Rosina Davis, R (on the application of) v Secretary of State for the Home Department

This is a claim for judicial review by the Claimant, arising from her examination and detention at Heathrow Airport on 20 August 2023.

The Claimant is a Ghanaian Citizen who, on that date, had (and continues to have) limited leave to remain in the United Kingdom. I will set out the Claimant’s immigration history in greater detail later in this judgment. In brief, the Claimant first arrived in the United Kingdom in September 2004. She was granted limited leave to remain on a number of occasions, most recently (prior to 20 August 2023) on 16 January 2023. This renewed limited leave to remain was granted on family life grounds, on the basis that the Claimant was the primary carer for her son, who is a minor and a British Citizen. Three days later, on 19 January 2023, the Claimant’s application for leave to remain on a different basis was refused. The Claimant had applied for leave to remain under the EU Settlement Scheme (“EUSS”) as a “Zambrano” carer (a Third Country national parent who is the primary carer of a British national child). Limited leave to remain under the EUSS is more beneficial than “primary carer” limited leave to remain, because a person in the Claimant’s position with EUSS leave remain can become entitled to indefinite leave to remain (settled status) after five years rather than ten years. The refusal of leave to remain under the EUSS did not invalidate the Claimant’s pre-existing renewed limited leave to remain, which had been granted three days before.

As a result of the refusal of limited leave to remain on 19 January 2023, a “STOP” marker, had been added on the Defendant’s (“the SSHD’s”) Warnings Index computer system (“WI”) against the Claimant’s name. This STOP marker should have been removed from the WI in March 2023, when the Claimant had previously passed through Heathrow on her return to the UK from a different trip abroad. At that point, her leave to remain status will have been investigated and clarified by the Border Force Officer, as she was allowed to enter the United Kingdom. The STOP marker should have been removed, but, for reasons that cannot now be ascertained, this did not happen.

Upon her arrival at Heathrow Terminal 5 on 20 August 2023, following a holiday in Spain, the Claimant’s documents were reviewed by a Border Force Officer at the front desk (known as the “Primary Control Point” or “PCP”). The computer system notified the Border Force Officer that there was a STOP marker requiring further investigation. At that time, it was not possible for the matter to be investigated further at the PCP, and so the Claimant was taken to a Controlled Waiting Area some metres away and was asked to sit down. Border Force staff then consulted the WI system at a different terminal and satisfied themselves that the Claimant had current limited leave to remain, notwithstanding the refusal of leave on the EUSS basis. The Claimant was then told that she was free to go and left the airport. There is a dispute between the parties as to how long this process took. The Claimant says that a period of 47 minutes elapsed between being taken from the front desk to the Controlled Waiting Area and being told that she was free to go. The Defendant says that the period was 30 minutes. I will return to this dispute later in this judgment.

At the pre-action stage, and in the Summary Grounds of Defence filed and served in September 2024, the SSHD conceded that she had unlawfully detained the Claimant on 20 August 2023. At that stage, the SSHD accepted that the Claimant had not been detained in accordance with any policy, published or unpublished. This concession was withdrawn in the Detailed Grounds of Defence, which were filed and served on 14 February 2025. The SSHD now contends that the Claimant was lawfully stopped and detained on 20 August 2023. The SSHD submits that the relevant practice or policy that was then in place was lawful. This involved placing a STOP marker against the names of those who have been refused leave to remain. The SSHD accepted that this meant that a STOP marker would, in some cases, be placed against the names of persons who continued to be entitled to enter and remain in the United Kingdom by reason of a prior grant of limited leave to remain on a different basis. The SSHD did not dispute that, at the time with which this claim is concerned, the effect of the policy was that such persons would be stopped at the PCP at the port of entry and detained for further investigation, before being granted entry into the United Kingdom when their extant limited leave to remain was established.

However, the SSHD has emphasised that the practice has changed since the events of August 2023. As a result of improvements to computer systems, the necessary checks following a STOP marker resulting from a negative leave decision can now be conducted at the PCP. The SSHD says that this means that persons in the same position as the Claimant will not be “detained”. The SSHD says that the time spent at the PCP in the Arrivals Hall by those who arrive at a UK port is not a period of detention: detention takes place if, but only if, the person is required to move away from the PCP, to a Controlled Waiting Area or other location. In the circumstances to which these proceedings relate, that will no longer be necessary, as the checks at the PCP will show that the person has current limited leave to remain, notwithstanding the subsequent refusal on a different basis. Accordingly, the person will not be detained.

Permission to apply for judicial review was granted by Ritchie J on 29 September 2024. The SSHD was granted leave to withdraw her concession by Dove J on 16 May 2025.

Both parties rely, for different reasons, on the judgment of Chamberlain J in R (MXK and SSB) v SSHD [2023] EWHC 1272 (Admin) (“MXK”). This case was also concerned with the SSHD’s practice of placing STOP markers on the WI. In that case, the complaint was that the STOP markers, leading to the Claimants’ detention at the ports of entry, were placed on the WI because the Claimants owed NHS debts, even though the existence of these debts was not, and could not be, a reason to refuse entry to the United Kingdom, or to curtail or cancel leave to remain. Chamberlain J held that the practice of stopping and detaining persons with limited leave to remain in order to question them about their NHS debts was unlawful.

There are six grounds of challenge. I will use the numbering system that was used at the hearing. These grounds are:

Does the SSHD’s policy concerning the placement of markers for previous immigration refusals against an individual’s file on the WI lead to returning residents being stopped and detained for examination under Immigration Act 1971 Schedule 2 (“IA, Sch 2”) powers where those past refusals have no relevant bearing on their current leave to remain in a material and identifiable number of cases?

If so, is the policy unlawful? This is Ground 1A.

Further and /or alternatively, is the policy unlawful because it is unpublished? This is Ground 1B.

Was the Claimant’s examination and detention on 20 August 2023 unlawful?

Did the SSHD breach her own policy in failing to delete the relevant STOP marker relating to the Claimant prior to 20 August 2023?

Is Article 5 and /or 8 of the European Convention of Human Rights (‘ECHR’) engaged?

Are there sufficient constraints on the exercise of IA, Sch 2, to protect against arbitrary, disproportionate, or discriminatory usage and satisfy the legality requirements of Articles 5 and / or 8 ECHR?

Has the SSHD breached the Equality Act 2010 (“EA 2010”) section 149? This concerns the Public Sector Equality Duty (“PSED”).

The Claimant was represented before me by Dan Squires KC and Shu Shin Luh. The Defendant was represented by Samantha Broadfoot KC and Richard Evans. I am grateful to all counsel for their very helpful submissions.

Sections 3(1)(a) and (b) of the IA provide that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the Act, and that he or she may be given leave to enter or leave to remain either for a limited time or for an indefinite period.

IA, Schedule 2, sets out the powers that are granted to immigration officers (including Border Force Officers) to stop and detain a person arriving in the UK for the purposes of an examination.

Paragraph 2 of Schedule 2 provides, in relevant part:

“(1)

An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft… for the purposes of determining

(a)

whether any of them is or is not a British citizen; and

(b)

whether if he is not, he may or may not enter the United Kingdom without leave;

(c)

whether, if he may not (i) he has been given leave which is still in force, (ii) he should be given leave and for what period or on what conditions (if any), or (iii) he should be refused leave; and

(d)

whether, if he has been given leave which is still in force, his leave should be curtailed….”

Paragraph 2A of Schedule 2 deals with the examination at the port of entry of persons who have pre-existing leave to enter. Paragraph 2A provides, again in relevant part:

“(1)

This paragraph applies to a person who has arrived in the United Kingdom with leave to enter which is in force but which was given to him before his arrival.

(2)

He may be examined by an immigration officer for the purpose of establishing –

(a)

Whether there has been such a change in the circumstances of his case, since that leave was given, that it should be cancelled;

(b)

Whether that leave was obtained as a result of false information given by him or his failure to disclose material facts; or

(c)

whether there are medical grounds on which that leave should be cancelled

…..

(3)

He may also be examined by an immigration officer for the purpose of determining whether it would be conducive to the public good for that leave to be cancelled.

….

(5)

A person examined under this paragraph may be required by the officer or inspector to submit to further examination.

….

(7)

An immigration officer examining a person under this paragraph may by notice suspend his leave to enter until the examination is completed.

(8)

An immigration officer may, on the completion of any examination of a person under this paragraph, cancel his leave to enter.

….

(10)

A requirement imposed under sub-paragraph (5) and a notice given under sub-paragraph (7) must be in writing.”

Paragraph 16(1) of Schedule 2 provides that:

“(1)

A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.

The power to detain as part of the process of regulation of entry to the United Kingdom is, therefore, conferred by primary legislation.

There is no express statutory requirement that there be any minimum threshold grounds for suspicion before a person is detained for this purpose. However, the SSHD accepts that the common law and the ECHR impose limits on the exercise of the power to detain.

The version of paragraph 9.20 of the Immigration Rules, in force at the material time, provided for the cancellation of leave where there had been a change of circumstances or purposes as follows:

“9.20.1.

Entry clearance or permission held by a person may be cancelled where there has been such a change in circumstances since the entry clearance or permission was granted that it should be cancelled.

9.20.2.

Entry clearance or permission to enter held by a person on arrival in the UK may be cancelled where the person’s purpose in seeking entry is different from the purpose specified in their entry clearance.”

There is no significant dispute between the parties about the policy/practice that was in place in August 2023, when the Claimant was stopped and detained at Heathrow Airport. It is described in the witness statement of Timothy Brotherton, a Senior Policy Adviser in the Passenger Policy and Border Transformation Unit of the Home Office, dated 14 February 2025.

The matter at issue is perhaps more aptly described as an operational practice than a policy. However, for convenience, I will refer to it as a “policy/practice”.

The policy/practice, as it existed in August 2023, can be summarised as follows:

The searches that were conducted by Border Force Officers at the PCP were not limited to searches for negative immigration markers. A search of BX automatically checked several databases, including a check of the Government watchlists, that is, lists of individuals and documents of interest. Information on the watchlists, including the WI, informed the decision as to whether an individual can enter or travel to the United Kingdom, or can be granted leave to remain. They included a range of data, primarily focussing on security, immigration status, and criminality.

The impact that this policy/practice had upon those who, prior to their arrival at the port or airport, had, on different occasions, been granted leave to remain and refused leave to remain, can be considered by reference to two groups, differentiated by the order in which the grant and refusal of leave to remain had taken place.

Group 1 consists of those who had been refused leave to remain and had then subsequently been granted leave to remain. So far as Group 1 is concerned, the policy was that, generally speaking, the negative immigration marker that would have been generated at the time of the refusal of the leave to remain would be removed by the immigration officer who granted the subsequent leave to remain, at the time of such grant. Accordingly, in future, there would be no STOP marker in relation to such a person, and they would not be detained at the port of entry for further checks to be made.

It follows that there was no blanket policy/practice in force in August 2023 that required a Border Force Officer to stop a person and to detain them for further investigation, simply because they had had a previous immigration refusal.

Group 2 consists of those, including the Claimant, who had been granted leave to remain (which was still in force) but who had subsequently been refused leave to remain on a different basis. In such cases, a STOP marker would automatically be generated, and the person would be detained at the port of entry the next time they sought to re-enter the United Kingdom. Provided the system operated correctly, the negative immigration marker, and associated STOP marker, would then be removed following their first entry into the United Kingdom after the marker had been imposed, because the Border Force Officer would at that stage have satisfied themselves on further investigation that the person had valid leave to remain, and would have notified WICU to remove the negative immigration marker. Such a person would not be detained on future occasions on which they re-entered the United Kingdom whilst their valid leave to remain continued in force.

At the material time, there were a number of safeguards in place. Only registered, security-cleared, and approved staff could access BX. Physical and technical controls were in place to manage the sensitive data being handled. Users could only access the system using an authorised Home Office device, on authorised networks within authorised buildings. Two-factor authentication controls were in place. The systems were available 24 hours, 7 days a week, and were deemed part of the UK’s national critical infrastructure.

Border Force Officers had to pass a training course and examination to use BX at the PCP. Also, before appointment, new Border Force Officers undertook a 6-week Immigration Foundation Course which covered, amongst other things, the knowledge and skills they needed to decide whether to submit passengers for examination and temporarily to detain them at the PCP for further examination. Border Force Officers were subject to ongoing training and continuous review. The details of the training and review processes are set out in the statement of Brian Dray, Grade 6 Head of Second Line Assurance in the Border Force Operational Assurance, dated 14 February 2025, but it is not necessary to set out the details here.

Whenever a person was detained for further checks, a Border Force Higher Officer had to be notified.

Further safeguards were provided for in the Border Force Operating Mandate. The version in force in August 2023 was version 3, dated 2 February 2015 (“the Operating Mandate”). The Operating Mandate was agreed with Ministers. It set out a Mandatory Checks Framework, which applied at fully networked PCPs, such as Heathrow Airport. The Operating Mandate also described a Border Force security testing process which was designed to test the systems and processes in use at PCPs, including the procedures undertaken by Border Force Officers in relation to the WI. Weekly audits were carried out by the Border Force Operational Assurance Directorate. In addition, the Directorate conducted dip sample checks audit of BX. Where errors were identified, an investigation may take place, or the issue raised with port managers. In addition to the weekly audits, line managers were required to subject Border Force Officers to regular and routine assurance or testing. Still further, assurance checks were conducted at particular locations on a risk-led basis, and, in addition, spot checks were carried out.

Paragraph 2.4.2 of the Operating Mandate stated that “Further checks must be conducted in accordance with operational guidance and may be exercised only to the extent that the Border Force Officer is empowered and trained to do so…”

In taking all of their decisions, Border Force Officers were required to have due regard to the Ethical Decision-Making Model published by the Home Office. This directed them to escalate a matter, where necessary, to a senior manager or another team for consideration of a decision and the use of powers. There was a complaints procedure which was accessible by members of the public. If a member of the public was unhappy with the Home Office’s response to a complaint, the Independent Examiner of Complaints would investigate.

