Appealing mandatory hotel quarantine: a procedural perspective

 

Cian Henry, Honourable Society of King's Inns

Introduction

Mandatory hotel quarantine (“MHQ”) has been the source of significant controversy since its introduction in Ireland via the Health (Amendment) Act 2021 in March of this year.  Much debate has centred on whether the deprivation of liberty and curtailment of associated rights which is entailed by MHQ can be justified by the public health rationale which underpins it.  Approaching this question from a legal perspective, posts on this blog have considered both the constitutional and EU law dimensions of MHQ generally.  The prevailing view emerging from legal commentators, as reflected in a comment by David Kenny to the Irish Times, is that the substance of the MHQ measures is likely to survive constitutional challenge, but aspects of the procedure underpinning it may be more vulnerable.  

 

In this post, focus is placed on an important procedural aspect of MHQ, namely the process by which a person can review the imposition of MHQ on them.  This review procedure has generated much media attention in recent weeks, in light of a number of notable appeals brought by individuals in MHQ.  In many of these cases, these people have failed in multiple attempts to review their obligation to remain in MHQ via the statutory procedure and have initiated Article 40 proceedings to challenge what they maintain is their wrongful detention.   In many cases, the State has released persons bringing Article 40 proceedings such that the proceedings have been struck out; however, several of these cases shed light on certain notable features of the review procedure and will be considered later in this piece.  This piece will provide a short analysis of these features, but first a summary of the measures governing the MHQ review procedure is provided. 

 

Outline review procedure in Health Act

The review procedure for MHQ is provided for by s. 38B(17) of the Health Act 1947, as amended.  A review is triggered by a request from a quarantined person.  Where such a request is made, the Act requires a designated appeals officer (“DAO”) to conduct a review as soon as practicable and in any case within 24 hours of the making of the request.  A DAO is described by s. 38B(25) of the Act as “an independent appeals officer designated by the Minister”.  In answer to a parliamentary question, the Minister for Health has clarified that there are 35 appeals officers, who have been selected from the ranks of barristers who have provided a previous service to the International Protection Appeals Tribunal.  The DAO responsible for reviewing a particular request is required to call on and consider “such evidence as he or she requires to make a decision in relation to that request”.  Having done so, they must either determine that the person is no longer obliged to remain in quarantine or refuse the request and provide reasons for such refusal. 

 

Section 38B(16) sets out the possible grounds on which a person can rely when making a request for review.  It would appear from the language of the Act that the grounds therein listed are intended to be exhaustive.  For purposes of illustration, the seven grounds listed can be divided into two categories: one where release is justified on the basis of a reduced risk of COVID transmission, the other where release is justified on non-COVID related grounds.  The first category includes instances where a person never met the entry requirements for MHQ (s. 38B(16)(a)), where they now meet the exit requirements ((b) and (c)), and where they have undergone pre-quarantine and certain testing (g). The second category, being less technical and touching more directly on certain kinds of rights deprivations, has generated more controversy.  In particular, there is an exemption for medical and other exceptional reasons including the necessity of providing care for a vulnerable person (d), urgent humanitarian grounds (e), and for dependant persons with special needs or other circumstances pertaining to them which make quarantine inappropriate (f).  It should be noted that, where the DAO is satisfied that a ground for appeal has been raised, they must determine that the person is no longer obliged to remain in MHQ.  In this sense, s. 38B(17) does not  appear to vest the DAO with discretion as to the determination of appeals.

 

Regulations setting out precise procedure 

Pursuant to s. 38G of the Act, the Minister for Health has made regulations which set out in more granular details the procedure to be applied with respect to these appeals.  These regulations clarify a number of significant points.  First, the process for making a request for review is that the request is made to a state liaison officer who is a responsible person present at a designated facility.  A request may be made any time from 8am – 8pm and is made by way of an application form.  A person must be given this application form upon their arrival at the quarantine facility if they have not already been given it at the airport or port into which they arrived.  The completed application form should specify which of the grounds set out above are to be relied upon, and should include such information and documents as the applicant wishes to include.  Where a translator is required, the regulations require that arrangements are made for this. 

 

Second, regulation 5 provides for the role of chief appeals officer (“CAO”), who is appointed by the Minister for Health.  On a day to day level, the CAO receives the review request from the state liaison officer and allocates it to a DAO, who returns the completed decision to the CAO to be passed back to the state liaison officer.  At a higher level, the CAO reports to the Minister the number of requests received and the outcome of these requests.  In addition, the CAO may issue guidelines to DAOs in relation to the conduct of, or arrangements for, any requests for review. 

