Medical Justice establishes the right to be consulted by the Home Office on its ‘Adults at Risk’ policies.

The Court of Appeal has upheld a successful judicial review brought by Medical Justice that – based on its consistent practice of consultation – the Home Office has a duty to consult Medical Justice before introducing policy relating to the immigration detention of ‘adults at risk’.

A Medical Justice spokesperson said : “This is a vital curb on the Home Office bringing in ever more injurious detention policies that cause severe harm to those it detains indefinitely.

Over the years there have been some important modifications to Home Office policy following consultation with Medical Justice, resulting in lessening the harmfulness of some policies – that door must not be closed off.  We are delighted that the duty to consult Medical Justice has been established – it is a momentous win in the fight for the rights of people held in immigration detention ; the door to policy improvements is now wedged open.

This constraint on the Home Office has never been more needed ; the Brook House Inquiry revealed an alarming and continuing level of inhuman and degrading conditions in immigration detention and the Home Office has since weakened rather than strengthened safeguards designed to protect vulnerable people in detention. Furthermore,  despite knowing the severe harmfulness, the government has announced a significant expansion of detention, meaning the harm cannot be described as accidental.”

Medical Justice is extremely grateful for skilled representation by Wilson Solicitors partner Jed Pennington, Angus McCullough KC (1 Crown Office Row), and Shu Shin Luh and Laura Profumo (Doughty Street Chambers).

For more details about the case, please see the below, based on a note kindly written by Medical Justice’s legal team.

In a decision handed down on 14^th March 2025, the Court of Appeal has upheld a judicial review brought by Medical Justice that the Home Office is required to consult it before introducing any policy affecting the immigration detention of ‘adults at risk’. The Home Office acted unlawfully in failing to do so in respect of a policy which allowed for second medical opinions to be sought from Home Office contracted doctors when presented with medico-legal reports commissioned by or on behalf of people in immigration detention (‘the Second Opinion policy’). The Court of Appeal’s judgment (available here) confirms the importance of the consultation duty as a cornerstone of democratic governance, particularly in the context of the exercise of immigration detention powers.

Background and what the Court of Appeal decided

For more background about the case, you can read the Wilsons Solicitors’ post on the High Court judgment here.

In summary, the High Court’s 12 January 2024 judgment found that the Home Office had a duty to consult Medical Justice, a key stakeholder, on policies affecting the detention under immigration powers of vulnerable people, and that the Home Secretary acted in breach of that important duty by failing to do so during the formulation of and prior to implementation of the Second Opinion policy. The High Court also quashed the Second Opinion policy on the basis it contradicted the Adults at Risk Statutory Guidance that was issued under section 59 of the Immigration Act 2016. The High Court decided that the Statutory Guidance only allows for a very short (“de minimis”) period for the Home Office to seek further evidence when it received a medico-legal report by or on behalf of a detained person who claims to be an adult at risk, and does not allow the Home Office to prolong detention just to seek a second medical opinion.

Following the High Court’s decision, the Home Secretary conducted a consultation involving Medical Justice. Following this, the Adults at Risk Statutory Guidance was amended to more explicitly allow for its Second Opinion policy and revised non-statutory guidance was published, which came into effect on 21 May 2024.

Notwithstanding the fact that the policies under scrutiny by the High Court had been superseded by revised versions, the Home Secretary appealed the High Court’s judgment.

On the duty to consult, the Home Secretary asserted that: “When, and whether, ad hoc engagement with interested individuals and organisations gives rise to current and prospective legal obligations to consult is of pressing concern across central and local government”.

The Court of Appeal dismissed the Home Secretary’s appeal on this ground outright, finding that there was no error in the carefully considered analysis of the High Court which led to a finding that the Home Secretary has a duty to consult Medical Justice on detention policies affecting adults at risk, and its failure to do so in respect of the Second Opinion policy was unlawful.

Success on the consultation point is important for Medical Justice and other organisations that engage with the Home Office as. the duty of consultation underpins a democratic process where the risk of injustice being done to the affected groups is minimised by hearing from representative bodies able to voice concerns and proposals on their behalf. Past consultations with Medical Justice on adults at risk immigration detention policies had resulted in a material difference to the form and substance of the policy subsequently implemented.

In respect of the construction of the Statutory Guidance, the Court of Appeal allowed the Home Secretary’s appeal on a narrow basis, finding that the Guidance allowed for a “short” time period for the Home Office to seek further evidence. It did not, however, provide guidance on how long this might be and did not decide whether the timescales provided for in the Second Opinion policy were lawful. What is “short” and “reasonable” will depend on the circumstances of the individual case.