The Independent Chief Inspector of Borders and Immigration has a statutory role to provide oversight of the SSHD’s immigration and customs functions, pursuant to section 48 of the UK Borders Act 2007.

The policy/practice as described above, was not set out in a single document, but aspects of the policy/practice were set out in various Home Office and Border Force documents.

The most relevant document, for present purposes, was Home Office guidance entitled “Border Crossings (BX) and Warnings Index (WI) Operational Guidance” (“the Operational Guidance”) addressed to Border Force Officers. The version in force in August 2023 was Version 13, dated 12 May 2022.

The front page of this document stated, “All of the content of this guidance is classified as official-sensitive and must not be disclosed outside of the Home Office”. Accordingly, this operational guidance was not made available to the public.

The Operational Guidance instructed Border Force Officers how they should proceed once a “hit” was reported on the BX (i.e, once a STOP marker was noted). As stated above, they were required to detain the passenger so further checks could be made.

The Operational Guidance stated that “You must recommend an entry for deletion if the … entry is no longer valid.” A non-exhaustive list of circumstances in which entries were no longer valid was given, which included that “the sole reason for the WI entry was an Entry Clearance (EC) refusal and an EC is now held” and “enforcement office enquiries have shown that the subject is lawfully in the UK”. The Guidance stated that “Delete requests are submitted to WICU for review. The entry is not automatically removed from the WI.”

General guidance to Border Force Officers regarding their powers of examination under Schedule 2 of the IA 1971 is set out in a document entitled Examination Powers and Home Office form IS81 (“the Examination Powers guidance”). The version in force in August 2023 was version 5.0. As with the Operational Guidance, the Examination Powers guidance is classified as official-sensitive and was not disclosed outside the Home Office.

The Examination Powers guidance tells Border Force Officers about their powers of examination under Schedule 2 and about the process of submitting a passenger to further examination, and the requirement to serve the passenger with Home Office form IS81. This guidance was in force at the relevant time. This form explains that they are subject to further examination and explains, in broad terms, the reasons for the further examination. The Examination Powers guidance explained that a further examination takes place whenever the Border Force Officer needed to leave the PCP to make further enquiries about the admissibility of a passenger. The guidance set out a list of circumstances in which an IS81 must be served, which includes “a back office check is needed following a hit on the Warnings Index (WI) or Border Crossing (BX) to confirm the identity of the passenger [and/or] other enquiries need to be made to confirm the identity of the passenger.”

This guidance also makes clear that a Border Force Higher Officer must be informed if a passenger is detained.

A further relevant guidance document is the Home Office’s “Controlled Waiting Area (CWA) temporary detention facility at port”, dated 27 July 2022 (“the CWA guidance”). Once again, this guidance is “official-sensitive” and was not circulated outside the Home Office. The CWA guidance summarises Border Force Officers’ statutory powers to detain and states:

“In order to be lawful, immigration detention must be for one of the statutory purposes for which the power is given and must accord with the limitations implied by domestic and the European Convention on Human Rights (ECHR) case law. Detention must also be in accordance with the government's stated policy on immigration detention.”

The guidance states that a Controlled Waiting Area will normally be at, or near, the PCP, and will be in a public area and visible to the travelling public and other port staff. The guidance further states that the detained person must be detained for as short a time as possible, and, saving in exceptional cases, no-one should be detained on an IS81 for more than 2 hours.

The SSHD’s policy/procedure has changed since the period to which this claim relates. The current policy/procedure came into operation in October 2024 and was described in Mr Brotherton’s witness statement. The WI has been decommissioned and has been replaced by a new system called Helios. Helios interacts with BX on the same principles as WI but can do so much more quickly and efficiently.

The key difference between Helios and the WI is that where BX identifies a “STOP” marker, the Border Force Officer can now find out the reason for the marker at the PCP rather than being required to undertake a back-office check. The checks can, therefore, be carried out at the PCP. This means that, if a passenger has continuing current leave to remain notwithstanding a more recent refusal of leave, that information will be available to the Border Force at the PCP.

The safeguards described above remain in place.

The Claimant’s immigration history is somewhat complicated.

As stated above, the Claimant is a Ghanian national. She was first given limited leave to enter the United Kingdom in 2004 on a spouse visa. She was then married to a British citizen. She came to the United Kingdom with her daughter, Austina, who was then aged 3.

The Claimant would have qualified for indefinite leave to remain (settlement) after two years on the spousal basis, but her marriage broke down before this date, and she was divorced in May 2006. She became an overstayer in July 2006. In July 2006, she applied for indefinite leave to remain as the victim of domestic violence. The Claimant’s application for indefinite leave to remain was refused on 15 May 2007 and she remained an overstayer.

In 2009, the Claimant began a relationship with a new partner, who was a British citizen. Her second child, Jesse, was born on 12 August 2010. He acquired British nationality at birth through his father.

The Claimant made further applications for limited leave to remain in February 2011 and March 2012, which were refused. She made a further application on 1 June 2012, and on 31 July 2013 the Claimant was granted limited leave to remain on the family life route as her son’s primary carer. Austina Davis was granted leave to remain as her dependent. She obtained British citizenship in 2015.

On 22 February 2016, the Claimant’s limited leave to remain expired and she once again became an overstayer. This was the result of delays and errors on the part of her then solicitors, who submitted her application to renew her leave to remain 3 days out of time, and failed to tell her to attend an appointment to enrol her biometric data. This meant that the Claimant's continuity for the purposes of the 10-year track to settlement was broken.

On 29 June 2016, the Claimant’s application for further limited leave to remain was refused because of her late application and because of her failure to make an appointment to enrol her biometric data. She made another application on 21 July 2016 and was granted further limited leave to remain for a period of 30 months on 12 December 2017.

On 11 June 2019, the Claimant made a separate application for leave to remain under the EUSS as a Zambrano carer. This was refused on or about 27 February 2020.

On 31 May 2020, the Claimant applied for further leave to remain under the family life route. Following the expiry of her leave to remain on 12 June 2020, the Applicant’s leave to remain was extended, pursuant to section 3C of the IA 1971, pending the determination of her application.

The Claimant made a further application via the Zambrano route, in August 2020. This was refused on 25 March 2021.

On 21 November 2021, the Claimant made a third application for leave to remain under the Zambrano route.

Throughout this period, the Claimant’s leave to remain was automatically extended, pursuant to section 3C of the IA 1971, pending determination of her application for an extension via the family life route.

Eventually, the Claimant’s limited leave to remain via the family life route was renewed on 16 January 2023, until 16 July 2025. This renewal was 3 days before her third recent application for leave to remain under the EUSS was refused, on 19 January 2023. She has exercised her right to an administrative review of this decision, which remains outstanding.

On 8 September 2023, the Claimant made an application for indefinite leave to remain. This application was made on the basis that she had achieved 10 years of limited leave to remain, but this was an error, as there had, as explained above, been a break in continuity in 2016, which resulted in a period as an overstayer. This meant that time started to run again, for the purposes of the 10-year track towards settlement, when the Claimant was next granted limited leave to remain in December 2017. Accordingly, the Claimant’s application for indefinite leave to remain was refused on 11 December 2023.

On 2 July 2025, the Claimant made a further application for limited leave to remain. Her leave expired on 16 July 2025, but because she had made an in-time application for renewal, her leave to remain continued automatically in accordance with IA 1971, s3C.

On the basis of the current law, and assuming that her limited leave to remain is renewed, the Claimant will qualify for settlement after 10 years of limited leave to remain in December 2027.

The Claimant was detained at airports on four previous occasions prior to her detention on 20 August 2023.

The first three occasions were on 4 August 2015, 3 April 2018, and 10 June 2019. The first two stops were at Heathrow Airport when the Claimant was returning from Ghana. The third stop was at Stansted Airport when the Claimant was returning from Italy. On the first occasion, the Claimant’s two minor children were with her. On each occasion, the Claimant was detained at the PCP and asked to wait whilst further investigations were carried out. She was told that this was because of a previously refused immigration application. No questions were asked of her. The Claimant was detained for 20 minutes, 15 minutes, and 15 minutes, respectively. She was then permitted to enter the United Kingdom after the further investigations were completed.

As a result of the decommissioning of the WI system in 2024, the Home Office no longer has records of the reasons for these stops. Each of these stops took place after leave to remain had been refused on at least one occasion, but, in each case, the Claimant had more recently been granted limited leave to remain, which was current at the time of the stop. It appears, therefore, that, in accordance with the Home Office policy, the Claimant should not have been stopped on these occasions, as the negative immigration marker arising from the refusal to leave to remain should have been removed when she was subsequently granted limited leave to remain, well in advance of her detention at the airport.

However, it is not necessary to make findings in relation to the earlier stops, as there is no challenge to the lawfulness of these stops in these proceedings, and there is no evidence about the reasons why the Claimant was stopped on these occasions. They are, therefore, of limited significance to the issues before me, save that the Claimant relies upon them to show that the stop on 20 August 2023 was not an isolated incident, and says that the earlier stops made the stop in August 2023 all the more stressful.

The fourth occasion was on 29 March 2023, when the Claimant was stopped at Heathrow upon her return from Ghana. Once again, the Claimant was detained whilst further investigations were carried out and was then permitted to enter the United Kingdom when it became clear that she had current leave to remain. She was detained for about 15 minutes. There is no direct evidence about the reasons for this stop. However, it is common ground that this detention was in accordance with the Home Office policy then in force, because the Claimant’s application for leave to remain under the EUSS had been refused on 19 January 2023. This meant that a negative immigration marker would automatically have been generated and this would have mean that a STOP marker would have shown up on BX when she arrived at the PCP. When the Border Force Officer then consulted the WI, after the Claimant was detained, it would have become apparent that, notwithstanding the refusal on 19 January 2023, the Claimant had current limited leave to remain that had been granted on 16 January 2023, and therefore that she was allowed to enter the country. It is also common ground that the negative immigration marker was not removed following the stop in March 2023 (hence the Claimant’s stop on 20 August 2023). There is no direct evidence as to why this did not happen, though Ms Broadfoot KC, on behalf of the SSHD suggested some possible explanations. I will deal with them when I deal with Ground 2A, which is a complaint that the SSHD acted unlawfully in failing to remove the negative immigration marker on that occasion.

The Claimant’s daughter, Austina, has also been stopped when entering the United Kingdom. This happened on 11 September 2022 and, again on 24 September 2022. On each occasion her United Kingdom passport was rejected at the e-gates and she had to speak to a Border Force Officer. The Border Force Officer said that this was because she had had an immigration application refused at some point. This issue was raised with the Border Force by Bhatt Murphy, and when Austina next returned to the United Kingdom on 9 July 2023, she was allowed through the e-gate with no issues.

There is only a limited factual dispute between the parties as regards what happened at Heathrow Airport on 20 August 2023. There are two points of factual disagreement. There is no dispute that the Claimant was taken from the PCP to the Controlled Waiting Area, and that this means that she was detained. However, there is a disagreement about the duration of the Claimant’s detention. The Claimant says that the detention lasted 47 minutes, whereas the SSHD says that the detention lasts 30 minutes. This has no relevance to the question whether the SSHD acted unlawfully because, either way, it is common ground that the Claimant was detained for a period on 20 August 2023. But it may have some relevance to remedy, if the Claimant’s claim succeeds on Ground 1 to 3. The second point of disagreement is as to whether the Claimant was served with an IS81. The Claimant says that she was not, and the SSHD says that she was. I will consider this issue, but it should be emphasised that the Claimant’s pleaded claim does not include a contention that her detention was unlawful simply because she was not served with an IS81, if that was the case.

The Claimant’s pleaded case, as set out in the Amended Statement of Detailed Facts and Grounds (“ASFG”) dated 17 April 2024, contends that the Claimant’s stop, examination, and detention on 20 August 2023 were unlawful at common law (see ASFG, at paragraphs 4, 54, 55, 63, 65, 68, 68a 69, 85 and 90). At paragraph 90(1), the Claimant contends that her detention amounted to unlawful false imprisonment. It is clear from the ASFG that “stop” and “examination” in this context do not refer to the normal process of being stopped at the PCP or e-gates whilst a Border Force Officer examines a passport and other travel documents and biometric data. Rather, they are a reference to the further delay and examination/investigations that took place because of the STOP marker on the WI which resulted from the negative immigration marker relating to the Claimant. Similarly, (subject to one point that I deal with at paragraph 82, below) it is clear from the ASFG that the “detention” which the Claimant contends amounts to false imprisonment does not include the time spent in the queue whilst waiting to be seen by a Border Force Officer, or the time spent at the PCP itself. Rather, the “detention” for the purpose of these proceedings, which is alleged to be unlawful, began when the Claimant was moved to the Controlled Waiting Area so that further investigations could be carried out, and continued until she was told she was free to go and left the Controlled Waiting Area.

This is made clear at paragraph 17 of the SFG, which says:

“[The Border Force Officer] told [the Claimant] he had to detain her while enquiries were made. She was not given information about this refused application or asked any questions about it. Instead, she was directed to a seated holding area near the passport control desk while the BFO retained her documents for checks…. No paperwork was given to her to confirm the exercise of the detention power…. Nor was she given formal reasons for the detention. The Claimant checked her phone and noted that her detention commenced at 15.44 (i.e when she was told she was going to be held for further checks).”