 

Third, the regulations give more detail on the form of procedure which is required where a request is under consideration.  Notably, regulation 8 states that a decision in relation to a request for review shall be made without an oral hearing, except in exceptional circumstances which are determined at the discretion of the DAO.  Any exceptional oral hearing which occurs is to be a remote hearing.  A DAO may, for purposes of clarification or verification, seek further information from any person, including the applicant.  In making their decision, the DAO is required to have regard to the application form, further information submitted, guidelines set down by the CAO, and any other relevant information.  Having done so, the DAO must provide a decision, one way or the other, in writing, including reasons for that decision.  Finally, the regulations clarify that second or subsequent requests for review are possible, and that there is no fee payable for the making of a request.  

 

Review procedure in practice 

While the procedure for appeals as set out in legislation and regulations has been set out above, the manner in which it is applied in practice is less clear.  Although the CAO reports to the Minister on the operation of the review process, these reports are not required to be published, and have not been.  However, media reporting and answers to parliamentary questions have provided a snapshot of what is occurring.  Notably, the Irish Times recently reportedthat, as of 26 April, there had been 685 reviews initiated against MHQ.  Of these, 614 (just under 90%) had been refused, with 71 granted.  Unfortunately, this provides little insight into the reasons for decisions and the procedure which is in reality being adopted (for example, how often oral hearings are held).  Notwithstanding the relative obscurity of the system, it seems that three issues with the operation of MHQ have been persistently raised by concerned parties, and these are examined below.  In some instances, cases which have received media attention, usually through the initiation of Article 40 proceedings, can shed some light on tensions emerging within the review process. 

 

Detention as pre-requisite for challenge  

An apparent anomaly in the review procedure is that it can only be initiated after a person is detained.  This became apparent in a recent case involving a man who wished to travel home from the United States to visit his dying father.  Prior to travelling, he sought an exemption from MHQ on humanitarian grounds, but was advised that in order to challenge his detention he would need to travel to Ireland and be taken into a designated facility.  He did so and was successful in his review, however some have argued that the requirement to be detained in order to claim an exemption is unsatisfactory.  Indeed, the unavailability of a pre-detention review has been criticised in the Dáil by two opposition TDs, Holly Cairns and Roisin Shortall, on the basis of the practical and financial difficulties it creates for certain travellers.  Such difficulties are well illustrated by a case recently reported in the Irish Times, where a woman in Dubai wished to travel home to Ireland for the funeral of her brother who had died unexpectedly.  As observed by the woman in a comment to the media, in order to challenge the imposition of quarantine, she would be required to book not only a flight but also a stay in MHQ (itself costing €1,875), in addition to actually beginning the detention.  The uncertainty that this would entail, alongside the financial barrier, deterred her from travelling.  

 

On one account, this is MHQ working as intended by deterring international travel.  On another, the manner in which the procedure is set up creates serious practical and financial barriers for people wishing to exercise their right to seek an exemption from MHQ.  Arguably, this state of affairs possesses a discriminatory edge insofar as, in practice, only those with the means to pay the cost of an MHQ stay upfront can avail of their right of appeal.  In the case where a person has an exceptional reason to travel to Ireland, giving rise to a good reason for an exemption from MHQ, but cannot in reality benefit from same, their rights are harmed in a manner that on the face of it seems disproportionate.  For this reason, the State may at some point be required to justify its omission to allow reviews to be taken prior to travel. 

 

Fair hearing 

As alluded to previously, it is difficult to know exactly how often an oral hearing is held in order to determine a request for review.  However, the strong presumption within the regulations that an oral hearing is not to be held, coupled with the short 24-hour turnaround time, would suggest that an oral hearing is rarely held.  The lack of an oral hearing for reviews has been denounced in a legal briefing written by the Irish Council for Civil Liberties (ICCL), which also criticises the absence of legal representation for persons requesting reviews.  It is a well-recognised principle of Irish and European law that a heightened obligation to ensure robust procedures exists where a possible consequence of a hearing is the detention of a party.  Thus, this criticism clearly raises the issue of whether the requirement to stay in an MHQ facility can be classified as a matter of law as ‘detention’.  It appears that it has generally been accepted in Article 40 proceedings taken thus far that being compelled to stay in hotel quarantine is a form of detention.  For example, in the case of an Israeli woman who initiated habeas corpus proceedings on the basis of her vaccination status, it was conceded by counsel on behalf of the State that the applicant was being detained.  This seems a logical conclusion to reach based on the essential nature of MHQ as a requirement to stay in a particular place, enforceable by Gardaí and by criminal penalty as seen in the case of two women arrested and charged for refusal to undergo MHQ.  