The Court of Appeal acknowledged that the Statutory Guidance and Second Opinion Policy considered by the High Court had been superseded by revised version of the policies, but accepted the Home Secretary’s submissions that it is possible that there will be claims for damages for unlawful detention in relation to people who had the Second Opinion policy applied to them before the amended policies came into effect on 21 May 2024. There was no evidence that there were any such claims but given the 6-year time limit for bringing false imprisonment claims, this remains a theoretical possibility.

Finally, the Court of Appeal made an order upholding the declaration made by the High Court that there had been an unlawful failure to consult Medical Justice and refusing the Home Secretary’s application for permission to appeal to the Supreme Court.

What the Court of Appeal did not decide

First, Medical Justice’s original grounds had argued Statutory Guidance issued under section 59 of the 2016 Act must further the statutory purpose of this provision by facilitating the prompt identification of adults at risk, their release, and the reduction generally in the detention of people vulnerable to harm in immigration detention. However, the High Court decided that the narrow purpose of section 59 was to ensure Parliamentary oversight of the Statutory Guidance. If guidance (statutory or non-statutory) is issued which cuts across the intention of Parliament in passing section 59, it may be open to challenge on the basis of Medical Justice’s argument.

Second, the principle underlying the High Court’s decision that non-statutory guidance will be unlawful if it contradicts statutory guidance still holds good. This was not challenged by the Home Secretary. The Court of Appeal’s judgment was decided on the narrow basis that the Statutory Guidance did permit a “short” time for obtaining further evidence, but went no further to find whether the timescales in the Second Opinion Policy reflected this or contradicted this principle.

Third, the Court of Appeal’s judgment does not close off claims for damages for people subject to the Second Opinion policy. In relation to people detained under the policy that was in place before 21 May 2024, and the one that came into effect on this date, it will be open to argue that the timescales for seeking second opinion evidence were unreasonable and therefore unlawful in their individual case. Relevant factors affecting the legality of detention may include the assessment of the likelihood of harm and the seriousness of harm of remaining in detention, as well as the risks of absconding and offending if the person is released.

Further information

The ‘adults at risk’ policy was introduced by the Home Office in response to Stephen Shaw’s report, which the Home Office commissioned due to concerns that too many vulnerable people were being held in immigration detention, for too long. This had led to a number of court cases where people in immigration detention were subjected to conditions that were inhuman and degrading. The Brook House inquiry also made findings that people at Brook House immigration removal centre were held in conditions that were inhuman and degrading.

In addition to its concern at the policy being introduced without any form of consultation, Medical Justice brought this challenge due to concerns around the Second Opinion policy causing immense suffering and harm to people who are particularly vulnerable people in immigration detention. Through its casework, Medical Justice has already seen vulnerable people deteriorate during the period of delay caused by the application of the Second Opinion policy. The important context for the rise in external medico-legal reports that led the Home Office to introduce the Second Opinion policy is the long-standing systemic failures in the safeguards in the immigration detention system, the Rule 35 process and associated policies.

Notes

A bundle of key documents from the case is available here, including the judicial review grounds, the key witness statements for the consultation point, and the decisions on its Costs Capping Order.

On 2 December 2024, parliamentarians held a meeting to re-establish the All-Party Parliamentary Group (APPG) on Immigration Detention.  

Following a vote by the membership, Bell Ribeiro-Addy MP (Labour) was elected as the APPG’s new Chair, and Rt Hon. the Lord Garnier KC (Conservative), Baroness Hamwee (Liberal Democrat) and Mohammad Yasin MP as its officers. Medical Justice was re-elected as the APPG’s secretariat. 

APPG meeting attendees (L-R): Lord German (Liberal Democrat), Baroness Bennett of Manor Castle (Green Party), Baroness Lister of Burtersett (Labour), newly elected APPG Chair Bell Ribeiro-Addy MP (Labour) and Rt Hon. John McDonnell MP (Labour). 

First launched in 2019, the APPG – which temporarily ceased to exist in May due to the general election – brings together more than 25 parliamentarians from across the political spectrum who share concerns about the use of immigration detention in the UK. It works to raise awareness within Parliament about immigration detention and its impacts, and to offer a forum for MPs and Peers to debate with subject experts, including those with lived experience of detention. Using information gathered through its activities, the APPG advocates for evidence-based reforms to immigration detention policy and for the welfare of detained people. 

