy and guidance on NHS debtors was unlawful because it approved detention/examination for impermissible purposes and was unpublished (Ground 2).
3. Whether the Schedule 2 powers meet the Convention requirement of being "prescribed by law" (Ground 3) — the court expressly declined to decide this ground as unnecessary to the outcome.
4. Whether the Secretary of State breached the public sector equality duty in section 149 of the Equality Act 2010 by failing to consider equality impacts of using the Schedule 2 powers in relation to NHS debtors (Ground 4).

Court’s reasoning and disposition:

• The court analysed the statutory purposes of paras 2 and 2A of Sch. 2 and concluded that once it was apparent a warning marker related only to NHS debt the permissible purposes of examination of a returning resident were limited (for example, to determining whether leave should be cancelled for false representations or non-disclosure). Short detention to check back-office systems to identify the reason for a warning marker was lawful at the outset, but continued detention and examination for the purposes of taking contact details, discussing payment or reminding the passenger of consequences was not within the statutory purposes and was therefore unlawful.
• On the facts the judge found that, in the claimants’ stops, the officers would have discovered within a short time that the marker related only to NHS debt, and thereafter the detention and examination continued without focussing on the statutory cancellation grounds; accordingly the claimant detentions were unlawful for specified short periods (30 minutes, 15 minutes and 25 minutes as found in the judgment) and the accompanying children were also unlawfully detained.
• The unpublished guidance "NHS debtors, version 6.0" was unlawful because its wording misled staff as to permissible purposes of examination and detention, and positively authorised ancillary actions inconsistent with the statutory limits; publication would have exposed and prevented the practice earlier and the guidance was withdrawn and amended in response to litigation.
• The Secretary of State had not shown that she or officials had given substantial and rigorous consideration to the equality impacts of exercising Schedule 2 powers in relation to NHS debtors; prior equality work by other departments or in relation to charging policy did not discharge the duty to consider equality effects of the Home Office’s own detention/examination functions. The court therefore found a breach of section 149 of the Equality Act 2010.

The court granted relief on grounds 1, 2 and 4 and declined to decide ground 3; submissions on the precise form of relief were to be invited.

This is a first-instance judgment. The court found that the claimants were initially lawfully stopped while officers checked the reason for a warning marker on the Warnings Index, but in each case the examination and detention continued after it was apparent the marker related only to an NHS debt. That continued detention and examination were for purposes other than those permitted by paragraphs 2 and 2A of Schedule 2 to the Immigration Act 1971 and were unlawful. The unpublished operational guidance "NHS debtors, version 6.0" was unlawful because it was misleading and capable of inducing officers to act outside the statutory purposes for examination and detention; its unpublished status compounded the unlawfulness. The Secretary of State also breached the public sector equality duty under section 149 of the Equality Act 2010 by failing to consider the equality impacts of exercising the Schedule 2 powers in relation to NHS debtors. Ground 3 (compatibility of Sch. 2 with Article 5/8 ECHR) was not determined as it was unnecessary to the outcome.