In my judgment, this is the right approach. The time spent by passengers in the queue for the PCP or e-gates, and the time spent at the PCP or e-gates themselves does not amount to “detention”, let alone unlawful “detention” or false imprisonment. It is true that a person can be delayed in a queue for a considerable period, and that, on occasion, a passenger may spend some considerable time at the PCP or e-gate, whilst checks are made. But in my judgment, the periods spent in the queue or at the PCP/e-gates, do not amount to “detention” for the purposes of the IA, and are not capable of amounting to false imprisonment (save perhaps in the most exceptional circumstances in which a passenger is held at a PCP for a very lengthy period for a wholly improper reason). There are two reasons for this. First, it is clear from the wording of paragraphs 2A and 16(1) of Schedule 2 to the IA (at paragraphs 22 and 23, above), that the process of examination of a passenger by an immigration officer at the port of entry does not automatically involve “detention”. Paragraph 16(1) grants an additional power of detention if it is necessary for the purposes of an examination and a decision about whether the passenger should be granted entry to the United Kingdom, and it is therefore clear that the usual steps that are followed at the port of entry, whether at the PCP or at e-gates, do not amount to “detention”. Second, any passenger arriving in the United Kingdom voluntarily, though implicitly, consents to immigration and other checks being made at the port of entry. These will be inconvenient to a greater or lesser extent, and may involve considerable delay, but they are the price that everyone must pay for border security. The process is conducted under lawful authority, pursuant to the powers granted to immigration officers by the IA, Schedule 2. As the procedures are carried out under lawful authority, and by consent, the fact that they take some time and that the passenger is not, in practice, simply free to leave, does not mean that any question of unlawful false imprisonment arises.

It follows that, when making findings of fact about the length of the detention, I must make a finding about the duration of the period from when the Claimant was moved to the Controlled Waiting Area until she was told that she was free to go. This is the period that the Claimant says lasted for 47 minutes, and that the SSHD says lasted for 30 minutes.

Paragraph 17 of the ASFG and the Claimant’s Skeleton Argument, at paragraph 28, say that the Claimant’s detention began when she was told that she was going to be held for further checks. In my judgment, it is more accurate to say that the detention began when she was moved away from the PCP to the Controlled Waiting Area. Standing at the PCP is not “detention”. In any event, it is likely that the Claimant was moved to the Controlled Waiting Area at more or less the same time as the moment when she told that she was going to be held for further checks.

I should add that different considerations arise in relation to the question whether there is a “deprivation of liberty” for the purposes of Article 5 of the ECHR, or an infringement of the Claimant’s right to private and family life, for the purposes of Article 8, and I will deal with these issues separately, later in this judgment.

There is no direct evidence from the Border Force Officer who dealt with the Claimant on 20 August 2023. No criticism is made of this on behalf of the Claimant, because the Claimant and her legal advisers sensibly accept that Border Force Officers deal with a very large number of passengers each day and so cannot realistically be expected to remember their interactions with any single person. As a result, however, the evidence about the events of that day comes from the Claimant herself, and her solicitor, Ms Farrell, to whom she spoke by telephone during her detention, and from records kept by the Border Force, which were exhibited to Mr Brotherton’s statement.

The proper approach to findings of fact by a court in judicial review proceedings, where there is a dispute of fact, was helpfully set out by Chamberlain J in paragraphs 55 and 56 of his judgment in MXK, as follows:

“55 The primary targets of the claimants’ challenges are the decisions to detain them. As to what happened on these occasions, there is a dispute between the parties.

56 In R (F) v Surrey County Council [2023] EWHC 980 (Admin), at [46]-[50], I set out what I consider to be the proper approach to findings of fact in judicial review proceedings, by reference to previous authority: S v Airedale NHS Trust [2002] EWHC 1780 (Admin); R (Safeer) v Secretary of State for the Home Department [2018] EWCA Civ 2518; R (Singh) v Secretary of State for the Home Department [2018] EWCA Civ 2861; and R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841. At [50], I said this:

“(c)

There is no absolute rule that the court must accept in full every part of the statement of a witness who has not been cross-examined, whether the statement is adduced for the claimant or the defendant. The court can reject evidence in a witness statement if it ‘cannot be correct’ (Safeer, [16]-[19] and Singh, [16]). That might be so if it is contradicted by ‘undisputed objective evidence… that cannot sensibly be explained away’: S v Airedale, [18]. But there are also examples of courts rejecting evidence given in witness statements as, on balance, inconsistent with other written evidence: see e.g. Talpada, [48].

(d)

In some cases, the court may be unable to resolve a conflict of written evidence on a question of primary fact. In that situation, “the court will proceed on the basis that the fact has not been proved”: Talpada, [2]. This will be to the disadvantage of whichever party asserts the fact. That will generally be the claimant, because in judicial review the claimant generally bears the burden of proving all facts necessary to show that the decision challenged is unlawful. Thus, the principle that the defendant’s evidence is to be preferred, save where it ‘cannot be correct’, arises because of the difficulty of satisfying the burden of proof where there is a conflict in written evidence, not because evidence adduced on behalf of a defendant is inherently more likely to be true than that adduced on behalf of a claimant.”

57 Neither party sought to persuade me to depart from this approach.”

I respectfully agree with the observations of Chamberlain J. In the present case, neither party applied to cross-examine any witness, and there was no oral evidence. Accordingly, I will follow the approach set out by Chamberlain J in MXK.

In her witness statements, the Claimant said that when she arrived at Heathrow Airport, Terminal 5, on 20 August 2023, a Sunday, following a short holiday in Malaga, she was feeling very anxious about being detained again. When she arrived at the PCP, she handed her passport and Biometric Residence Permit to a male Border Force Officer. Fingerprint identity verification was also carried out. The officer asked her some basic questions about whether she had a job and whether she had proof of it. He then told her that there was something in her records relating to a previous refused immigration application that had to be checked further and that she would be detained whist enquiries were made. She was not given information about the refused application or asked any questions about it. She was directed to a seated area near the PCP (this was the Controlled Waiting Area). The Border Force Officer retained her passport and Biometric Residence Permit.

The Claimant said that she was not given any paperwork to confirm the exercise of the power of detention, or the reason for it and she was not given orally any more detailed reasons for her detention.

As for the duration of the detention, the Claimant said that she checked her phone and noted that the time at which she was told that she was going to be held for further checks was 15:44. The detention lasted for a significantly longer period than on the previous occasions. During this period, she felt worried about what was going to happen to her, fearing that she would not be allowed back into the United Kingdom. If so, she would be separated from her children and her home and would lose her job.

Prior to her trip to Spain, the Claimant had sought advice from Ms Janet Farrell of Bhatt Murphy Solicitors, a specialist immigration solicitor, about her and her daughter’s previous stops and detentions. Ms Farrell had told the Claimant that she could consult her if she were to be detained on her return to the UK in future. The Claimant did so at 16.06 on 23 August 2023, by WhatsApp message. She and Ms Farrell spoke briefly by telephone at about 16.12. The Claimant was, by then, very concerned. Ms Farrell offered to speak to a Border Force Officer to help resolve any queries there might be about the Claimant’s immigration status. The Claimant tried to hand the phone to a Border Force Officer who was nearby, but the officer declined to speak to Ms Farrell on the basis that she (the officer) was not dealing with the Claimant’s case.

At 16.31, the Border Force Officer who had been dealing with her case returned to the Controlled Waiting Area and told the Claimant that the checks had been done, and she was free to go. The Claimant’s passport and Biometric Residence Permit were returned to her. The Claimant went through immigration control and then called Ms Farrell to tell her that she had been allowed to enter the country.

By the Claimant’s calculation, the detention lasted 47 minutes, from 15.44 to 16.31.

During the stop and detention, the Claimant was not asked any further questions, beyond the question about her employment whilst she was at the PCP. The Claimant was not given any further information beyond being told that the check was because of a previously refused immigration application. She was not specifically told that a STOP marker had been placed against her file on the WI system.

Ms Farrell also provided a witness statement in which she agreed that she had received the WhatsApp message from the Claimant and that she spoke to the Claimant on the telephone and offered to speak to a Border Force Officer. She said that, during the exchange of WhatsApp messages whilst the Claimant was detained, she asked the Claimant to note the time of the start and end of the detention. The Claimant sent a message to Ms Farrell at 16.30, stating that the detention had started at 15.44. Shortly after she had cleared immigration, the Claimant telephoned Ms Farrell again, and told her that at 16.31 the Officer had allowed her to proceed through immigration control, and her documents had been returned to her. She seemed shaken and upset.

As I have said, there was no witness statement from the Border Force Officer who dealt with the Claimant on 20 August 2023. The Defendant’s evidence was entirely based on records.

The BX record, exhibited to Mr Brotherton’s statement, showed that the Claimant’s passport was scanned at 15:40:09. Her Biometric Residence Permit was scanned at 15:40:37. Fingerprint verification was conducted at 15:41:21. The Claimant’s transaction history (the processes that had just been undertaken by the BFO) was checked again on BX at 15:42:33. The Claimant’s passport was scanned again at 15:48:37. At 15:52:16, the Recorded Outcome on BX is investigate.

As all of these steps are recorded on BX, I am satisfied that they all took place at the PCP and so happened before the Claimant was moved to the Controlled Waiting Area. It is not surprising that some checks on BX might have happened twice.

Mr Brotherton’s statement explained that, at some stage whilst at the PCP, there would have been a “hit” on the STOP marker. The Border Force Officer at the PCP would have been able to obtain some additional information by pressing the F8 key, but this would not have told the Border Force Officer any details about the reason for the STOP marker, beyond that it was triggered by a negative immigration marker. The addition information would simply have provided the Border Force Officer with the Home Office File reference for the WI negative immigration marker. However, in order to access the negative immigration marker and to decide whether or not the Claimant should be permitted entry into the United Kingdom, the Border Force Officer would have had to move to the back-office computer system. Accordingly, whilst the Border Force Officer at the PCP would have been alerted to the existence of a WI marker, he would not have been able to find out what the details were, or to decide whether to grant entry to the United Kingdom, until he was able to refer to the back-office system.

Mr Brotherton also exhibited the Border Force Record in relation to the Claimant’s stop on 20 August 2023. This was a computer record, in which the entries were made contemporaneously. The Border Force Record set out the Claimant’s name, nationality, and date of birth and her flight number and departure airport. It stated that the IS81 time was 15:55:00 and that the IS81 “outcome time” was 16:20. The Border Force Record stated that the Claimant left the Controlled Waiting Area at 16:25. This is the basis for the SSHD’s contention that the detention lasted for 30 minutes. The “IS81” reason was “HO System HIT” and the “HO System Reason” was “Previous Refusal.” The Border Force Record said that the “IS81” Outcome was “Landed”. This means permitted to enter the United Kingdom.

The SSHD says that the Claimant was issued with an IS81 at the time of her detention. IS81s are paper forms. They inform the passenger that they are liable to be examined or further examined by the Border Force Officer who stopped them, or another Border Force Officer or, alternatively, a Medical Inspector. They inform the passenger of the statutory power under which the detention is taking place, such as “Paragraph 16(1) of Schedule 2 to the Immigration Act 1971 pending your examination and pending a decision to give or refuse you leave to enter.” They are signed and dated by the Border Force Officer. The Border Force does not retain hard copies of IS81s that are issued, and, as I have said, it was not practicable to obtain evidence from the Border Force Officer who dealt with the Claimant on 20 August 2023. There is, therefore, no direct witness evidence from the SSHD’s side about whether an IS81 was issued on this occasion, and no hard copy of the IS81 was available. However, it was Mr Brotherton’s evidence that Border Force Officers are required to provide IS81s to persons who are detained for further investigation, and the Border Force Record relating to the Claimant’s stop contained information about the IS81 time, the IS81 reason, and the IS81 outcome time.

Mr Brotherton’s witness statement also exhibited the record from the back-office computer relating to searches in respect of the Claimant on 20 August 2023. This shows that her passport was scanned at 16:04 and that there were four matches to watchlists. These were four negative immigration markers relating to four aliases (i.e. different versions of the Claimant’s name). Her ID card was then scanned at 16:15. The Border Force Officer would then have checked the WI and found the relevant Home Office Code which would have prompted the Officer to undertake checks on the Home Office database, known as Atlas. The SSHD was not able to recreate the information that would have been seen by the Border Force Officer. However, this would have shown the Claimant’s extensive immigration history. It would have shown that limited leave to remain was granted on 16 January 2023, and had then been refused on a different basis on 19 January 2023. The Border Force Officer would have been required to resolve the conflict between the grant of leave and refusal of the application, and to decide whether the Claimant should be permitted to enter the United Kingdom.

The Border Force Officer recorded a WI hit report on the WI in respect of the stop. This said, “[The Claimant] arrive from Malaga, Spain on BA 413. PAX holds UK residence permit daye [sic] of issue: 16/01/23. Valid to 31/12/2024. Referred to HO [Higher Officer] for the purposes of getting authority to allow the Claimant to enter. Allowed to enter.”

The negative immigration marker for the Claimant on the WI was removed following this stop. It must be the case, therefore, that, in accordance with the policy/practice, the Border Force Officer contacted WICU and asked that the negative immigration marker be removed. This meant that there would not be a stop Marker when she next entered the United Kingdom.

As I have said, most of the Claimant’s description of the stop and detention is not disputed by the SSHD. However, there are two points of disagreement: whether she was detained for 47 minutes or for 30 minutes, and whether she was served with form IS81.

The burden of proving the length of time over which the detention lasted rests with the Claimant, on the balance of probabilities. I am not persuaded that the detention lasted 47 minutes. I prefer the evidence of the SSHD to the effect that the detention lasted 30 minutes.

The SSHD’s evidence is derived from computer records. Its accuracy can, therefore, be relied upon. The key point, in my view, is that the BX records show that steps were still being taken at the PCP until 15:52:16. This was the point at which a decision to undertake further investigations was made and it was this that triggered the decision to detain the Claimant by moving her to the Controlled Waiting Area. This timing is corroborated by the Border Force Record, which said that the IS81 time, the time when the IS81 would have been served on the Claimant because she had been moved to the Controlled Waiting Area, was 15:55:00. It is also consistent with the record on the back-office computer system which showed that the first additional check was at 16:04. The Border Force Record also shows that the detention came to an end at 16:25:00 (five minutes after the outcome was decided upon) and this shows that the total period spent in detention was 30 minutes.