With a recent increase in the number of people being detained, a significant expansion of detention planned, and deeply concerning conditions reported at Brook House IRC and Harmondsworth IRC amongst others, it is vital that the use of immigration detention by the new government continues to be carefully scrutinised in Parliament. The  APPG will make an important contribution to this. 

Membership of the APPG is open to MPs and peers of any party. If you cannot see your MP on the APPG’s current members list, please considering writing to them and asking them to join. They can do so by emailing contact@appgdetention.org.uk.  

Enter your postcode here to find your local MP and their contact details. 

You can stay up-to-date with the APPG’s ongoing work by following it on X/Twitter. 

Medical Justice publishes new resource on Home Office Immigration Detention statistics collated through Freedom of Information Requests.

Medical Justice would like to share with you a new resource that we hope you and your networks will find useful in advocacy work regarding immigration detention. Medical Justice will now bi-annually publish Home Office detention statistics we have collated through regular Freedom of Information (FOI) Requests.

The statistics cover the following thematic areas:

• Rule 35 reports 

• Self-harm incidents and Assessment Care and Detention Teamwork (ACDT) 

• Segregation 

• Use of Force  

The statistics are now available here

For Medical Justice’s analysis on these and other thematic areas, please see our research reports here.

In particular, our report “If he dies, he dies”: What has changed since the Brook House Inquiry provides more detail and analysis on Rule 35, ACDT and self-harm, Segregation and Use of Force.

We will be regularly publishing information we receive through FOI requests for use by others including – but not limited to – the asylum, refugee and migrant sector, monitoring bodies, the legal sector, in strategic litigation, medical bodies and the media. We also hope it will help strengthen the sector’s advocacy work and also encourage others to also publish information they have received through FOI requests.

Please also forward on this resource to others you think may find it useful.

If you do use this resource, please credit Medical Justice as the source. We also would appreciate it if you could let us know when you use this resource, so we are able to keep track of how widely and well-used it is. Please email our researcher, Ariel, to let her know if you use this resource and also if you have any questions a.plotkin@medicaljustice.org.uk.

WE ARE NO LONGER ACCEPTING APPLICATIONS

See our Vacancies page for all current job opportunities

Please sign up to our mailing list to stay up to date with any future job opportunities

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A rare opportunity for an ambitious and driven Fundraising Lead to join a well respected and impactful human rights organisation to drive growth and challenge abuse in immigration detention.

3 days a week, £40,000 p/a pro-rata, hybrid and flexible working possibilities.  Office in Finsbury Park, London.

Medical Justice particularly welcomes applications from people with lived experience

Download the Application Pack.

We are looking for an outstanding Fundraising Lead to play a key role in developing and implementing our first formal fundraising strategy. You will be helping to develop our team of passionate and determined staff and volunteers committed to defending the medical and legal rights of our vulnerable detained clients. Your fundraising will enable Medical Justice to grow to the next level and together we will be changing the fate of even more people’s lives.

“The team at Medical Justice are very supportive, knowledgeable, and passionate about the work that they do, it has been a great environment to work in.”

– Medical Justice staff member.

 

“Staggeringly impressive group which merits the overused phrase punching well above their weight.” and “We are hugely enthusiastic as a trust about their work.”

– Medical Justice funder.

Job Purpose: Develop and implement a funding plan that will resource Medical Justice’s ambitious strategy, building partnerships with funders, increasing and diversifying funding streams.

Salary: £40,000 per annum pro rata, with an annual increase of £500 each year for 5 years and 5% pension contribution

Reports to: The Director

Working hours: 3 days a week – flexible working pattern possible

Based: The job is based at the Medical Justice office in Finsbury Park. You can work at home but should come in the office for 5 days a month, preferably including Tuesdays.

Length of contract: Permanent. The probation period is 6 months.

Annual Leave: 28 days per annum pro rata (including 4 days associated with bank holidays which may be decided on by your manager, usually associated with the office closure during Christmas and New Year) plus bank holidays.

Benefits: Includes ; enhanced parental leave and sick pay, one-to-one counselling sessions and group supervision sessions with a psychologist, ‘cycle to work scheme’, staff lunch on Tuesdays.

Timeline: The closing date for applications is midnight 26th January 2025. Shortlisting for interviews is planned for 31st January 2025 with interviews the following week at the Medical Justice office. Interviewing will include a written and verbal exercise. Medical Justice pays for travel expenses to and from the interview.

