Education
High Court quashes Home Office policy of delaying release of vulnerable detainees to get a second medical opinion
Where second opinions were sought by the Home Office, this was delaying consideration of the evidence in those cases and prolonging the period of detention by several weeks or more.
What is the Second Opinion Policy and what were the grounds of challenge?
The Second Opinion Policy was first introduced in June 2022 and applies whenever the Home Office receives a medico-legal report submitted by or on behalf of a person in immigration detention which addresses their vulnerability to harm in immigration detention.
The policy directs Home Office decision-makers to delay consideration of the report in deciding whether the vulnerable person should remain in immigration detention whilst it seeks a second medical opinion from a Home Office contracted doctor. The process of obtaining a second opinion, even if there are no unforeseen delays, can take “up to 18 working days and significantly more calendar days” (judgment, para 55(ii)).
Allowing time for consideration of the report and for a decision on it by the Home Office and for this to be communicated was resulting in vulnerable people being detained for a month or longer in circumstances where prompt consideration of the external medical report would otherwise have lead to release.
The core problem with the policy, as identified by Linden J, is that it directly contradicts the approach set out in guidance approved by Parliament pursuant to section 59 of the Immigration Act 2016, the Adults at Risk Statutory Guidance.
This guidance requires Home Office officials to decide vulnerability (both whether the person is in principle vulnerable and if so which of 3 evidence levels they fall into) based on the available evidence. The evidence levels crucially determine the strength of the presumption against continued detention. The higher the evidence level, the weightier the immigration factors required before the Home Office can discharge its burden to justify continued detention.
Medical Justice also argued that the guidance on how differences of opinion between the two medical opinions should be dealt with is likely to lead to the downgrading of the evidence level of risk than would be the case if the external medical report were assessed on its own terms, and therefore may result in a person remaining in detention when they would otherwise have been released in view of the assessment of their vulnerability in the external medical report.
Medical Justice’s other principal complaint was that the Second Opinion Policy was introduced without any form of consultation and that this was contrary to established practice of consulting with Medical Justice and other expert interested groups on policies and operational guidance concerning the detention and treatment of adults at risk.
What did the Court decide?
Permission was initially refused on the papers. It was granted at an oral hearing on 25 July 2023, at which the judge (Heather Williams J) expressly ruled that Medical Justice had standing and granted a Costs Capping Order.
It is also worth noting that although Medical Justice had been out of time to challenge the first iteration of the Second Opinion policy published in June 2022, it was accepted (by the Home Office and the Court) that time should run from the publication of the second iteration of the policy in September 2022.
The Second Opinion Policy was unlawful because it contradicted the Adults at Risk Statutory Guidance
Linden J decided that the Second Opinion Policy contradicted the Adults at Risk Statutory Guidance, essentially because it purports to authorise Home Office officials to depart from the approach in the Statutory Guidance of assessing vulnerability based on available evidence. This meant that, following recent UK Supreme Court jurisprudence (R(A) v SSHD [2021] UKSC 37) the policy was unlawful:
[78] “…Perhaps the simplest way of expressing the point is that the Statutory Guidance was required by section 59 of the Immigration Act 2016 to be approved by Parliament, albeit by the negative resolution procedure, and was approved by Parliament. It therefore was not open to the Defendant to contradict or undermine it without the approval of Parliament.”
[79] “…in my view this is a case in which the Defendant has undermined the rule of law in a direct and unjustified way by issuing a policy which positively authorises or approves unlawful conduct by caseworkers in that the terms of the Second Opinion Policy require or encourage them to act contrary to the Statutory Guidance approved by Parliament…”
Unlawful failure to consult
As to consultation, Linden J accepted that Medical Justice’s evidence, supported by Freedom from Torture, demonstrated an established practice of consultation on Adults at Risk detention policies that was “so consistent as to imply clearly, unambiguously and without relevant qualification that it will be followed in the future” (para 158). This evidence was “effectively uncontradicted by evidence” from the Home Office (para 159).
This meant Medical Justice had a legitimate expectation that it would be consulted in relation to the Second Opinion Policy. It was common ground that there had been no consultation, leading the judge to decide that the failure to consult Medical Justice had been unlawful:
[161] “…the key point for present purposes was that policy matters relating to adults at risk in detention were within the expertise of the Claimant and, on the evidence, the Claimant was consistently consulted in relation to material issues arising in this area, regardless of who else was.”
[162] “…To my mind the key point is that the evidence establishes a clear pattern of seeking the views of the Claimant in relation to policy proposals and changes in the area of adults at risk, the Claimant providing those views, the views being taken into account by the Defendant and a decision being taken…”
[165] “I therefore uphold Ground 3 on the basis that the Claimant had a legitimate expectation of consultation about the Second Opinion Policy, no real attempt to explain or justify the failure to consult having been put forward by the Defendant in the context of the Claim…”
Relief
The Court ordered that the Second Opinion Policy be quashed and made a declaration that the failure to consult Medical Justice had been unlawful.
Permission to appeal
At time of writing, a decision on the Home Office’s application for permission to appeal is awaited.
What does the Court’s decision mean for people in immigration detention?
The Court’s decision means that the Home Office cannot apply the Second Opinion Policy to people currently in immigration detention. The policy was removed from the Home Office’s website on 12 January 2024, with the notes explaining “this guidance is no longer followed”. This will mean that vulnerable people who would otherwise have been detained because of the application of the Second Opinion policy will be released where the available medical evidence and the application of the Adults at Risk Statutory Guidance requires this.
People who have had the Second Opinion Policy applied to them since it was introduced in June 2022 may have claims for unlawful detention based on the application of the unlawful policy, and any failure to decide vulnerability and whether they should remain in detention based on a medico-legal report submitted by them or on their behalf.
Is it possible for the Home Office to reintroduce the Second Opinion Policy in future?
The Court decided that the Home Office had not followed a lawful process in introducing the policy. It did not decide that the underlying principle of the policy is unlawful. See paragraph 84:
“subject to the Policy being laid before Parliament etc, it would not have frustrated the purpose of section 59 to make provision for the obtaining of a second opinion on any external report submitted on behalf of a detainee”.
This suggests that it would be open to the Home Office to re-introduce the policy. However, unless legislation was used, based on this judgment the Home Office would first have to undertake a fair consultation and seek Parliament’s approval of the policy under section 59 of the Immigration Act 2016.