I do not, for a moment, believe that the Claimant deliberately gave false timings in her witness statements. There is no reason to think that she was being intentionally untruthful. However, I think that the discrepancy between the Claimant’s evidence and the SSHD’s evidence can be explained by the fact that the Claimant started the clock running, so to speak, whilst she was still at the PCP but had started to suspect that she was not simply going to be allowed to enter the UK once again without further examination and delay. There may also have been a short delay between the Claimant being told that she was to be detained for further examination and being moved to the Controlled Waiting Area. There is a slight difference between the time that the Claimant says that her detention came to an end and the time on the Border Force Record but, once again, I prefer the Border Force Record.

As for whether the Claimant was given an IS81, applying the approach to findings of fact that was set out in MXK, I find that she was given an IS81. This is, once again, because the contemporaneous Border Force Record gives a time for the point at which she was given the document. It is clear that the Claimant was, understandably, stressed whilst the incident was taking place, and I think that it is likely that she forgot that she was given the document. However, I stress once again that nothing rests on this for the purposes of these proceedings.

On behalf of the Claimant, Mr Squires KC submitted that the policy/practice under consideration, which meant that a person would be detained for further examination in every case in which, since the last grant of limited leave to remain, there had been a subsequent refusal of limited leave to remain, was unlawful. This was because, in cases such as the Claimant’s in which the person has a current grant of leave to remain which remains in force, the later refusal was legally irrelevant to the exercise of the powers to examine. This means, he submitted, that the power to detain for further examination was being used in a material and identifiable number of cases in which there was no lawful basis, under the IA, for detention to take place. The only lawful justification for detention in these circumstances is for the purpose of determining whether leave to enter should be curtailed or cancelled: see IA, Schedule 2, paragraphs 2 and 2A, and MXK at paragraphs 65, 68, 72-73. Put bluntly, the stop and detention was for a reason that simply could not be relevant to the question whether the person should be permitted to enter the United Kingdom. It follows, he submitted, that the policy/practice then in force was unlawful. The SSHD could have designed a better policy/practice which would not have meant that unnecessary detentions took place in a material and identifiable number of cases.

Mr Squires KC said that the policy/practice which required detention of those who had a previous refusal but who had current leave to remain was indistinguishable from the policy/practice in MXK, which Chamberlain J found to be unlawful, under which person were stopped and detained because they owed NHS debts, even though the existence of NHS debts could not be a reason to cancel or curtail the person’s leave to enter the United Kingdom. In both cases, the stop was for a legally irrelevant reason.

The Claimant’s legal team provided four examples of circumstances in which they said that the policy of stopping and detaining those in Group 2 would mean that passengers were stopped for reasons which simply could not affect their right to enter the United Kingdom, and for whom no further investigation was needed. He said that this meant that the policy/guidance was being operated unlawfully in a material and identifiable number of cases. The Claimant’s legal team stressed that these were only examples and there many other similar cases. The examples were:

On behalf of the SSHD, Ms Broadfoot KC emphasised that there is no blanket policy or practice of stopping and detaining passengers simply by virtue of there being a previous refusal of an immigration application. If there has been a previous refusal, followed by a grant of limited leave to remain, the policy/practice requires that the negative immigration marker will be removed and so there will be no stop or detention as a result of the previous refusal. This is Group 1. Ms Broadfoot pointed out that no objection is taken by the Claimant to the lawfulness of the policy/practice as it applies to Group 1 (though the Claimant says that the policy/practice is not always followed in practice in relation to those in Group 1). She accepted that, at the material time, the refusal of an immigration application which took place after leave to remain was granted would result in a negative immigration marker and a STOP code. This is Group 2. But, she submitted, this is lawful, because such a negative immigration marker may be relevant, as it may indicate that there is reason to suspect that the person does not have current leave, or that there has been a change of circumstances in the person’s case, since leave was given, which means that leave should be cancelled. Whether the refusal is or is not relevant in any particular case is something that needs to be checked by reference to the wider records, and, at the material time, this could not be done at the PCP. Therefore, it was necessary to detain the person for further enquiries to be made. Ms Broadfoot submitted that this was a legitimate and orthodox basis for exercising the Schedule 2, paragraph 2A powers. The system whereby an automatic STOP flag is created when an immigration refusal decision is made is justifiable on the basis that such a refusal may be directly relevant to the statutory questions the Border Force Officer is required to consider, namely whether the person in front of them is a person who requires leave, whether they have it, and, if they have it, whether it should be curtailed or cancelled. Ms Broadfoot KC said that the Claimant’s argument is founded on her specific circumstances, but that is an incorrect premise in the context of a systemic challenge. In many cases, a previous refusal may be relevant, or may become relevant in future.

The SSHD does not accept that the previous refusals are legally irrelevant in the examples given on behalf of the Claimant (above). In the skeleton argument on behalf of the SSHD, Ms Broadfoot KC and Mr Evans gave examples of cases in which a more recent refusal might be relevant to the curtailment or cancellation of leave, even if the passenger has extant limited leave to remain. They gave nine examples. It is only necessary to refer to a few. These are:

The SSHD also submitted that, in any event, the Claimant has been unable to prove that people have been stopped and examined in circumstances where a subsequent refusal of leave to remain was “legally irrelevant” in a significant and material number of cases. They were only able to identify one specific case, apart from the Claimant’s, in which a person was stopped because an immigration application was refused but they had existing leave. As there are 134.8 million arrivals in the United Kingdom each year, the stop of 2 people in these circumstances would amount to only 0.000000015% of entrants annually. They are also a very small proportion of the 147,150 further examinations that took place between 1 January 2024 and 31 December 2025 (witness Statement of Jane Holloway, Assistant Director of the Status Review Unit at the Home Office, dated 11 November 2025, paragraph 13). This would not be “material and identifiable.”

The parties are agreed that the approach to be taken by the reviewing court to determining the lawfulness of a policy/practice governing the exercise of administrative discretion is set out in the judgment of the Supreme Court in R(A) v SSHD [2021] UKSC 37; [2021] 1 WLR 3931, though they disagree about the application of the test to the present case.

The judgment in R (A) was given by Lord Sales and Lord Burnett of Maldon. The other members of the Supreme Court agreed with it. At paragraph 1, Lord Sales and Lord Burnett said:

“This appeal is concerned with the standards to be applied by a court when it is asked to conduct a judicial review of the contents of a policy document or statement of practice issued by the Government.”

At paragraph 38, the Supreme Court said:

“So far as the basis for intervention by a court is concerned, we respectfully consider that Lord Bridge and Lord Templeman were correct in their analysis [in Gillick v West Norfork and Wisbech Area Health Authority [1986] AC 112] that it is not a matter of rationality, but rather that the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way.”

At paragraph 41, the Court said:

“41 The test set out in Gillick is straightforward to apply. It calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed. The test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations: see also our judgment in BF (Eritrea) [2021] 1WLR 3967.”

Perhaps the most important part of the Supreme Court’s guidance can be found at paragraphs 46 and 47 of the judgment:

“46 In broad terms, there are three types of case where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others: (i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (i e the type of case under consideration in Gillick [1986] AC 112); (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position. In a case of the type described by Rose LJ, where a Secretary of State issues guidance to his or her own staff explaining the legal framework in which they perform their functions, the context is likely to be such as to bring it within category (iii). The audience for the policy would be expected to take direction about the performance of their functions on behalf of their department from the Secretary of State at the head of the department, rather than seeking independent advice of their own. So, read objectively, and depending on the content and form of the policy, it may more readily be interpreted as a comprehensive statement of the relevant legal position and its lawfulness will be assessed on that basis. …

47 In a category (iii) case, it will not usually be incumbent on the person promulgating the policy to go into full detail about how exactly a discretion should be exercised in every case. That would tend to make a policy unwieldy and difficult to follow, thereby undermining its utility as a reasonably clear working tool or set of signposts for caseworkers or officials. Much will depend on the particular context in which it is to be used. A policy may be sufficiently congruent with the law if it identifies broad categories of case which potentially call for more detailed consideration, without particularising precisely how that should be done. This was the approach adopted by Green J in R (Letts) v Lord Chancellor (Equality and Human Rights Commission intervening) [2015] 1WLR 4497 (“Letts”).”

At paragraph 63, the Court said:

“If it is established that there has in fact been a breach of the duty of fairness in an individual’s case, he is of course entitled to redress for the wrong done to him. It does not matter whether the unfairness was produced by application of a policy or occurred for other reasons. But where the question is whether a policy is unlawful, that issue must be addressed looking at whether the policy can be operated in a lawful way or whether it imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way.”

At paragraph 65, the Court said:

“Fifthly, if one moves away from that principled Foundation [i.e the approach in Gillick that was adopted by the Supreme Court in R(A)], there is a risk that a court will be asked to conduct some sort of statistical exercise to see whether there is an unacceptable risk of unfairness, as was urged upon the court in the BF (Eritrea) appeal: see our judgment in BF (Eritrea), paras 35 and 41. But a court is not well equipped to undertake such an analysis based upon experience. In principle, the test for the lawfulness of a policy should be capable of application at the time the policy is promulgated, which will be before any practical experience of how it works from which statistics could be produced. The test for the lawfulness of a policy is not a statistical test but should depend, as the Gillick test does, on a comparison of the law and of what is stated to be the behaviour required if the policy is followed. Both aspects of this test are matters on which the court is competent and has the authority to pronounce.”

At paragraph 84(1), the Court said, in summary, that a policy will be unlawful if it misdirects officials as to their legal obligations.

It is convenient next to consider Chamberlain J’s judgment in MXK, because both parties submit that the judgment lends support to their arguments in the present case. Mr Squires KC and Ms Luh acted for the Claimants in MXK, as they do for the Claimant in the present case. Mr Evans appeared for the SSHD in both cases.

The claimants in MXK were foreign nationals with limited leave to enter and remain in the UK. Both of them were stopped, detained, and questioned on their return to the United Kingdom from trips abroad about their outstanding debts to NHS Trusts at a time when, because of their immigration status, they were obliged to pay for such treatment. They were not refused entry, but, after their detention and after the Border Force Officer ascertained that the reasons for the warnings marker was that the claimants had NHS debts of more than £500, they were examined generally about their NHS debts, their up-to-date contact details were taken, and they were warned about the need to pay those debts off.

The issues before Chamberlain J in MXK were different in two key respects from the issues before me.

First, MXK was not concerned with detention that was triggered because of a previous refusal of leave to enter. Rather, as I have said, MXK was concerned with detention that took place because the passengers had NHS debts over a certain threshold. Whilst the existence of NHS debts over £500 could lawfully lead the SSHD to refuse leave to enter and remain, or to refuse to renew leave to remain, they could not justify the cancellation of leave by reason of change of circumstances pursuant to IA, Schedule 2, paragraph 2A(2)(a). This was the effect of the Immigration Rules, 9.11.1. The existence of a NHS debt over £500 was, therefore, a ground for refusing an application for entry clearance, permission to enter, or permission to stay, but it was not a ground for curtailing or cancelling permission to enter if the passenger had such permission. In other words, if a person had leave to remain and then accrued a NHS debt, that could not be a valid reason for refusing entry to the United Kingdom (see judgment, paragraph 43) The existence of a NHS debt could not, therefore, have any relevance to the question whether a passenger should be permitted by a Border Force Officer to enter the United Kingdom, when they arrived at the port of entry after a trip abroad.

The second difference – an important one – is that the Claimants in MXK conceded that their detention was lawful from the point when they were detained because a warnings marker flashed up on the WI until the point at which the Border Force Officer discovered the reason for the warnings marker, namely that the passenger had an NHS debt. At paragraph 51 of his judgment, Chamberlain J noted that “the claimants concede that their detention was initially lawful, up to the point when the officer realised that the flag on the WI related only to NHS debt.” This is, in my view, a crucial distinction between MXK and the present case. MXK was only concerned with the unlawfulness of detention during the period after the Border Force Officer discovered that the reason for the warnings marker was because the passenger had a NHS debt, whereas the present case is concerned with lawfulness of the period of detention at an earlier stage, from detention for further examination up until the time when the Border Force Officer ascertained, via the back-office computer system, what the reason for the STOP marker was, and was able to determine that the passenger should be granted entry to the United Kingdom. Unlike in MXK, the Claimant’s detention came to an end as soon as the Border Force Officer accessed the Atlas database and identified that the Claimant had current leave to enter and remain.

At paragraphs 65 and 68 of his judgment in MXK, Chamberlain J said that, in each case, the detention was lawful at its inception but then became unlawful after 5 minutes because it was then carried out for a purpose other than those specified in paras 2 and 2A of Sch. 2 to the 1971 Act. This was because, as I have said, the mere fact that a passenger with leave to enter had a NHS debt could not be a reason to curtail or cancel that leave, so as to refuse entry. Guidance given to Border Force Officers by the SSHD at the relevant time, entitled “NHS Debtors, version 6.0), said that if a passenger seeks permission to enter but has an entry on the WI due to an unpaid debt to the NHS that meets or exceeds the threshold, the Border Force Order may, as a matter of discretion, refuse (or in the case of a person holding an entry clearance consider cancelling) permission to enter. This guidance was wrong as a matter of law: Border Force Officers had no discretion to refuse entry or to cancel entry clearance because of a NHS debt. It follows that there was no lawful power to detain passengers with NHS debts so as to decide whether to refuse entry and to cancel or curtail entry clearance for that reason, and, applying R(A), the guidance was unlawful. Similarly, there was no power under Schedule 2 to detain the claimants in order to question them about their NHS debts or to advise them to take steps to pay them off. Schedule 2 to the IA does not grant powers to immigration officers to detain persons so as to question them or to speak to them about their NHS debts, as these have nothing to do with their entitlement to enter the United Kingdom and do not have any impact upon any existing leave to enter. Chamberlain J rejected a submission on behalf of the SSHD that the detentions were nevertheless justified, once the reason for the warning markers was discovered, because the Border Force Officers were entitled to investigate whether there were grounds for cancellation not connected to the NHS debt, such as a change of circumstances, or false representations at the time when limited leave to remain was obtained (see judgment, paragraphs 63 and 67).

