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Lawyers expose unlawful use of coercive powers by Home Office

By Bianca Castro >>

(1 June 2023)

A judge has credited lawyers for bringing to light unlawful government policy which detained women and their children over NHS debts.

Mr Justice Chamberlain, in finding the policy unlawful in MXK and ors v Secretary of State for the Home Department, said it was ‘at best, misleading in that it fails to identify the sole purposes for which they may examine and detain a person with limited leave to enter or remain in relation to an NHS debt – and in doing so gives the impression that the permitted purposes are broader’.

Bhatt Murphy represented the two mothers and their children, who were re-entering the UK when they were stopped, detained, and questioned. The firm has acknowledged the women’s ‘perseverance and courage’ after winning their High Court fight against the Home Office.

The women, identified as MXK and SXB, are foreign nationals with limited leave to enter and remain in the UK. MXK’s children are British citizens, as is SXB’s youngest daughter. The NHS debts they were questioned about arose from medical treatment which, because of their immigration status at the time, they were liable to pay for.

The practice of detaining returning residents in relation to NHS debts under the policy was ‘identified through discussion between solicitors and immigration practitioners each representing no more than a few clients’, the judgment noted.

The judge said: ‘The policy was only disclosed in the course of the litigation. Once it 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and submissions made about it, the errors in the policy were recognised by the Secretary of State and the policy was withdrawn or amended.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.’

Although there is no legal obligation to publish a policy, Chamberlain said benefits include ‘that the individual to whom the policy is applied can challenge an adverse decision’.

He noted that lawyers, judges and those who formulate and draft policy who have to ‘interpret and apply the law sometimes make legal errors’, and publishing policy – especially that which exercises detention powers – had a ‘powerful public interest in the early identification of any errors…to avoid unlawful detention and minimise the liability of the detaining authority’. 

In his 26-page judgment, he added: ‘If such a policy is not published, there is a danger that a practice will develop, which has not been transparently avowed and which can only be discerned by piecing together the accounts given by a large number of individuals to their respective lawyers.

‘The result may be that large numbers of people are unlawfully detained before the practice can be identified and the illegality exposed.’

He found that MXK’s examination and detention were ‘initially lawful’ but MXK was then unlawfully detained for 30 minutes with her two children in September 2021 and for 15 minutes in March 2022 with her youngest child.

He added: ‘The Secretary of State did not dispute that [the children] were so young that they could not proceed without their mother. It follows that by unlawfully detaining MXK the Secretary of State also unlawfully detained [her children].’

He also found that SXB and her child’s detention in March 2022 was ‘lawful at its inception but became unlawful after 5 minutes…for the last 25 minutes that detention was unlawful’.

Janet Farrell, Bhatt Murphy solicitor for the claimant families, said: ‘The detention of our clients was humiliating and distressing. This judgment shows how vital it is that policies concerning the use of coercive powers such as detention are published so victims can hold the government to account in court in a meaningful way.

‘As well as these claimants, we are acting for many other vulnerable families who have been subject to multiple unlawful detentions over a period of many years under these same powers. We are pursuing legal action on their behalf, seeking declarations that they have been unlawfully detained, and damages. It is only through our clients’ perseverance and courage that this secret policy has been revealed and declared unlawful.’

The Home Office policy is currently being rewritten.

(Courtesy: The Law Society Gazette)