A judgment in the High Court details multiple examples of unlawful detention of individuals re-entering the UK because an unpublished Home Office policy wrongly suggested officers had the power to stop, detain and question individuals who have unpaid NHS debt. The case is MXK & Ors, R (On the application of) v Secretary of State for the Home Department [2023] EWHC 1272 (Admin).

Background

MXK and SXB are two mothers. Both were liable to pay for NHS treatment because of their immigration status at the time. On separate and multiple occasions across 2021 and 2022, MXK and SXB were stopped, detained and questioned about their NHS debts when re-entering the UK with their children.

The provision of secondary care by the NHS is free only to those ordinarily resident in the UK or those who qualify for an exemption from the charges, as a significant number of visa holders do. NHS Trusts notify the Home Office if an invoice for treatment or care is not paid within two months of its issuance. Part 9.11.1 of the immigration rules states that NHS debt above £500 (since 6 April 2016, or £1,000 before then) counts as a discretionary ground for refusal of entry clearance or leave to remain in the UK.

The debt is also added as a “warning marker” to a database of information shared with government departments and public authorities in case it is of interest. Individuals subject to a warning marker may be stopped at the border. Warning markers continue to serve a purpose even if an individual has been granted further leave to enter or remain in the UK since the marker was added because it could be relevant to future applications. But this does not mean that they should be detained or prevented from re-entering the UK when they have a valid grant of leave.

Evidence filed in the course of this case revealed a practice at the border of detaining and examining those with leave to remain in the UK about their NHS debt. Examples of this practice are detailed in the judgment in paragraphs 13-21. But NHS debt alone is not a sufficient reason to prevent an individual’s re-entry to the UK. The policy in place providing scope for their detention was not published and therefore unfortunately received no scrutiny.

The judgment

The Secretary of State accepted that the mere fact of an extant NHS debt is not a sufficient basis to cancel or curtail leave to enter or remain in the UK. But she submitted that the officer could lawfully stop someone for examination on the basis that they had a warning marker (even if it was simply a warning marker for NHS debt), to determine whether there were grounds for cancellation not connected to the NHS debt, such as a change in circumstance.  

The unpublished NHS debt policy is phrased in a misleading way. By saying that “passengers with continuing leave would not normally be refused entry for an outstanding NHS debt”, the policy implies that the existence of an NHS debt may in some cases be sufficient grounds for cancellation of leave, which it is not. The next sentence in the policy tells officers that taking contact details and giving advice about the consequences of not paying NHS debts are permissible purposes to detain. This is not the case.

The judge held that MXK, SXB and their children were held by officers without justification and that the policy was unlawful.

The policy of allowing detention for NHS debt was also “capable of inducing an officer to breach his legal obligations”. A policy enabling an officer to detain someone for the sole reason of NHS debt gives the impression that the permitted purposes of detention and examination are broader. There was no evidence to show that officers were aware that the only lawful purpose of examination in such cases is to determine whether the individual has made false representations or failed to disclose relevant facts on a previous application for leave to enter or remain in the UK.

The Secretary of State had breached her duty to consider the impact of the policy on groups protected under the Equality Act 2010, as women are known to be disproportionately impacted by NHS charges. The judge said that

“if the examination and detention powers had been considered, those responsible for the formulation of policy about the exercise of those powers would have had to focus on the question of whether a practice of detaining returning residents for varying periods for examination about NHS debts could be justified, given its disproportionate impact on women and any other groups disproportionately affected”.

The judge concluded:

“Once [the policy] was disclosed, and submissions made about it, the errors in the policy were recognised by the Secretary of State and the policy was withdrawn or amended. By that time, however, it is likely that it had been applied to a very large number of people. It would have been much better for all concerned if the policy had been published and its illegality recognised earlier.”

The policy has now been withdrawn and has apparently been rewritten. People who interpret, draft and formulate the law and policy sometimes make legal errors. Particularly where policy concerns the power to detain, there is a powerful public interest in the early identification of any errors to avoid unlawful detention and minimise the liability of the detaining authority. It is concerning that at no point during this case, the Secretary of State conceded that this policy (or future policies) should have been published to avoid harmful and disruptive errors resulting from a lack of oversight and scrutiny.