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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Khalid & Ors, R (On the Application Of) v (Secretary of State for the Home Department & Anor  EWHC 2156 (Admin) (14 July 2021)
Cite as:  EWHC 2156 (Admin)
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QUEEN'S BENCH DIVISION
B e f o r e :
| THE QUEEN
on the application of
(1) KHAN OMER KHALID
(2) YASIR WAHAB & Ors
(3) FAISAL SAEED
- and –
|SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE
- and –
|(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(2) SECRETARY OF STATE FOR TRANSPORT
DR M. BIRDLING (instructed by the Government Legal Department) appeared on behalf of the Defendant.
Crown Copyright ©
MR JUSTICE LINDEN:
(a) The defendant's decision to place Pakistan on the Red List was irrational (Ground 1).
(b) The requirement to quarantine in a designated hotel amounts to unlawful deprivation of liberty contrary to Article 5 of the European Convention on Human Rights (Ground 2).
(c) The charges levied for the period of quarantine are excessive (Ground 3).
The legislative framework
"27. Pakistan was put on the Red-List ..for the following reasons:
a. Pakistan was undergoing a third wave of COVID-19 with its epidemiological picture worsening.
b. Overall traveller positivity was high (4.6% between 3-17 March 2021 and 4.6% since 15 February 2021). Since 15 February 2021, six cases of the South Africa-associated VoC (VOC-20DEC-02) and one case of the Bristol-associated VoC (VOC-21FEB-02) had been detected from 690 sequenced samples through mandatory testing (1%).
c. Traveller volumes to the UK from Pakistan were very high (11,680 arrivals in the week ending 18 March 2021) and while exemptions were at low levels (3%) many of these travellers would enter UK communities directly.
d. Pakistan has limited genomic sequencing capability. Although it published full-length sequences in 2020, it has not done so since December 2020, making it difficult to assess with any real confidence the presence or absence of VoCs in Pakistan.
e. The JBC considered that Pakistan posed the third-highest risk of countries not yet on the Red-List, behind Kenya and Bangladesh. Philippines was the fourth-highest rated country with India fifth."
"28. India was, at the time of the decision to place Pakistan on the Red-List, considered to pose less of a risk than Pakistan and the other countries identified. Overall, traveller positivity was 1.6% between 3-17 March 2021 and 1.6% since 15 February 2021. 1 out of 139 sequences were found to contain the South Africa VoC (0.7%). However, India was kept under careful review given that:
a. It has very limited genomic sequencing capability. The latest sequence was available on 1 March 2021 but was collected on 31 January 2021. The location data are ambiguous and usually includes only the state. Samples are also geographically sparse.
b. The epidemiological situation had worsened since early February 2021.
c. Traveller volumes to the UK were high (9.615 arrivals in the week commencing 22 March 2021).
29. India was subsequently added to the Red-List on 23 April 2021 by the Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 13) Regulation 2021 following: additional imported VoCs; the emergence of 3 new VuIs from India (one now confirmed as a VoC); and, an increase in positivity amongst travellers."
The rationality challenge
"Based on evidence available in the public domain, it is arguable that Pakistan did not fit the criteria to be added to the list and was, therefore, perverse/irrational."
They go on to argue that:
"Publicly available data do not support the contention that Pakistan was lawfully and rationally added to the red list of countries."
"The countries subject to additional measures have all been judged to pose a risk to the United Kingdom from importation of a variant of concern. Requiring self-isolation in designated accommodation will help prevent community transmission and result in important public health benefits."
"In this context, as in the case of the other qualified rights, we consider that a wide margin of judgement must be afforded to the Government and to Parliament. This is on the well-established grounds both of democratic accountability and institutional competence. We bear in mind that the Secretary of State had access to expert advice which was particularly important in the context of a new virus and where scientific knowledge was inevitably developing at a fast pace. The fact that others may disagree with some of those expert views is neither here nor there. The Government was entitled to proceed on the basis of the advice which it was receiving and balance the public health advice with other matters."
"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:
(e) the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound
mind, alcoholics or drug addicts or vagrants."
"Deprivation of liberty might take a variety of forms other than classic detention in prison or strict arrest…..the court's task was to consider the concrete situation of the particular individual and taking account of a whole range of criteria, including the type, duration, effects and manner of implementation of the measures in question to assess their impact on him in the context of the life he might otherwise have been living."
"… the judge has to decide as a matter of judgement whether the restrictions overall deprive the controlee of, rather than merely restrict, his liberty."
"The obligation to stay at home was subject to numerous express exceptions which were non-exhaustive and the overriding exception of having a reasonable excuse" (see  WLR 2326 -).
"The Secretary of State or a person designated by the Secretary of State may impose a charge in relation to the accommodation, transport and testing package mentioned in the definition of a "managed self-isolation package" and the Secretary of State may recover any sum owed by P pursuant to such a charge as a debt."
Conclusion on permission
"53.1 Disclosure of the scientific evidence/data relied upon by the Defendant to add Pakistan to the red list of countries.
53.2 Disclosure of the scientific evidence/data relied upon by the Defendant to add Pakistan and other countries to the red list – such disclosure will permit the Court to compare the respective decisions to add individual countries to the list. In particular, the Claimant would invite the Court to order the disclosure of (in each case, disclosure will require comparative data from other relevant countries which may, depending on the Defendant's process, include countries not on the red list):
53.2.1 The numbers of people travelling into the United Kingdom as used by the Defendant to add Pakistan and other countries to the red list.
53.2.2 The data held and used by the Defendant to reach the conclusion that Pakistan's genomic sequencing was inadequate (in comparison to other countries).
53.2.3 The comparative number of COVID tests taken in Pakistan and other countries.
53.2.4 The number of infected persons entering the United Kingdom.
53.2.5 The number of infected persons entering with a variant of concern.
53.3 The financial basis upon which the Health Secretary arrived at a figure of £1,750 for managed quarantine with a breakdown of how that figure is allocated to various components of the quarantine strategy."
"The duty of candour to and co-operation with the court, which falls upon a public authority that is a defendant to a claim for judicial review, is a self-policing duty. A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the court in ensuring that these high duties are fulfilled. The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. Witness statements filed on behalf of public authorities in judicial review cases must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. The duty of candour is a duty to disclose all material facts known to a party in judicial review proceedings. The duty not to mislead the court can occur by omission, for example by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact".
"The Claimant sets out a series of requests for disclosure at §53 of the Grounds of Review. Usual principles of disclosure, including the disclosure of documents, do not apply in judicial review. This is because of the duty of candour, which requires defendants to disclose all material facts and to assist the Court with full and accurate explanations of all relevant facts: R (Citizen UK) v SSHD  EWCA 1812, §106 (Singh LJ) and Practice Direction 54A, para. 12.1. The Secretary of State considers that this duty has been satisfied by the information contained within these Summary Grounds."