The arguments on behalf of the Claimant in the present case, in relation to this ground, are different from, and go further than, the argument on behalf of the claimants in MXK. In the present case, unlike in MXK, it is submitted on behalf of the Claimant that it was unlawful to detain her during the period whilst enquiries were carried out to identify the reason for the negative immigration marker, and before the Border Force Officer obtained access to the full details of the reason for the marker and of the Claimant’s immigration history. Unlike in MXK, there was no question in the present case of the Claimant’s detention continuing even after the information available to the Border Force Officer made clear that she had current leave to enter and remain.

I agree with Chamberlain J that the burden of proof rests with the SSHD to justify the detention (see MXK, paragraph 52), though, as in that case, the Court’s decision on this ground does not depend upon which party bears the burden of proof.

The starting point is that is clear from the terms of IA, Schedule 2A, paragraphs (1)(c)(i), 1(d), (2)(2)(a) and (b) that, upon arrival at a port of entry into the United Kingdom, a passenger may be examined by an immigration officer (a Border Force Officer) for the purpose of determining or establishing a number of matters. These included whether the passenger has been given leave to enter which is still in force; whether if the passenger has been given leave that is still in force it should be curtailed; whether there has been such a change of circumstances in the passenger’s case, since leave was given, that it should be cancelled; and/or whether leave was obtained as a result of false information given to him or his failure to disclose material facts.

Paragraph 16(1) permits a Border Force Officer to detain the passenger pending their examination for the purposes of paragraph 2.

Where a person has been the subject of an adverse immigration decision, and no immigration officer has yet looked at their case and determined that they nonetheless have current leave to remain, there is a potential issue as to whether they still have leave to enter, and/or whether their circumstances have changed. Further investigations by the Border Force Office at the port of entry, either on the more detailed computer system that was then only available at the back-office, or through questioning, may make it clear that the person does indeed have a current right to enter and remain, but that does not retrospectively invalidate or render unlawful the decision to detain the person for further examination to take place. The statutory regime recognises and intends that detentions will take place so that investigations will take place and it also recognises that, in many cases, it will then become clear that there is no reason to refuse entry. The statutory regime does not limit the power to detain to cases in which there are very clear grounds for believing that a person should be denied entry.

A previous refusal of leave to enter may be a sign that the person does not have current leave to enter, or that there may be some reason why their leave to enter should be curtailed or cancelled. This is a key difference between the present case and MXK. The existence of a NHS debt can never in itself be a reason for refusal of entry to the United Kingdom (unless it is evidence that the person might have made false representations in order to obtain entry documents).

The position as things stood under the arrangements on place at the time of the Claimant’s stop on 20 August 2023 was that a Border Force Officer standing at the PCP did not have access to sufficient information to determine, there and then, whether a warning marker that was flagged up by the BX was a reason to refuse entry to the passenger. The only way that the Border Force Officer could find out whether or not the passenger should be denied entry was by detaining the passenger so that the Border Force Officer could look at the reason for the negative immigration marker, and look at the passenger’s immigration history, on the Atlas system in the back-office and then, if necessary could ask questions of the passenger.

In my view, the essence of the Claimant’s challenge under Ground 1(A), is that the policy/practice then in force was too much of a blunt instrument. The Claimant was caught up by it, even though as soon as the computer record was consulted it would have been clear that she had current leave to remain which was unaffected by the subsequent refusal. It follows that the real complaint on behalf of the Claimant is that the policy/practice was unlawful because of the way in which the system operated: either the negative immigration marker should never have been put on in the first place, or there should have been some mechanism which would have enabled the Border Force Officer to see at the PCP that a passenger with a negative immigration marker nonetheless had valid, leave to remain, without needing to resort to detention. In my judgment, on a proper analysis, this is the foundation for the Claimant’s contention that the policy/practice was unlawful.

In other words, the Claimant submits that there were inefficiencies in the system, which led to her being detained unnecessarily, and that this renders the policy/practice unlawful. The system in operation under the policy/practice should have been sophisticated enough to distinguish between the generality of persons who had been refused leave to enter in the past and those, like the Claimant, whose refusal could not negatively impact her pre-existing current leave to remain.

I am unable to accept this submission.

I will deal first the question whether the policy/practice is unlawful because the negative immigration marker should not have been placed on the WI in the first place. What this means, in practice, is that it is being suggested that the SSHD acted unlawfully by failing to instruct caseworkers, when leave is refused, to go on to consider and decide whether or not a negative immigration marker should be added to the WI as a result of the refusal. Instead, there was a blanket policy/practice of automatically adding a negative immigration marker on the WI which would have the inevitable consequence that a STOP marker would come up when the person next arrived at a port of entry.

In my judgment, it was not unlawful for the SSHD to have in place a system, arrangement, or policy, by which a negative immigration marker was added whenever an adverse immigration decision was made. It was not safe or practicable for the SSHD to expect or require caseworkers to exercise an independent judgment as to whether the adverse immigration decision was or was not capable of being relevant to a Border Force Officer’s decision on the next occasion that the person arrived at a port of entry to the United Kingdom. Ms Holloway’s witness statement makes clear that caseworkers who take decisions relating to applications for leave to remain on particular ground are specialists. They are tasked to deal with particular routes to immigration and so do not have the “big picture” knowledge or expertise that would enable them safely to decide that an adverse immigration decision could not, under any circumstances, be relevant to the decision whether to admit a person to the United Kingdom in other circumstances. It is the Border Force Officers who have this training and expertise. In those circumstances, it was not unlawful for the SSHD to put in place a system by which a negative immigration decision triggered a STOP marker, leaving it to the Border Force Officer on the next occasion to decide whether the individual should be permitted to enter the United Kingdom, even if this meant that the individual needed to be detained in order for this decision to be made.

It is true that, where limited leave to remain is granted following a prior refusal of leave, the caseworker is trusted to remove the negative immigration marker, but that is different. Where a new grant of limited leave to remain takes place, the position is straightforward: whatever the past immigration history might be, there is no current valid basis for a negative immigration marker or STOP marker. The position is very different where a refusal of limited leave follows a previous grant of leave. As the SSHD’s evidence and examples show, there is a wide range of factors and considerations which will determine whether the refusal has any impact upon the person’s right to enter and remain in the United Kingdom. The caseworker will not have the experience or knowledge to decide whether a previous grant of leave to remains means that the person continues to be entitled to enter and remain in the United Kingdom, notwithstanding a more recent refusal.

As for the suggestion that the policy/practice was unlawful because the issue could not be sorted out at the PCP without detaining the Claimant: in my view, this argument proves too much, because it would mean that any detention of a passenger for further examination will be unlawful if the information that would make clear that that passenger was entitled to enter the United Kingdom was already present, somewhere in the Home Office systems, or its bank of knowledge. I do not think that this is reasonable or realistic, or that it follows from the terms of Schedule 2 to the IA, that the policy/practice in operation at the relevant time was unlawful. It is clear that the statutory regime set out in Schedule to the IA does not make it unlawful for a Border Force Officer to detain a passenger in any circumstances except those in which there are actually grounds for refusing entry or curtailing or cancelling entry clearance. Nor is detention unlawful unless it is necessary to question the passenger before a decision is made. That cannot be how the powers granted to immigration officers by the IA 1971 were intended to operate. The whole point of the power to detain is to facilitate the gathering of information and the making of decisions. There will inevitably be a limit to the amount of information that is available to the Border Force Officer at the PCP, and so there will inevitably be cases in which the Border Force Officer needs to detain the passenger in order to obtain the necessary information. There is no restriction on the nature of the further examination. In particular, the statutory power to detain is not, expressly or by necessary implication, limited to cases in which the further examination takes the form of questioning. It may be that the information is available somewhere else within the Home Office, for example on a computer system that is not available on at the PCP, but that does not mean that the detention is unlawful. The fact remains that the detention is for the lawful purpose of carrying out further examination to decide whether the passenger should be permitted to enter the country (and whether leave to remain should be cancelled or curtailed).

The matter must be looked at from the Border Force Officer’s perspective: if, as in this case, the necessary information was not available to the Border Force Officer at the PCP, there was no alternative but to detain the passenger whilst the information was obtained. This is so, even if the information can be obtained by a method other than the questioning of the passenger.

As a result of changes to the computer systems used by the Border Force, it is now possible for the full information that would have enabled the Border Force Officer to work out that the Claimant held current leave to remain to be accessed at the PCP, and so it is no longer necessary to detain for a different computer system to be interrogated, in cases such as the Claimant’s. But the fact that the systems were differently configured in 2023 does not render the policy/practice unlawful. Put another way, the powers granted to immigration officers at the port of entry by the IA were not based on the assumption that the immigration officer at the port of entry would have access to all of the information held by the Home Office that might be relevant by the decision whether to grant leave to enter. The IA was enacted in 1971. The computer systems available to the Home Office in those days would have been rudimentary at best (if there were any at all). If there were any available for use by immigration officers at the PCP (which I doubt) they would have been very basic. It is inconceivable that Parliament would have assumed that the immigration officer at the PCP (or PCP-equivalent) would have had access to all of the information held by the Home Office and other relevant agencies on every passenger who might turn up, so that decisions could be taken at the PCP on the basis of all of the information available to the Home Office in relation to that person. It follows that the IA envisages that detentions will sometimes lawfully take place in order to enable Border Force Officers to obtain further information about passengers that is already in the possession of the Home Office, but which is not available to the Border Force Officer at the PCP.

In the present case, the only relevant information that was available to the Border Force Officer at the PCP, who had access to the BX computer system at his desk, was that there was STOP marker against the Claimant’s name, resulting from a negative immigration marker. He had no alternative but to detain her whilst he consulted the back-office computer system to find out from Atlas what the reason for the negative immigration marker was, and whether, as a result of the marker, there were grounds for refusing entry to the United Kingdom.

Returning, then, to the test as set out in R(A): In my judgment, the policy/practice under consideration did not positively authorise unlawful conduct in any cases, let alone in a material and identifiable number of cases. In accordance with Schedule 2, a Border Force Officer is entitled and empowered to detain a passenger if s/he does not have sufficient information at the PCP to take a decision. This is so even if it turns out that the passenger is entitled to enter the United Kingdom. The policy/practice does not authorise arbitrary or irrational decisions (such as the example given by Mr Squires KC in argument of detaining anyone who arrives wearing a red hat). The trigger for detention was an adverse immigration decision. Adverse immigration decisions may (and in a considerable number of cases, will) be relevant to whether leave to enter is granted, or whether existing leave should be cancelled or curtailed. The fact that not every adverse immigration decision will affect extant leave to remain does not mean that the Border Force Officer acts unlawfully by detaining a passenger to find out what the position is in their case.

It is not necessary, in my view, to look in any detail at the examples given by the parties about cases in which an adverse immigration decision cannot possibly, or on the other hand, might, result in a refusal of entry to the United Kingdom. Nor is it necessary to seek to work out the numbers of passengers who might be detained each year because of an adverse immigration decision as a result of the policy/practice, notwithstanding that they have valid prior leave to enter and remain. Again, it is not necessary for me to decide whether, as Ms Broadfoot KC submitted, the Claimant’s circumstances were extreme and unusual. This is because the Supreme Court made clear in R(A), at paragraph 65, that the question whether a policy will positively authorise unlawful conduct in a material and identifiable number of cases does not depend upon statistics or upon anecdotal evidence (which is anyway unreliable) but is something that can be determined at the time of introduction of the policy on the basis of the terms of the policy and the relevant law. As I have made clear, it will have been clear from the outset that there will be some people who, as a result of the policy/practice, will be detained even though they have extant leave to remain. Moreover, it will be clear from the outset that the necessary further information would be obtainable from an examination of the Home Office database, without the need to question the individual. I also accept that it is possible, in principle, to place the affected people into categories, such as the category of those who were refused leave to remain under the EUSS Scheme but who have pre-existing and continuing leave to remain on the family life route (the Claimant’s category). However, it is not so clear to me that these categories are necessarily clear and well-defined. There may be some people who, on the face of it, have current leave to remain despite a recent refusal, but whose overall immigration history raises red flags, or which at least means that some questioning needs to take place. There may be, for example, the possibility of forged documentation. In any event, as I have said, the fact remains that these are people whose immigration status, at the time, could only be determined after a relatively short period of detention. It was not unlawful for the SSHD to fail to design a different system altogether, which either imposed upon caseworkers the obligation to identify and resolve whether a negative immigration decision invalidated previous leave to remain, at the time of refusal, or which provided Border Force Officers at the PCP with all of the information that might possibly need to decide whether a person with an adverse immigration decision was nevertheless entitled to enter the United Kingdom.

I agree with the statement of principle (and practicality) that was made in submissions by counsel for the SSHD in MXK and which was repeated by Ms Broadfoot KC before me. It was recorded by Chamberlain J in MXK, at paragraph 49 as follows:

“[The powers in paragraph 2A of Schedule 2] are not conditional on the existence of a legal basis for curtailment or cancellation of leave. They exist to enable the officer to ascertain whether such a basis exists or not. The system is configured in such a way that, at the point of detention, the officer will know that there is a warning marker on the system, but not the reason for it. Some element of delay is inherent in checking the back-office system and a short period of detention may be required for this purpose.”

Ms Broadfoot KC submitted that the Claimant is inviting the Court to involve itself in granular detail relating to the administrative arrangements within the Home Office, in a way that oversteps the proper boundaries between the Court and a public authority. There is some force in this submission. The effect, if I were to accept the Claimant’s submissions on Ground 1A would be that the Court would be dictating to the Home Office how it should make its practical arrangements to comply with its obligations under Schedule 2 to the IA. This would be unfortunate, especially as this concerns a matter of high public policy, such as immigration control. It is also worth bearing in mind the delays caused by detentions are not of very great duration. The first three stops of the Claimant involved detentions lasting no longer than 20 minutes at most. Even the August 2023 detention lasted only 30 minutes, which is not an exceptional delay for those undertaking air travel. The conditions under which passengers such as the Claimant are detained are not onerous: they are sitting in a waiting area close to the PCPs. They are not handcuffed or kept in close confinement. The Claimant kept her phone. The reality was that the Claimant was in no danger of being refused entry to the United Kingdom, because she had, as she knew, current leave to remain. I fully accept that, despite this, the detention was stressful and worrying for the Claimant, but the hardship caused by the process of detention was not great, as compared to other types of detention.