 

The robustness of procedures required where involuntary detention is concerned was considered by the Supreme Court in Croke v Smith (No. 2) [1998] 1 IR 101, where it was held that there was no general requirement for a review to be made of a patient’s detention under the Mental Treatment Act 1945.  It is notable, however, that this area of law has since been reformed by the Mental Health Act 2001 and now every involuntary detention requires a tribunal hearing.  However, some other factors may militate against a finding that an applicant for review is denied a fair hearing.  Most particularly, the maximum period of detention in MHQ being relatively short means that the interference with liberty is significantly smaller than most comparable situations.  Further, given the necessarily short turnaround time, it is likely that a paper-based review would be justified from a practical perspective.  Additionally, a person in MHQ at all times retains the ultimate right to review the legality of their detention via the Article 40 procedure and this aids in mitigating any infirmity in the statutory procedure.  

 

Failure to account for personal circumstances 

As explained above, the possibility of success in reviewing MHQ is entirely tied to the exemptions set out in s. 38B(16) of the Act.  It would appear that the said list of exemptions is exhaustive and that appeals officers are not vested with any discretion.  Some have questioned whether this method of decision-making is too rigid, and whether it prejudices applicants by restricting appeals officers from considering cases on an individuated basis which takes account of all personal circumstances.  This argument was raised in Article 40 proceedings where a South African woman contended that an appeals officer could not consider her personal circumstances and in particular her status as partly vaccinated.  However, the High Court judge found that the woman had been detained lawfully.  Since that time, the law has been tweaked so as to add vaccinated persons to the category of exempted travellers.  To a significant degree, the validity of the concern that appeals officers cannot consider individual circumstances depends on how restrictively exemptions are interpreted in practice.  For example, in principle ‘humanitarian grounds’ is capable of encompassing a broad range of circumstances.  In one case, a seemingly very restrictive approach was taken to the interpretation of humanitarian grounds, in circumstances where a man was returning from Israel to visit his dying father and was twice rejected release on the basis of humanitarian grounds.  However, in a more recent review, a man returning from the United States in very similar circumstances was succeeded in demonstrating humanitarian grounds. 

 

It seems that this criticism of the MHQ review procedure tends to collapse into substantive criticism of the narrowness of the exceptions for which the legislation provides.  While potentially valid, returning to the beginning of this post, it was suggested that such criticism is unlikely to undermine the legality of the MHQ review procedure.  In a similar vein, the European Commission has denounced the Irish MHQ regime on the basis that it fails to set out ‘clear and operational exemptions for essential travel’.  This comment can best be understood by reference to the principle of proportionality, which of course occupies a central role in European law.   Whether the exemptions set out in Irish law are disproportionate and in breach of European law is a worthy question which has been considered elsewhere, but does not as such go directly to the question of whether the Irish review process is procedurally defective.  

 

Conclusion

With a new set of regulations, the Minister for Health has provided a procedure for the review of MHQ by reference to a set of explicit legislative exemptions.  This post has summarised the procedure to be applied and suggested that three features of this procedure have in particular generated controversy and, to varying extents, come into tension with the rights of persons detained in MHQ.  First, the lack of facility for a pre-detention challenge means that in practice significant practical and financial barriers stand in the way of a person seeking to claim an exemption from MHQ.  Second, the rarity of oral hearings and absence of legal representation in circumstances where a person is detained in principle raises fair hearing concerns, although such concerns will be counterbalanced by the relatively short period of detention and the exigencies of public health.  Third, there is some concern in relation to the rigidity of the exemptions to be applied and the extent to which appeals officers can consider cases on an individual basis.   Given that procedural infirmities are more likely to undermine the legal validity of the review process, these matters will be of concern to detained persons and the State going forward.

 

Cian Henry is a graduate of Trinity College Dublin and Harvard University, and a student at the Honourable Society of King’s Inns.

Suggested citation: Cian Henry, 'Appealing mandatory hotel quarantine: a procedural perspective' COVID-19 Law and Human Rights Observatory Blog (13 May 2021) https://tcdlaw.blogspot.com/2021/05/appealing-mandatory-hotel-quarantine.html