Medical Justice initiated a Judicial Review challenging the Home Office’s continuing failure to make provisions to enable people in immigration detention who lack mental capacity to participate in their immigration case or to challenge their detention or conditions of detention.
Though we were refused permission for the Judicial Review in September 2025, responding to our litigation the Home Office revealed a new policy which is likely to benefit detained people who lack mental capacity and be helpful to those supporting them.
The new policy provides that where there is medical evidence that a detained person lacks mental capacity (which Medical Justice might be able to provide) and they are not legally represented, the Home Office will not serve an immigration decision which carries a right of appeal or avenue to respond with submissions on them. This ends the situation whereby a detained person who lacks capacity does not understand or is unable to engage in an important and often negative decision against them – for example, the refusal of an asylum claim which, if unchallenged, could lead to deportation.
The Home Office also said it is “in the course of designing” a “new scheme” intended to provide meaningful assistance for detained people who lack mental capacity. Medical Justice will be following up to ensure this actually happens.
Background
In 2014 ‘VC’ was detained in an immigration removal centre (IRC). He had bipolar disorder and psychosis and had previously been admitted to psychiatric units multiple times. He remained in detention for close to 11 months during which time his mental health deteriorated. His healthcare records describe him as being confused, having delusions, persecutory thoughts, hypomania, elation, seeing visual hallucinations of angels, and presenting with ‘strange and challenging’ behaviour. He was described as having ‘lost contact with reality’ and not having insight into his illness. He was held in segregation in the IRC several times. Eventually he was sectioned and transferred to hospital.
VC was unable to arrange legal representation for himself and unable to challenge his own detention, the conditions in which he was held, or his repeated segregation. He was eventually encountered by an NGO that supports detained people who referred him to a solicitor. The Official Solicitor was appointed as ‘litigation friend’ because VC lacked capacity to represent himself.
In 2018 the Court of Appeal found that the Home Office’s failure to put in place assistance (such as independent advocacy) to enable VC to challenge his detention and conditions of detention was unlawful and discriminatory and a breach of the duty to make reasonable adjustments under the Equality Act 2010.
Seventeen months later, in July 2019, in the case of ASK and MDA the Court of Appeal made similar findings of discrimination in two further cases of mentally unwell detained men (ASK was another client of Medical Justice).
Following this a Detention Services Order (DSO) on ‘Mental Vulnerability’ has been developed, providing guidance to identify people who may lack mental capacity or who have a disability arising from their mental illness. The DSO instructs all staff to refer such concerns to healthcare and for the Home Office to be notified. Also, staff should assist individuals to understand information provided to them and legal documents served on them ‘through personal engagement’ and should signpost them to legal advice.
However, crucially, there is no provision for independent advocacy or some equivalent effective provision, as had been suggested in VC and ASK and MDA. If somebody is not able to understand or engage with a legal document served on them despite ‘personal engagement’ by an IRC officer and is not able to attend a legal advice surgery and successfully secure legal representation, then they remain at high risk of remaining detained for long periods, despite the known deleterious effect of detention on mental health. They may not be able to pursue any potential asylum or human rights claims and could be removed from the UK without their circumstances being examined.
Home Office discloses policy following our litigation
Medical Justice applied for permission to challenge by way of Judicial Review the continuing failure by the Home Office to make provision for independent advocacy or other assistance for those in immigration detention who lack mental capacity. Although we were refused permission in September 2025 following an oral hearing (the judgment is here), in evidence in response to our litigation the Home Office stated that a “new scheme” is in “development and under active and ongoing consideration” and it is “considering the viability of a system of independent advocacy or equivalent arrangements”.
The Home Office also disclosed new ‘interim guidance‘ for its caseworkers which the Home Office stated was circulated to its teams in December 2024. The guidance states:
“Where the concern regarding mental capacity is considered well-founded and continues, but a decision is taken that detention is to be maintained, it is extremely important that the responsible case-working team can confirm that the person has legal representation. This will provide a legal avenue for immigration decisions to be appropriately challenged, notwithstanding the concerns that we may hold regarding the person’s mental capacity.
Where a person for whom we have a well-founded concern regarding mental capacity is not legally represented, and that concern is supported by medical evidence directly related to the capacity issue (HC MHT treatment etc), the service and enforcement of immigration decisions which carry a right of appeal or avenue to respond with submissions, should not normally be progressed, until legal representation is obtained. Whilst this general rule should normally be applied, each case must be considered according to its circumstances.” (emphasis added).
We have since seen instances where people who had strong indications that they lacked mental capacity to make decisions relating to their immigration case and were not able to challenge immigration decisions themselves, and who were not legally represented, were nevertheless served decisions, including refusals with a right of appeal and refusals that could have been responded to with submissions or challenged by judicial review. Some got close to being removed from the UK. Medical Justice is spreading the word about the “new interim guidance” to help ensure all detained people who lack mental capacity are protected in this situation.
This guidance may be an important tool to ensure deadlines are extended and people are not removed in the meantime.
Medical Justice is the only charity that sends independent clinicians into IRCs to document detained people’s mental and physical health, including mental capacity. Where appropriate, Medical Justice’s medico-legal assessments for detained people include assessments of their capacity to make decisions relating to their immigration cases or instruct legal representatives. If you have concerns about the capacity of a detained person, you can refer them to Medical Justice or contact our casework team to discuss.
The Home Office’s next steps
The judgment in the Medical Justice case records evidence provided by Frances Hardy, Deputy Director of Detention Services for the Home Office that:
“The Home Office is currently researching options to recruit ‘mental capacity officers’ from the current body of operational staff, who will receive specialised training, have oversight of cases of concern and the responsibility to liaise with the healthcare provider, making a referral for independent mental capacity advocates (IMCA) support where appropriate. This is the current intention of the Home Office, subject to the outcome of further policy development work in the coming months.”
It was further said that the viability of providing independent advocacy services was being considered.
So far no updated version of the Mental Vulnerability DSO has been published and there has been no further indication given to stakeholders (including Medical Justice) that the design of a system for the provision of appropriate support (including advocacy services) has progressed further or when such provision may start. Medical Justice is continuing our efforts to press the Home Office for this and highlight the ongoing need. In the meantime detention is being expanded.