However, notwithstanding this, if I had been persuaded that the arrangements in place in August 2023 demonstrated that the SSHD’s policy/practice authorised unlawful conduct in a material and identifiable number of cases, I would have found in the Claimant’s favour on this Ground.

For these reasons, in my judgment, the policy/practice complained of was lawful. Under the policy (and in contrast to the position under the policy under consideration in MXK), the SSHD’s Schedule 2 power to examine and detain were exercised consistently with the statutory purpose, namely to determine whether a person should be allowed to enter the United Kingdom and to determine whether the person’s leave should be curtailed or cancelled. Accordingly, Ground 1A fails.

The leading authority on whether a policy is unlawful because it is unpublished is R (Lumba) v SSHD [2011] UKSC 12, [2012] 1 AC 245 (“Lumba”). That case was concerned with an unpublished blanket policy that all foreign national prisoners would be detained, following the completion of their sentence of imprisonment, pending a decision whether they should be deported. This policy was inconsistent with the published policy that such prisoners should be detailed only when their continued detention was justified and within the power to detain in paragraph 2 of Schedule 3 to the IA. The Supreme Court (Lord Phillips of Worth Maltravers dissenting) held that the policy was unlawful because it was unpublished.

The reasoning of the majority of the Supreme Court was set out in the judgment of Lord Dyson JSC, at paragraphs 34-38:

“34 The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements.

35 The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay [1985] AC 318, 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it. In R (Anufrijeva) v Secretary of State for the Home Department [2004] 1AC 604, para 26, Lord Steyn said:

“Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.”

36 Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision. I would endorse the statement made by Stanley Burnton J in R (Salih) v Secretary of State for the Home Department [2003] EWHC 2273 at [52] that it is in general inconsistent with the constitutional imperative that statute law be made known for the government to withhold information about its policy relating to the exercise of a power conferred by statute. At para 72 of the judgment of the Court of Appeal in the present case, this statement was distinguished on the basis that it was made in the quite different context of the Secretary of State’s decision to withhold from the individuals concerned an internal policy relating to a statutory scheme designed for their benefit. This is not a satisfactory ground of distinction. The terms of a scheme which imposes penalties or other detriments are at least as important as one which confers benefits. As Mr Fordham puts it: why should it be impermissible to keep secret a policy of compensating those who have been unlawfully detained, but permissible to keep secret a policy which prescribes the criteria for their detention in the first place?

37 There was a real need to publish the detention policies in the present context. As Mr Husain points out, the Cullen policies provided that certain non-serious offenders could be considered for release. The failure to publish these policies meant that individuals who may have been wrongly assessed as having committed a crime that rendered them ineligible for release would remain detained, when in fact, had the policy been published, representations could have been made that they had a case for release.

38 The precise extent of how much detail of a policy is required to be disclosed was the subject of some debate before us. It is not practicable to attempt an exhaustive definition. It is common ground that there is no obligation to publish drafts when a policy is evolving and that there might be compelling reasons not to publish some policies, for example, where national security issues are in play. Nor is it necessary to publish details which are irrelevant to the substance of decisions made pursuant to the policy. What must, however, be published is that which a person who is affected by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made.”

In MXK, Chamberlain found that the policy of detaining those with NHS debts, even though they did not affect the validity of the persons’ leave to enter or remain, was unlawful, amongst other reasons, because it was unpublished. He dealt with this issue at paragraphs 74-77 of his judgment:

“74 The fact that the policy is unpublished supplies a further reason why it is unlawful. The main reason why the unpublished policy in Lumba was unlawful was because it was at odds with the Secretary of State’s published policy. However, the reasoning of Lord Dyson also supports the wider proposition that, where statute confers a broad power of detention on the executive, the rule of law calls for a transparent statement of the circumstances in which the power will be exercised: see at [34]. One benefit of publication is that the individual to whom the policy is applied can challenge an adverse decision: see at [36]. This is likely to be of greater relevance to the longer-term powers of detention at issue in Lumba than in the present case, though even here the evidence discloses some cases where lawyers were involved in challenging detentions lasting several hours.

75 There is another advantage to the publication of policy, which is vividly illustrated by the facts of these cases. People who have to interpret and apply the law sometimes make legal errors. This of course applies to lawyers and judges, but also to those who formulate and draft policy. Especially where the policy concerns the exercise of powers of detention, there is a powerful public interest in the early identification of any errors, so as to avoid unlawful detention and minimise the liability of the detaining authority. 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.

76 That is what seems to have happened here. The practice of detaining returning residents for examination in relation to NHS debts appears to have been identified through discussion between solicitors and immigration practitioners, each representing no more than a few clients. 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.

77 I should add that it is well established that there is no legal obligation to publish a policy, even one relating to the exercise of administrative powers of detention, where there are compelling national security or other public interest reasons against publication: see Lumba, [38]. As I have indicated, Mr Chapman submitted in the course of argument that the Secretary of State had determined that publication would be contrary to the public interest here. If that submission were to be seriously maintained, it would be necessary to consider carefully the evidence about the circumstances in which the decision was made and the reasons for it. But, as Mr Chapman later conceded, there was no such evidence in any of the witness statements adduced by the Secretary of State, or otherwise. Indeed, the evidence did not even attest to the fact that such a determination had been made. Courts cannot proceed on the basis of bare submissions that are not supported by evidence. Moreover, as Mr Squires pointed out, it is difficult to see how there could have been a compelling reason for non-publication of the policy, given that the Secretary of State has undertaken to publish the new policy once that has been formulated.”

On behalf of the Claimant, Mr Squires KC submitted that the present case is indistinguishable from MXK and falls squarely within the category of case in which a published policy is required. He said that the policy/practice involves a power to question and detain without any requirement for prior suspicion, and that this gives rise to a clear risk of inconsistent, arbitrary, or unfair decision making without a published policy. The Claimant’s own experience illustrates the danger, as there was no way for her to challenge the recurring stops and detention as they happened. The fact that the SSHD herself was unable to ascertain what happened in the Claimant’s case for some 17 months after the Pre-Action Protocol letter was sent to her highlights the powerful public interest in favour of having a published policy. It is clear from Lumba that it is not the case that the only reason why the law may require a policy to be published is so that those affected by it can make representations: it is a more fundamental requirement of the rule of law.

On behalf of the SSHD, Ms Broadfoot KC said that the present case can be distinguished from MXK. In the present case, there was no departure from the law and no departure from published policy. In any event, the details of the arrangements for stopping and detaining travellers at ports of entry are highly sensitive and confidential and so there are compelling national security reasons for non-publication of the policy/practice.

In his reply submissions at the hearing, Mr Squires KC said that it was not being suggested that the whole of the policy/practice had to be made public. It was just necessary to publish enough to enable those affected to know what to do, and this could be done in less than a side of A4.

I have found against the Claimant on Ground 1A. Had I found the policy/practice to be unlawful for the reason put forward by the Claimant on Ground 1A, this would have strengthened the Claimant’s arguments on Ground 1B, but my rejection of Ground 1A does not mean that the Claimant’s case on Ground 1B must necessarily fail.

It does, mean, however, that the present case can be distinguished from MXK in respect of the “unpublished policy” ground. The policy under consideration in MXK was a policy which, on proper analysis, had nothing whatsoever to do with the SSHD’s statutory powers under the IA, Schedule 2, to control entry to the United Kingdom or with the powers of Border Force Officers at the port of entry to decide whether or not to curtail or cancel leave to enter and remain. Indeed, in that case, not only were the contents of the policy secret, but nobody could have known that there was a policy about detaining passengers with NHS debts at all. It was particularly important, in those circumstances, that there be a published policy.

The policy/practice in the present case is very different. It is not a policy/practice under which Border Force Officers are directed or authorised to do something that is unlawful. It is not, unlike in Lumba, a policy/practice which is inconsistent with a published policy. Still further, the general policy/practice of detaining passengers to enable Border Force Officers to carry out further checks and examinations is published. It is published in primary legislation, in Schedule 2 to the IA itself. At that high level, therefore, the policy/practice under consideration has been published.

The next question is whether the SSHD is bound to publish in greater detail the policy/practice which consists of the advice/instructions given to Border Force Officers about the circumstances in which passengers may be detained. In my judgment, the answer is “no”, for several connected reasons. First, it would be wholly impractical to set out in writing the myriad reasons why a Border Force Officer might, lawfully and legitimately, decide to detain a passenger for further examination to be carried out. These reasons are not limited to questions or uncertainties about the passenger’s immigration status. A passenger might be stopped because of concerns that s/he might be a wanted criminal, or that they might be a terrorist, or because their presence might not be conducive to the public good. There are a number of different watchlists which are used to alert Border Force Officers to reasons why a person should be detained for further examination. Second, it is important not to lose sight of the fact that the policy/practice under consideration is not concerned with refusing entry to the UK or with cancelling or curtailing leave to remain: it is concerned with the detention of the passenger, in a public place, for a relatively short time, whilst further enquiries are being made. A person who is detained in those circumstances and who knows that s/he has leave to enter and remain is able to make representations about why s/he should be released and allowed into the country, even without having sight of the policy/practice which led to them being temporarily detained. In the Claimant’s case, she was told that she been detained because of a previous immigration refusal, and was able to speak straight away to her solicitor. Even if the policy/practice for detaining travellers was published, it would, in my view, be wholly unrealistic to think that a passenger at a PCP would be able make use of by making representations to the Border Force Officer at the PCP about why they should not be detained for further examination. Indeed, the reality is that a challenge to the decision to detain may well itself raise a red flag with the Border Force Officer. Third, and importantly, in my view there are obvious compelling national security/public interest reasons why the guidance given to Border Force Officers about the considerations which they should take into account when deciding whether or not to detain a passenger for further examination should not be published. Publication of such a policy/practice – which would more aptly be described as operational guidance – would be of use to those who are trying to evade immigration controls or to enter the United Kingdom for some improper purpose. It is true that, as was the case in MXK, the SSHD’s evidence did not go into any detail about the national security consequences if the policy/practice about reasons why passengers should be detained for further questioning were to be published. However, in MXK such evidence was necessary, because it was not self-evident that the publication of a policy about detaining passengers with NHS debts, which did not amount to a reason to refusing them entry, would undermine national security. MXK was not concerned with detention for further examination and, indeed, as I have said, in that case the detention of the claimants for further questioning was conceded to be lawful, even though the reason for their detention could not be a good reason to refuse them entry or to cancel or curtail their leave to remain. In contrast, in the present, case, I consider it to be self-evident that the publication of guidance about the reasons why a Border Force Officer should detain a passenger for further examination would be seriously damaging to national security.

I should add that the Claimant’s submissions recognised that it would go too far to require publication of all guidance about reasons for detaining passengers for further examination. It was Mr Squires KC’s submission that the published policy/guidance could and should be much narrower in scope. This brings me on to the next question that must be considered for the purposes of Ground 1B: was it unlawful not to publish the specific policy/practice to the effect that an adverse immigration decision will automatically trigger detention the next time that the person arrives back in the United Kingdom from a trip abroad (and so will do so even if the passenger has current leave to remain which was granted before a later adverse immigration decision)?

In my judgment, this was not unlawful, for a number of cumulative reasons. As I have already found, the policy/practice was not itself unlawful. It was not inconsistent with a published policy. The policy/practice in this case was one aspect of the broader policy/practice consisting of guidance to Border Force Officers about reasons to stop and detain passengers for further examination, and, as I have said, there is no duty to publish this broader policy/practice.

A further question is whether there would have been some useful purpose in the publication of the specific policy/practice because it would enable the Claimant to write to the Home Office, after the rejection of her leave to remain on the EUSS basis on 19 January 2023, in order to point out that this did not affect the leave to remain that had been granted on the family life basis on 16 January 2023, and that therefore it would not be a good reason to detain her the next time she re-entered the United Kingdom.

I agree with Ms Broadfoot KC that there was no legal duty for the SSHD to publish the policy so as to enable persons in the Claimant’s position to pursue this course of action as a means of avoiding being stopped on their next entry to the United Kingdom. It would undermine the whole watchlist system and would be unworkable. It would mean that any person who falls within a category which will trigger a hit on the system, a STOP marker, must be given the opportunity, in advance of travelling, to challenge the marker. This would, as Ms Broadfoot KC pointed out, be unnecessary if the person concerned had no intention of travelling outside the United Kingdom; it would be likely to trigger a great deal of extra work and satellite litigation; and, importantly in my view, would potentially lead to disclosure of sensitive information as to why, in a particular case, a stop would still be necessary. The key point, in my judgment, however, is that it is lawful for decisions about entry and about cancellation and curtailment of leave to remain to be taken by the Border Force Officer at the port of entry. There is no legal obligation for the SSHD to pre-approve entry at some earlier stage, or to engage in discussions with individuals about whether further examination will be necessary the next time that they arrive at a United Kingdom port of entry. Publication of the policy/practice would only be of any use if there was a legal duty to pre-approve entry in this manner. There is no such legal duty. it would lead to a sea-change in immigration procedures if there were, by the creation of an additional step in the process. This means that advance notification of a policy/practice which might give rise to grounds for detention would be of no use to those in a similar position to the Claimant.

Mr Squires KC pointed out that, in this case, the fact that the policy/practice was not written down in one place had caused confusion for the Home Office itself, because it was only some time after the litigation had begun that the Home Office was able to work out what the relevant policy/practice was. However, whilst this may be a good reason for setting down policies/practices such as these in a single document for the use of those working at the Home Office, it is not an a good argument in favour of publishing the policy/practice to the public at large.

