Rapheael Olufemi Oluponle v The Home Office
[2023] EWHC 3188 (KB)
MXK & Ors., R (on the application of) v Secretary of State for the Home Department
26 May 2023
[2023] EWHC 1272 (Admin)
High Court
Two moms were wrongly stopped and questioned at the airport about their hospital bills. The government's secret instructions told border agents to do this, which is against the law. The government also didn't think about how this unfairly affected women. The court said the government was wrong.
Key Facts
- •MXK and SXB are foreign nationals with limited leave to remain in the UK, owing NHS debts.
- •Both were detained and questioned about their debts upon re-entry to the UK.
- •The claimants challenged their detention and the Home Office's unpublished policy on using detention powers for NHS debt recovery.
- •The Home Office policy instructed Border Force officials to obtain contact details and pass them to NHS trusts to aid debt recovery.
- •Multiple other cases of similar detentions were presented as evidence.
Legal Principles
Unlawful detention occurs if detention is for a purpose other than those permitted by statute.
Immigration Act 1971, Schedule 2, paras 2 and 2A
In unlawful detention claims, the defendant must prove lawful justification for detention.
Lumba v SSHD [2011] UKSC 12
A policy is unlawful if it positively authorises unlawful conduct or presents a misleading picture of the law.
R (A) v Secretary of State for the Home Department [2021] UKSC 37
Unpublished policies relating to detention powers may be unlawful due to lack of transparency.
Lumba v SSHD [2011] UKSC 12
Public authorities must have 'due regard' to the need to eliminate discrimination (Equality Act 2010, s. 149).
Equality Act 2010, s. 149
Outcomes
Grounds 1, 2, and 4 succeeded.
The claimants' detentions were unlawful after the officers realized the WI flags related only to NHS debt, as the detentions were not for purposes allowed by the 1971 Act. The Home Office policy was unlawful for authorizing unlawful conduct and being unpublished. The Secretary of State failed to demonstrate due regard for equality implications.
Ground 3 was not determined.
It was deemed unnecessary given the success on other grounds, and the complexity of the issue, especially considering the ongoing policy rewrite.
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