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High Court says unpublished Home Office policy on NHS debt is unlawful

By Yang Peng

 

Today’s article looks at a recent case involving an unpublished Home Office policy which caused individuals to be unlawfully detained over NHS debts.

 

Keep reading to learn why the High Court decided the policy was unlawful and our thoughts on the case.

 

Background

 

MXK and SXB are two mothers who had unpaid NHS bills while having leave to remain as parents. On separate and multiple occasions throughout 2021 and 2022, they were stopped, detained, and questioned about their NHS debts when re-entering the UK with their children.

 

If an applicant who applies for entry clearance, permission to enter or permission to stay has failed to pay NHS charges which are at least £500 and fall under the National Health Service (Charges to Overseas Visitors) Regulations 2015, SI 2015/238, this becomes a discretionary ground for refusal of entry clearance or leave to remain in the UK. Additionally, the debt is recorded as a “warning marker” within a database shared with government departments and public authorities for potential relevance.

 

Consequently, individuals who are subject to a warning markers may undergo border stops. This includes the practice of detaining and examining individuals with leave to remain in the UK regarding their NHS debt. Regrettably, the policy that permits their detention was not published and, as a result, did not undergo any scrutiny.

 

There was great anticipation for the decision in the case of R (oao MXK and others) v Secretary of State for the Home Department (SSHD) on 26 May 2023. This case saw the Court make a judgement as to whether the unpublished policy of the SSHD regarding the use of examination and detention powers outlined in Schedule 2 of the Immigration Act 1971 (IA 1971) was deemed lawful.

 

R (oao MXK and others) v Secretary of State for the Home Department (SSHD)

 

This case concerned the legality of numerous examples of the detention of individuals re-entering the UK due to NHS debt. During the hearing, a large number of grounds and arguments was presented before the court held that MXK, SXB and their children were held by officers without justification and that the policy was unlawful.

 

The court found that there was no compelling reason for non-publication of the relevant policy. The Home Secretary was in breach of her duty under section 149 of the Equality Act 2010 (EqA 2010) to have ‘due regard’ for the need to eliminate discrimination. There was a clear absence of any evidence about consideration of whether such practice could be justified, in particular, given its disproportionate impact on women.

 

 

The court held the following in relation to some of the arguments presented by claimants:

 

  • the policy document failed to inform the Border Force staff that the only basis for cancelling leave in connection with an NHS debt is where the person has made false representations or failed to disclose relevant facts on a previous application for leave.
  • there was no evidence of any individual being asked questions relevant to whether they have made false representations or failed to disclose relevant facts in previous applications for leave.
  • there was no evidence that Border Force staff were aware that the only lawful purpose for examination in such cases is to determine grounds for cancellation, or that examinations were directed towards that purpose.
  • although the claimants were initially lawfully detained, their detention became unlawful as it was then conducted for a purpose not specified in IA 1971, Sch 2, paras 2 or 2A.
  • the policy was misleading as it failed to specify the sole purposes for examining and detaining a person with limited leave in relation to an NHS debt, creating the impression of broader permitted purposes.
  • The policy being unpublished further contributes to its unlawfulness.
  • there was no evidence to show that the Home Secretary or any official had ever considered the equality impacts of using examination and detention powers outlined in IA 1971, Schedule 2.

 

The above is a summary of the court’s judgement on some of the many grounds presented. The above means that individuals subject to a warning marker due to NHS debt may undergo a border stop but should not be detained or prevented from re-entering the UK when possessing a valid grant of leave. It is crucial to note that NHS debt alone is not a sufficient reason to prevent an individual’s re-entry to the UK.

 

The policy has now been withdrawn and reportedly rewritten. However, throughout the entirety of the case, the Secretary of State did not concede the policy (or any future policies) should have been published to avoid harmful and disruptive errors resulting from a lack of oversight and scrutiny.

 

Our comments

 

The findings in R (oao MXK and others) v SSHD shows that the Home Secretary’s unpublished policy and practice on the use of the examination and detention powers in Schedule 2 to the Immigration Act 1971 in relation to those with limited leave to remain with outstanding NHS debts is unlawful.

 

The judgment provides guidance on the grounds for cancelling leave in connection with an NHS debt and clarifies that any examination in relation to NHS debt must be directed towards establishing such grounds.  once the claimants have shown that they were detained, it is for the Home Secretary to show that there was lawful justification for the detention.

 

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