To apply: Please read the Application Pack which includes the Job Description and the application form. Email your competed application form and your CV to Anthony at a.omar@medicaljustice.org.uk

We look forward to receiving your application !

Information Sessions

We are offering informal information sessions about Medical Justice and its work as well as an opportunity to ask questions about the Fundraising Lead role and the organisation before the application deadline.

These sessions will take place on:

Tuesday 7^th January – 12pm

Wednesday 15^th January – 1pm

If you are interested in participating, please email our Office Manager, Anthony Omar on a.omar@medicaljustice.org.uk for more information.

The Home Office locked Frank up in an environment known to cause severe harm co, then its notoriously dysfunctional and failing safeguarding ran their fatal course.

On 11th October 2024 an inquest jury found that Frank, a 39 year old Colombian man, killed himself in a locked cell at Colnbrook Immigration Removal Centre (IRC) on 26th March 2023 after three incidents of self-harm or attempted suicide. The jury found that multiple failings contributed to Frank’s death. 

The Home Office cannot keep saying that it takes every detained person’s safety seriously – it is patently not true  

Medical Justice clinicians and caseworkers assist over 600 people in detention each year and encounter alarmingly high suicide risk levels and deterioration in health on a daily basis – we provide evidence of these ongoing systemic and lethal failures to the Home Office, yet IRCs remain as dangerous as ever. HM Inspector of Prisons reported in July 2024 on the worst conditions it has seen in detention, including a ligature point not removed despite being used in three suicide attempts. 

Immigration detention is known to cause severe harm – the evidence is undisputed. Yet, chillingly, the Home Office has purposefully weakened its already failing clinical safeguards at the same time as planning to expand detention. Clearly, increasing detention whilst weakening safeguards means severely harming more people. This harm is not accidental.  

“That would have been the last opportunity I had to embrace my son but I couldn’t” – Frank’s Mother 

Frank had disclosed no health issues when he was detained on 4th March 2023 for working without permission while spending time near his mother in the UK before taking up a place on a master’s course in Spain. 

He became suicidal in detention and jumped from the second floor internal balcony, landing on safety netting. He was found banging his head against a wall after self-harming with a television cable which he insisted to staff he had been using to whip rather than strangle himself.   

Frank’s mother, who left the coroner’s court in tears, described in a statement her struggle to book a visit with her son at Colnbrook and was eventually allowed a “closed visit” behind a glass screen which the inquest found “contributed to the deterioration of his mental health and incurred further stress”. She said “I was horrified, as I did not recognise my son. He was staring at me as if I was not there. … I felt helpless … That would have been the last opportunity I had to embrace my son but I couldn’t.”  Frank’s brother-in-law, Julian Llano, told the BBC: “He kept insisting that he felt very bad, mentally, that he needed to get out of there. He didn’t ask for help – he begged for help, not only to us, but also to the people there.” 

Unacceptably inadequate suicide watch observations failed to recognise Frank was not in his bed and was in fact dead 

On 19th March a triage nurse assessed Frank and advised him to eat healthily, do some exercise and keep busy. 

On the day he died, Frank was on a suicide prevention plan that required him to be checked on by a Detention Custody Officer (DCO) twice each hour after being deemed a “ticking time bomb”. CCTV shows that on 26th March, a DCO checked on Frank at 7.22am, 7.42am and 7.52am and said that he saw Frank in bed on each occasion. At around 8.00am, another DCO took over and falsely recorded that he had checked on Frank at 8.30am – CCTV shows that he did not. 

Shortly after 9.00am, the DCO went to Frank’s cell. He opened the door and looked in. Frank was not in his bed. The DCO closed the door and called for other staff. After 13 minutes, staff attended and went into the room, finding Frank lying on the floor of the toilet area. Staff started CPR even though there were signs that Frank had been dead for some time as he appeared stiff and cold. No one called a medical emergency code. When healthcare staff arrived, they also continued with CPR until paramedics arrived and confirmed that Frank was dead. 

Rigor mortis and staining on Frank’s body suggests he had been dead for at least 2 hours. The Prison & Probation Ombudsman noted that this casts doubt on the DCO’s account that he saw Frank in bed at 7.22am, 7.42am and 7.52am.  

The inquest jury found Frank died by suicide, having been left in possession of an item which could be used for suicide, despite three instances of self-harm or suicide attempts in the previous days. 

Two days later, an “attempted mass suicide” took place at Harmondsworth IRC, adjacent to Colnbrook IRC. 