Finally, some of the details of the policy/practice were referred to in public and the hearing in this case, and some, but not all, have been referred to in this judgment. There was a confidentiality ring in place to keep confidential some parts of the policy/practice. I do not consider that the fact that some aspects of the policy/practice have been made public in the course of these proceedings is a reason why the full details must now be published. Some aspects are not in the public domain, and it cannot be the case that a litigant can obtain publication of a policy or practice, in circumstances in which a public authority says that there are public interest reasons why it should be kept confidential, simply by issuing proceedings and obtaining disclosure.

For these reasons, I find that the policy/practice was not unlawful because it was not published, and so Ground 1B fails.

Ground 2 follows on from Grounds 1A and 1B. Leaving aside the issue that will be dealt with next under Ground 2A, the answer to the question in Ground 2 would otherwise be “no”.

It is not in dispute that the Claimant entered the United Kingdom on one occasion between the refusal of leave to enter on EUSS grounds on 19 January 2023 and the detention at Heathrow which led to these judicial review proceedings, on 20 August 2023. This was on 29 March 2023, when the Claimant returned to the United Kingdom from a trip to Ghana. As I have said, there is no direct evidence from the Border Force Officer who stopped her on this occasion, but there can be no doubt that the Claimant was detained because there was a STOP marker against her name, which has been triggered by the negative immigration marker resulting from the refusal of leave to enter dated 19 January. The Claimant was detained for about 15 minutes and was then allowed to enter the United Kingdom. It is also not in dispute that the negative immigration marker was not removed on this occasion. It is not possible to know whether this is because the Border Force Officer omitted to notify WICU that this should be done, or because WICU failed to remove the marker after such notification.

In the absence of any direct evidence on the matter, it was submitted by Ms Broadfoot KC on behalf of the SSHD that there could be many reasons for the non-deletion of the marker: the officer might have considered that the Claimant’s immigration history was complex and that the STOP marker should not be deleted at this point, the officer might have made a mistake in failing to delete it, or there might have been some other error given Ms Davis’s lengthy, and complex, immigration history.

In my judgment, it is clear that, in accordance with the relevant practice/policy, steps should have been taken to delete the negative immigration marker (and consequent STOP marker) against the Claimant’s name, following her stop on 29 March 2023. I am satisfied that the reason that this did not happen was human error. It is not clear whether the error was an error by the Border Force Officer, or by someone at WICU, but it does not matter in any event. I do not think that the failure to delete the marker can have had anything to do with the Claimant’s complex immigration history. Despite the complex history, it was possible for the Border Force Officer at Heathrow on 29 March 2023 to work out that the Claimant had current leave to remain. In those circumstances, the mere fact that the Claimant has a complex history would be no reason to refrain from notifying WICU with a view to the marker being removed. It had been established to the Border Force Officer’s satisfaction that, notwithstanding the recent refusal, the Claimant had valid and continuing leave to remain, and so the marker should have been removed. If the cause of the error had been the existence of the Claimant’s lengthy immigration history, this does not excuse or justify the error, as a matter of law.

In her oral submissions, Ms Broadfoot KC admitted that that reason for the failure to remove the negative immigration marker was, more likely than not, human error.

It follows that the SSHD breached her own policy/practice by failing to delete the relevant stop marker on or shortly after 29 March 2023. It was as a result of this error that the Claimant was detained on 20 August 2023. This would not have happened, if the policy had been followed properly. The “corrective mechanism” failed. I am not satisfied, however, that there is evidence of a systemic or routine failure on the part of the SSHD consisting of failures to delete the negative immigration marker in circumstances such as these. There are anecdotal references in the evidence of the Claimant and Ms Farrell to a few examples of where this might have happened, but in my view this is not sufficient to amount to proof of a systemic failure, given the number of arrivals into the United Kingdom each year and given the inevitability that, in the best ordered system, things will go wrong from time to time.

Nevertheless, I accept the submission on behalf of the Claimant that she had a right in law to be dealt with in accordance with the policy, unless there was a good reason for departing from it, akin to a legitimate expectation that the policy would be applied to her (even though she was unaware of it): see Lumba at paragraph 26; R (Nandarajah) v SSHD [2005] EWCA Civ 1363, at paragraph 68; and Mandalia v SSHD [2015] UKSC 59; [2015] 1 WLR 4546, at paragraphs 29-31. I also accept her submission that the breach of policy in her case was a public law error which bears on and is relevant to the decision to detain her on 20 August 2023, such as to render her detention unlawful and amounting to false imprisonment (see Lumba, paragraph 68).

The remaining question on this ground is whether this challenge is out of time, because it relates to an error which took place on or about 29 March 2023, rather than 20 August 2023. In my judgment, the unlawful act, consisting of the breach of the policy, took place on or about 29 March 2023. However, there are two alternative or cumulative reasons why this part of the Claimant’s claim is nevertheless in time. First, the Claimant could not possibly have known until 20 August 2023 that there had been a failure to remove the negative immigration marker on or about 29 March. It would only be when she next arrived in the United Kingdom that it would become apparent that she was still being detained for further examination. Also, the SSHD is not prejudiced by any delay in bringing this part of the claim. In particular, the SSHD is not disadvantaged by not being able to obtain direct evidence from the Border Force Officer who conducted the stop in March 2023 as to why the marker was not removed. There is no realistic possibility that the reason was anything other than human error. Accordingly, this is an appropriate case to extend time, if necessary, pursuant to CPR 3.1(2)(a). Second, even though the material breach of the policy/practice took place on or about 29 March 2023, it resulted in a second breach of policy/practice on 20 August, when she was stopped and detained again even though the negative immigration marker should no longer have been on the system. On that analysis, this part of the claim is in time. Either way, it would be wholly artificial to deprive the Claimant of a remedy because she did not bring this part of her claim at a time when should could not possibly have known of the existence of a basis for the claim.

For these reasons, Ground 2A succeeds.

Section 6(1) of the Human Rights Act 1998 provides that (subject to exceptions in section 6(2) which have no relevance for present purposes) it is unlawful for a public authority to act in a way which is incompatible with a Convention right. The rights and fundamental freedoms set out in Articles 5 and 8 are “Convention rights” for this purpose (see Human Rights Act, section 1(1)).

Article 5 provides, in relevant part :

“1.Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

….

(b)

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

….

(f)

the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

Article 8 provides:

“1.Everyone has the right to respect for his private and family life, his home and his correspondence.

2There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

It is appropriate to approach this Ground in two stages. The first question is whether Article 5 and /or 8 of the ECHR are engaged. The second question is whether, if so, there are sufficient constraints on the exercise of IA, Sch 2, to protect against arbitrary, disproportionate, or discriminatory usage and to satisfy the legality requirements of Articles 5 and /or 8 ECHR (the “legality” issue).

Ms Luh made the bulk of the oral submissions on behalf of the Claimant on the questions as to whether Article 5 and/or Article 8 were engaged She submitted that both Article 5 and Article 8 were engaged on the facts of this case. Accordingly, the power being exercised had to be governed by a legal regime that ensured that any interference with her rights was “prescribed by law” for the purposes of Article 5 and “in accordance with the law” for the purposes of Article 8. There is no difference between these “legality” requirements, which are of the greatest possible importance. The core of the “legality” requirement is that where a discretion is afforded with, on the face of it, permits interference with Article 5/8 rights, “the law must indicate with sufficient clarity the scope of [the discretion] and the manner of its exercise.” (Beghal v UK (2019) 29 EHHR 28, at paragraph 88).

On behalf of the SSHD, Ms Broadfoot KC submitted that it was clear that Article 5 was not engaged when a passenger was detained for a short time at a point of entry to determine whether she had the right to enter the country. She relied in particular upon to decisions of the European Court of Human Rights (“ECtHR”): Gahramanov v Azerbaijan (App 26291, 15 October 2013, “Gahramanov”) and ZA v Russia (2020) 70 EHRR 23 (ZA). If, contrary to her primary submissions, the Articles (or either of them) were engaged, the “legality” requirement was satisfied because there were sufficient safeguards in place to protect the individual against arbitrary interference.

In MXK, the claimants advanced a similar argument to that advanced by the Claimant in the present case, in reliance upon Articles 5 and 8. However, in the event, having found for the claimants in MXK on domestic law grounds, Chamberlain J did not need to resolve the arguments on the Convention ground (see judgment, paragraph 79).

The question is whether the detention of the Claimant on 20 August 2023 amounted to the deprivation of her liberty for the purposes of Article 5. The fact that, as I have found (and as was not in dispute), she was “detained” as a matter of domestic law and domestic statutory interpretation, and that she was falsely imprisoned, does not necessarily mean that she suffered deprivation of her liberty for Article 5 purposes. This was made clear by the Supreme Court in R (Jalloh, formerly Jollah) v SSHD [2020] UKSC 4; [2021] AC 262 (“Jalloh”), at paragraph 34, in which the Court said that there could be imprisonment at common law without there being deprivation of liberty under Article 5.

The test for whether there has been a deprivation of liberty for the purposes of Article 5 is set out in the judgment of the ECtHR in Gillan v United Kingdom (2010) EHRR 45 (“Gillan”). At paragraph 56 of its judgment, the ECtHR said:

“The Court recalls that art.5(1) is not concerned with mere restrictions on liberty of movement; such restrictions are governed by art.2 of Protocol No.4, which has not been ratified by the United Kingdom. In order to determine whether someone has been “deprived of his liberty” within the meaning of art.5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of art.5 depends.”

Gillan was concerned with a member of the public and a journalist who were each stopped and searched by the police under the Terrorism Act 2000 whilst on their way to a demonstration at an arms fair. The member of the public was detained for 20 minutes. There was a dispute about the length of time for which the journalist was detained. She said it was for 30 minutes and the police said it was for 5 minutes. They were required to remain where they were and to submit to the search. If they had refused they would have been liable to arrest, detention at a police station and criminal charges. The ECtHR decided that it did not need finally to determine whether Article 5 was engaged, because Article 8 was engaged, but the Court said that this element of coercion is indicative of a deprivation of liberty within the meaning of Article 5(1) (judgment, paragraph 57).

In Jollah, the Supreme Court described the test in Gillan as being a “multi-factorial” approach and a matter of degree (paragraph 29). The Supreme Court in Jollah did not have to decide whether the measure affecting the claimant in that case, an 8-hour overnight curfew monitored by electronic tagging, was a deprivation of liberty for the purposes of Article 5, but the Court referred with approval (see judgment, paragraph 34) to two cases, Austin v United Kingdom (2012) 55 EHRR 14 and Walker v Commissioner of Police for the Metropolis [2015] 1 WLR 312. In Austin, the Court of Appeal, House of Lords and ECtHR all held that “kettling” the claimants for several hours at Oxford Circus, though imprisonment at common law, was not a deprivation of liberty within the meaning of Article 5. Similarly, in Walker, the Court of Appeal held that for a police officer to stand in the doorway of a house to prevent a claimant for leaving for a very short time, whilst imprisonment, was not deprivation of liberty at common law. On the other hand, in SSHD v JJ [2007] UKHL 45; [2008] AC 385, the House of Lords held that a 16-hour curfew was a deprivation of liberty, though there was no majority for the view that an 8-hour curfew would engage Article 5.

The decision of the ECtHR which is closest to the present case are Gharamanov. Gharamanov was a decision of the ECtHR, First Section.

Mr Gharamanov was a national of Azerbaijan who was a political opponent of the government. In 2002, he was sentenced to 10 years’ imprisonment for unlawful possession of weapons and conspiracy to usurp state power by force. In March 2005 he was given a presidential pardon and was dispensed from serving the remainder of his sentence. On 18 July 2006, Mr Gharamanov arrived at Baku airport, intending to fly to Dubai. When he was at passport control, he was prevented from boarding the flight and was taken to a room belonging to the State Border Service (“SBS”) to wait there until officers of the Ministry of National Security (“MNS”) arrived. He was not told why he was stopped. During his stay in the SBS room he was not free to leave and had no opportunity to contact others. His baggage was searched. Eventually, after a phone call was received by officers from an unspecified person, he was allowed to leave the airport. He was not given a report to explain why he had been detained. There was a dispute between him and the State as regards whether his detention was for 2 hours or 4 hours, but the ECtHR proceeded on the basis that it assumed that the detention was for the longer period.

The reason for Mr Gharamanov’s detention was that his name had appeared on a “Border crossing restriction” list with the status “to be stopped”. This was a mistake. It had happened because the MNS had failed to remove his name from the “Border crossing restriction” list after he had been pardoned by presidential decree in 2005.

The Court said, at paragraph 38 of its judgment, that Article 5 is not concerned with mere restrictions on the liberty of movement. The Court reiterated the multi-factorial test. The Court continued, at paragraphs 39-41:

“39.

The Court further points out that Article 5 § 1 may apply to deprivations of liberty of a very short length, for example where applicants were stopped for a search which did not exceed thirty minutes (see Gillan and Quinton v. the United Kingdom, no. 4158/05, § 57, ECHR 2010 (extracts)) or the length of time during which the applicant was held at the police station did not exceed forty-five minutes (see Shimovolos v. Russia, no. 30194/09, §§ 48-50, 21 June 2011). However, the Court observes that in the present case the applicant was detained in circumstances which were due to intervention by the police. In the instant case the applicant was stopped by border officials following passport control in an international airport because his name appeared under the status “to be stopped” in the database of the SBS.

40.

The Court reiterates in this connection that the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good (see Austin and Others, cited above, § 59). An air traveller may be seen in this regard as consenting to a series of security checks by choosing to travel by plane (see Gillan and Quinton, cited above, § 64). In particular, these security checks may include having his identity papers checked or having his baggage searched, and also waiting for further enquiries to be carried out to establish his identity or determine that he does not represent a security risk for the flight.

41.

The Court accepts in this respect that where a passenger has been stopped by border officials during border control in an airport in order to clarify his situation and where this detention has not exceeded the time strictly necessary to comply with relevant formalities, no issue arises under Article 5 of the Convention.”