“if we had done the Rule 35  … then we wouldn’t have had that outcome.” – Colnbrook IRC healthcare 

An IRC doctor who treated Frank in an emergency appointment after his first suicide attempt failed to undertake a ‘Rule 35’ report alerting the Home Office of Frank’s suicidality and triggering a review of his continued detention. Frank later again told staff that he was having thoughts of suicide but again, no Rule 35 report was submitted. Asked at the inquest why not, the Practice Plus Group (PPG) head of healthcare at Colnbrook said: “It was not done. Healthcare missed that … We keep a waiting list for Rule 35 … At some point we had a waiting list of over 100 people… I can confidently say that if we had done the Rule 35 on the 22nd or 23rd [of March], then we wouldn’t have had that outcome.” He also added that the number of people waiting for a Rule 35 “has only increased.” 

In a statement  to Liberty Investigates PPG stated that there is no legal time limit for completing a Rule 35 and that urgent mental health issues are best dealt with via good clinical care instead. It confirmed that Frank was not even on the waiting list for a Rule 35 assessment. 

Four ’Part C’ forms about Frank’s situation were submitted in the four days leading up to his death, but each time Home Office staff failed to forward them to his case worker and no assessment was made. 

Medical Justice is not surprised by the failures and neither should the Home Office be as it has the data 

Based on our evidence from assisting over 600 clients in detention each year, we have been warning the Home Office for the last 20 years that Rule 35 is not working, about dangerously long waiting lists for assessments, the specific lack of Rule 35(2) reports on suicide risk, and the inadequacies of suicide watch processes.   

The Medical Justice “If he dies, he dies” research report found an alarming 74% of the 66 clients cases examined for the report had self-harmed, had suicidal thoughts and/or attempted suicide in detention yet very few Rule 35(2) reports documenting their suicidality were completed. Even after people attempted suicide, Rule 35(2) reports are rarely completed, and if they are, the assessment is often inadequate and incomplete, for example missing information such as a suicide attempt. Of the 46 detained people in this case-set who had suicidal thoughts, this was documented in their medical records for only 23. There should be a Rule 35(2) report for everyone on suicide watch. The Independent Monitoring Board’s report for Yarl’s Wood IRC published 17th October 2024 noted that just 1 of 181 detained people on suicide-watch had a Rule 35(2) report. 

It’s not a matter of ‘if’, but ‘when’ the next person dies in detention – Medical Justice challenging the inexcusable inertia   

A Home Office spokesperson said: “We offer our sincere condolences to Mr Ospina’s loved ones, and since his death in 2023 a number of actions have been taken to improve the safeguards for individuals in detention”. Yet disturbingly the Home Office has weakened its key Adults at Risk policy which sets out how Rule 35 reports are considered, removing the aim of reducing the number of vulnerable people in detention. Furthermore, it plans to re-open and expand two IRCs, adding capacity to detain an additional 1,000 people at any given time. 

Following the Brook House [public] Inquiry (BHI) finding that the wholesale dysfunction of safeguards led to alarming levels of inhuman and degrading treatment in detention in 2017, the Home Office has mentioned a review of its Rule 35 policy but not provided any details about what this review will entail. Meanwhile, NHS England has produced Rule 35 Guidance – which Medical Justice has raised concerns about – as an interim measure before commissioning training from a Royal College on Rule 35, which has been paused while the Home Office review is awaited.   

On 14th October 2024, supported by Medical Justice, the House of Lords debated Adults at Risk policy changes, which are contrary to BHI recommendations. We learned that the review is to be completed by “spring 2025”.  Meanwhile, at least 312 people were on suicide watch in IRCs between April and June 2024. 

Regarding ongoing Rule 35 failures and the increasing numbers of deaths in detention, Medical Justice will ; 

• Continue with urgency our policy advocacy aimed at the Home Office and NHS England  

• Continue to document the severe harm caused by dysfunctional clinical safeguarding failures 

• Support the securing of an adjournment debate about conditions at Harmondsworth and Colnbrook IRCs 

• Support and hopefully join parliamentarians in meeting with Ministers about the deaths and safeguarding failures 

• Send our independent clinicians to visit suicidal clients in detention and produce medico-legal reports 

• Continue our specialised casework, providing emotional support for suicidal clients and advocating for them 

When life is difficult, Samaritans are here – day or night, 365 days a year. You can call them for free on 116 123, email them at jo@samaritans.org, or visit samaritans.org to find your nearest branch.