The Court then went on examine the circumstances of Mr Gahramanov’s detention. It pointed out that he was not handcuffed or detained in a special detention facility, though he was not free to leave the room. His stay ended immediately after the clarification of the situation. Even assuming Mr Gahramanov’s version of events was correct, nothing proved that his stay in the SBS room exceeded the time strictly necessary for search his baggage and complying with the relevant administrative formalities. The Court noted that the SBS officer reasonably believed when he stopped Mr Gahramanov that that there was a need to carry out further checks on his identity because of the “stop” alert, albeit that this was because of an administrative error. Finally, Mr Gharamanov was free to leave the airport immediate after the situation had been clarified (paragraphs 44 and 45).

In light of those facts, the Court found that there had been no deprivation of liberty within the meaning of Article 5. Accordingly, the Court found that the complaint was inadmissible (judgment, paragraphs 46 and 47).

ZA was a decision of the Grand Chamber of the ECtHR. There were four applicants. Each had arrived at Moscow Sheremetyvo Airport, was denied entry and the airport and had their passport seized. They each applied for, but were not granted, asylum. Each eventually left Russia. The first applicant spent seven months and 19 days in the transit zone of the airport; the second applicant spent five months and 1 day in the transit zone; the third applicant spent one year, nine months and 28 days there; and the fourth applicant spent seven months and 22 days there. Whilst they were held in the transit zone, the applicants slept on a mattress on the floor in the boarding area. They had limited access to showers and no access to fresh air or outdoor exercise. They had no medical assistance and no means of appointing a representative to engage with public authorities on their behalf.

The Grand Chamber held, not surprisingly, that there had been a deprivation of the liberty of the applicants for the purposes of Article 5. Once again, the Court emphasised that the approach was multi-factorial and that there was a distinction between deprivation of liberty and restriction of liberty. At paragraph 135 the Grand Chamber said:

“The Court considers that in drawing the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of asylum seekers, its approach should be practical and realistic, having regard to the present-day conditions and challenges. It is important in particular to recognise the states’ right, subject to their international obligations, to control their borders and to take measures against foreigners circumventing restrictions on immigration.”

At paragraph 144 of the judgment, the Grand Chamber said:

“The right of states to control the entry of foreigners into their territory necessarily implies that admission authorisation may be conditional on compliance with relevant requirements. Therefore, absent other significant factors, the situation of an individual applying for entry and waiting for a short period for the verification of his or her right to enter cannot be described as deprivation of liberty imputable to the state, since in such cases the state authorities have undertaken vis-à-vis the individual no other steps than reacting to his or her wish to enter by carrying out the necessary verifications.”

At the end of this paragraph, there was a footnote saying, “See, mutatis mutandis, Gharamanov….” In my judgment, it is clear from this paragraph that the Grand Chamber approved and endorsed the reasoning and conclusion of the First Section of the Court in Gharamanov.

There are striking similarities between the facts of Gharamanov and the facts of the present case. In both cases, the passenger was stopped because they were on a watchlist which instructed the officer at the border to stop them. In both cases, this was the result of a mistake, and, if the system had been working properly, the detention would not have taken place. Again, in both cases the passenger was taken to a room at the airport but was not handcuffed or otherwise restrained. Neither passenger was given a detailed explanation of the reason for the stop. In both cases the passenger was free to leave once the matter had been clarified. The main difference was that Mr Gharamanov was detained for considerably longer than the Claimant. The Court proceeded on the basis that the detention was for four hours. There are other differences: in the Claimant’s case she was free to leave the airport and to continue her journey, whereas the effect of Mr Gharamanov’s detention was that he missed his flight and had to cancel, or at least to delay, his trip. Also, it may well be appropriate to infer that, whilst the detention was on-going, Mr Gharamanov could not have been as confident that he would shortly be released as the Claimant will have been.

In my judgment, it is clear from Gharamanov and from ZA that the detention of the Claimant on 20 August 2023 did not entail a deprivation of her liberty for the purposes of Article 5 of the ECHR. The Claimant’s detention was considerably shorter than Mr Gharamanov’s and if his detention did not amount to a deprivation of liberty it is all the clearer that the Claimant’s detention did not do so.

Gillan and the other cases that I have cited make clear that context is very important. Paragraph 40 of Gharamanov makes clear that a passenger consents to a series of security checks by choosing to travel by plane. Paragraph 41 makes clear that a short detention during border control in order to clarify a passenger’s situation will not engage Article 5, provided that the detention does not exceed the time strictly necessary to comply with relevant formalities. A “short” detention during this period can extend to a detention of several hours, as it did in Gharamanov. A detention to clarify the situation does not engage Article 5 just because (as in both Gharamanov’s case and in the Claimant’s case) the stop was the result of an entry on a database that should have been removed. In both cases, the officer at the border acted properly because he or or she was unaware of the mistake, and so the detention was “strictly necessary”. In other words, it can be strictly necessary to detain at the border in order to carry out the necessary formalities (i.e. the checks) even if the formalities consist of finding out that the stop marker should have been removed some time ago. Finally, the reference to “strictly necessary” does not impose a very short maximum time limit. In Gharamanov, the “strictly necessary” period was four hours.

The conclusion that Article 5 was not engaged in the Claimant’s case is also consistent with the reasoning of the Grand Chamber in ZA. The Grand Chamber referred to the need to be “practical and realistic” in the context of immigration decisions. The Grand Chamber recognised the importance, in this context, of the right of states to control the entry of foreigners into their territory.

In my judgment, the conclusion that Article 5 is not engaged in the present case is also consistent with the domestic authorities, especially Jalloh.

The right to private and family life under Article 8 is a broad concept which encompasses personal autonomy and “the physical and psychological integrity of a person” (Munjaz v United Kingdom [2012] 1 MHLR 351, at paragraph 78). In Niemitz v Germany (1993) 16 EHRR 97, at paragraph 39, the ECtHR said that the Article 8 right to private and family life encompasses a range of interests which is not capable of “exhaustive definition”.

Unlike the position in relation to Article 5, the parties have not found any cases dealing with whether Article 8 is engaged on similar facts to the present case. That is not, perhaps, surprising, because cases of detention at airports obviously raise issues of deprivation of liberty, whereas, at least at first sight, they have less to do with the infringement of family life rights which is the purview of Article 8.

In my view, it would be very surprising if Article 8 were engaged on facts such as these, given that Article 5 is not engaged. The parties are agreed that the “legality” test applies in the same way, whether it is Article 5 or Article 8 that applies. It would, in my opinion, be strange if the rights (from the individual’s point of view) and the restrictions and liabilities (from the state’s point of view) do not arise under Article 5 but arise under Article 8. It would mean that the reasons of high principle identified by the ECtHR in cases such as Gharamanov and ZA which determine where the line is to be drawn between what is a deprivation of liberty and what is not would be of no significance and would come to nothing. The careful delineation of the scope of the engagement of Article 5 by the ECtHR, and the public policy considerations behind it, would be circumvented if a claimant could rely on Article 8, even where Article 5 is not engaged. Moreover, as Ms Broadfoot KC pointed out, it would have been open to the Court in Gharamanov to say that Article 8 was engaged in that case (even if the applicant had not relied on it) but the Court did not do so. Nor did the Grand Chamber in ZA say that it was a waste of time worrying about whether Article 5 was engaged, as Article 8 was engaged and the applicants had exactly the same protections under that Article as they had under Article 5.

It is true that, in Gillan, the ECtHR dealt with the case on the basis that Article 8 was engaged, and said that therefore it was not necessary to decide whether Article 5 was engaged, but that case was concerned with a very different factual situation, namely stop-and-search powers on the street. It was the requirement for the applicants to submit to a detailed search, rather than the detentions whilst the searches took place, that amounted to the clear interference with the right to respect to private life for the purposes of Article 8 (see judgment, paragraphs 63-65). Niemitz was also a case concerned with a search, of a lawyer’s office, and the central issue in that case was whether “private life” could encompass business and professional life. Munjaz was a case on very different facts from the present, in which the ECtHR held that Article 8 was engaged by a period of compulsory seclusion (solitary confinement) of a detained psychiatric patient: it was the seclusion, rather than the detention, that engaged Article 8: judgment, paragraph 80. Indeed, the Court held that the seclusion was not a deprivation of liberty for the purposes of Article 5: judgment paragraph 68.

At paragraph 64 of Gillan, the Court said:

“The Court is also unpersuaded by the analogy drawn with the search to which passengers uncomplainingly submit at airports or at the entrance of a public building. It does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual’s art.8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under s.44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.”

I mention in passing that it is, with respect, somewhat unrealistic to think that a person who is in line for the bag search at an airport could nowadays simply leave their personal items behind and walk away. If that was attempted, it would almost certainly trigger a security alert and detention of the individual by the security staff. However, more pertinently, this passage in my view again shows that the focus of the ECtHR in Gillan was on the intrusiveness of a personal search, on the basis that this is what caused an interference with the right to respect of private life and so engaged Article 8. Where the treatment complained of is primarily detention, rather than a search, in my view it falls (if at all) squarely within Article 5, rather than Article 8, and I struggle to think of a situation, certainly one involving immigration authorities at an airport or other national port of entry, where detention could engage Article 8 and yet not engage Article 5. I accept the SSHD’s submission that the thrust of the ECtHR case law is that Article 8 is not engaged in circumstances such as those that arose in the present case because people are aware of and effectively consent to the ordinary course of border and security checks made at airports. Everyone can be taken to know that there will be checks, that sometimes further checks are required, and that these may delay a passenger’s onward journey. These do not engage a person’s Article 8 rights. This is so even though the detention may be stressful and distressing, and may involve questioning.

Once again, if I am right that Article 8 is not engaged by detention of the type that took place on 20 August 2023, it is all the clearer that Article 8 will not be engaged when passengers are delayed whilst queuing up at the border, or are held at the PCP or e-gates.

In my opinion, it is clear from the authorities that there is no breach of Convention rights if a passenger is subjected to detention at an airport for a relatively short period to clarify their situation, even if the detention lasts a couple of hours, and even if the original reason for the stop was an error, because the relevant watchlist or database had not been updated. In my view, in such circumstances, neither Article 5 or Article 8 is engaged. It is not necessary, therefore, for me to go on to consider whether, if either Article 5 or Article 8 is engaged, the power to subject the Claimant to further examination was insufficiently prescribed by law. Moreover, as Chamberlain J said in MXK, since the arguments on “legality” are factually and legally complex they ought to be resolved in a case where they matter to the outcome. I will observe, however, that in light of the observations of the ECtHR in cases such as Gharamanov and ZA, it seems to me unlikely, even if I am wrong and Article 8 is engaged, that the treatment of the Claimant on 20 August 2023 would be a breach of the “legality” principle for the purposes of that Article.

This Ground can be dealt with relatively shortly. The SSHD accepts that she is in breach of her PSED as alleged by the Claimant, but invites the Court not to grant any relief in respect of this Ground because she is currently in the process of finalising an Equality Impact Assessment (“EIA”) for Schedule 2 examinations.

Section 149 of the EA 2010 sets out the PSED. Section 149(1) provides:

“(1)A public authority must, in the exercise of its functions, have due regard to the need to—

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

The Claimant submits that the SSHD is in breach of her PSED in relation to her exercise of her powers under the IA Schedule 2.

I will gratefully adopt the summary of the law about breaches of the PSED that was set out by Chamberlain J in MXK paragraphs 83 and 84.

“83 The principles applicable in a claim alleging breach of s. 149 of the 2010 Act have been developed in a series of cases. They were summarised in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, [2014] EqLR 60, [25] (approved in Hotak v Southwark LBC [2015] UKSC 30, [2016] AC 811, [73]) and R (Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058, [2020] 1 WLR 5037. In the last of these cases, at [175], the Court of Appeal identified six principles:

“(1)

The PSED must be fulfilled before and at the time when a particular policy is being considered.

(2)

The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes.

(3)

The duty is non-delegable.

(4)

The duty is a continuing one.

(5)

If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required.

(6)

Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision.

84 Often, compliance with s. 149 is evidenced by the production of a formal EIA. But there is no statutory requirement to produce such a document. Indeed, there is no obligation to produce any contemporaneous document. However, if there is no such document it may be more difficult to show that the duty has been discharged “in substance” and “with rigour”.

In MXK, the claimants advanced the same argument in relation to breach of the PSED in respect of the exercise of the SSHD’s powers under Schedule 2 as are advanced in the present case. Chamberlain J found that there had been such a breach (judgment, paragraphs 85-91). He said that there is no evidence that the Secretary of State or any official has ever considered the equality impacts of her use of the examination and detention powers in Schedule 2, let alone kept those impacts under continuing review (paragraph 88).

In the current proceedings, the SSHD does not challenge the conclusion that was reached by Chamberlain J on the PSED issue in MXK. However, the SSHD says that things have now moved on. The SSHD has now undertaken an EIA for the exercise of Schedule 2 powers which is progressing through internal clearance and publication processes. The SSHD is also undertaking an EIA on the Detention General Instructions. The relevant processes are not yet complete. The SSHD cannot currently commit to a date by which this will be finalised. In these circumstances, the SSHD invites the Court not to grant any relief in respect of this ground.

The position, therefore, is that the SSHD does not dispute that she is still in breach of the PSED in respect of her Schedule 2 powers, but says that I should not grant relief because she is well on the way towards remedying this. I agree with Mr Squires KC that this is not a reason for the Court to decline to give relief. There is still “no evidence” that the SSHD or any official has considered (i.e. completed the consideration of) the equality impacts of her use of Schedule 2. The MXK judgment was handed down three years ago, on 26 May 2023, and so it cannot be said that the SSHD has acted with particular urgency. The SSHD said as early as the date of her Detailed Grounds of Defence, on 14 February 2025, well over a year ago, that the EIA was progressing through internal clearance and publication processes, so it does not appear that much progress has been made in recent months. The only relief that the Claimant seeks under this Ground is declaratory relief. This is a discretionary form of relief, and I consider that it is appropriate, in all of the circumstances, to grant the relief.

Accordingly, Ground 4 succeeds.

For the reasons set out in this judgment:

I will invite the parties to draft an appropriate order to reflect the outcome of these proceedings and to provide the Court with written submissions on any consequential matters that are not agreed.