Medical Justice press release 12 January 2024 for immediate release
In a judgment handed down on 12 January 2024 the High Court allowed a judicial review brought by the charity Medical Justice to a policy which allowed the Home Office to seek a second medical opinion in respect of vulnerable people in immigration detention when they have submitted an ‘external’ medical report – produced by Medical Justice or another independent medical professional – as to their vulnerability to harm in immigration detention. This delays consideration of the available evidence concerning the likely harm to the vulnerable person of continued detention for several weeks or more.
Witness evidence was provided by Medical Justice staff Idel Hanley, Policy, Research and Parliamentary Manager, and Dr Elizabeth Clark, Clinical Advisor; Tara Wolfe, Head of the Medico-Legal Report Service at Freedom from Torture; and Dr Juliet Cohen, an independent forensic clinician and former Head of Doctors at Freedom from Torture from 2005-2021.
What is the Second Opinion Policy and what was Medical Justice’s complaint about it?
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 will likely mean vulnerable people in this process being detained for a month or longer in circumstances where prompt consideration of the external medical report – without the delay in obtaining a second medical opinion – would 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?
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  UKSC 37,  1 WLR 3931) the policy was unlawful:
 “…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.”
 “…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:
 “…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.”
 “…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…”
 “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…”
The Court ordered that the Second Opinion Policy be quashed and made a declaration that the failure to consult Medical Justice had been unlawful.
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 and will need to be withdrawn. This will mean that vulnerable people – potentially hundreds annually – 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 should seek advice on whether they 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?
Potentially, but it would first be required to carry out a fair consultation and it would need to seek Parliament’s approval of the policy under section 59 of the Immigration Act 2016.
Idel Hanley, Policy, Research and Parliamentary Manager at Medical Justice said:
“Downgrading important safeguards, as was done by introducing the second opinion policy, without meaningful consultation or parliamentary scrutiny, is an affront to the rule of law and risked causing serious harm to detained people.
Immigration detention is known to be extremely damaging to people’s mental health and wellbeing. Those with histories of torture, trafficking, and trauma, as many detained people have, are at particular risk of deterioration in their mental health. In requiring a second assessment by a Home Office contracted doctor, this policy by design, risks retraumatising already vulnerable people and prolonging their detention. This policy’s provision that the second assessment could be carried out purely on the basis of documents, without the Home Office doctor ever meeting the detained person, and then lead to the downgrading of medical evidence, was also problematic.
The Home Office’s attempt to undermine the weight of external medical evidence in this way is unacceptable.
As immigration detention is set to expand, this judgment is an important reminder for the Home Office to conduct meaningful consultations and act in accordance with the law.”
Jed Pennington, Partner in Wilson Solicitors Public Law & Human Rights Team said:
“Fair consultation and compliance with the law made by Parliament are fundamental requirements of this country’s democratic process and the rule of law. The Home Office subverted these requirements by introducing the Second Opinion Policy without consultation and without seeking Parliament’s approval. Today’s decision by the Court should make a real difference to vulnerable people held in immigration detention.”
Sonya Sceats, Chief Executive at Freedom from Torture said:
“We know from our specialist therapy services across the country how profoundly damaging detention is for survivors of torture. As outlined in our expert evidence, this unlawful policy risked retraumatising vulnerable people and prolonging the devastating impacts of detention. This is a stark reminder of how important protective safeguards are and it’s shameful how the Home Office downgraded them. The bottom line is survivors of torture should never be detained.”
Contact: Emma Ginn on firstname.lastname@example.org / 07786 517379
Immigration detention is known to cause harm to those held there. It has been found to cause mental health illnesses, exacerbate existing mental health conditions and have a re-traumatising effect for many. Detained people often have histories of torture, trafficking and trauma, rendering them at a particular risk of harm in detention. Healthcare in detention is inadequate and inquests have found that neglect has contributed to deaths.
Clinical safeguards designed to protect vulnerable people and route them out of detention have never functioned effectively. The clinical safeguards and detention healthcare have most recently been found to be inadequate and part of a system resulting in mistreatment, by the public inquiry into Brook House Immigration Removal Centre (IRC), the Brook House Inquiry, which found 19 instances of inhuman and degrading treatment in a 5-month period.
Medical evidence is essential in documenting an individual’s health, deterioration and suffering caused by detention. It can make the difference between someone being detained or released. Medical Justice is the only charity to send independent doctors into all IRCs to conduct clinical assessments to this effect and write medico-legal reports (MLR). Such assessments can take 4 to 5 hours and require significant levels of trust from the detained individual. They take considerable time to analyse medical records prior to the assessment, to draft the report following the assessment, and to undergo a rigorous review process. The second opinion policy is an affront to this.
Prior to the second opinion policy being introduced, Home Office caseworkers would have had to review the person’s detention on receipt of an external MLR. A full MLR, completed in accordance with the required standards, finding that the person was at risk in detention, would weigh very significantly against continuing detention. The second opinion policy however directs caseworkers to delay reviewing a vulnerable person’s detention on the basis of the information contained in an independent MLR and instead to refer them for further assessment, by a Home Office contracted doctor.
However, in comparison to MLR assessments, assessments for second opinion reports may be comparatively cursory due to a lack of time, trust and disclosure. We are concerned that some people in detention will not perceive the Home Office contracted doctor as independent, and therefore will not trust them. This could prevent full disclosure of the extent of their history or symptoms. This could result in the second opinion reports being more likely to underestimate the person’s symptoms, leading to a downgrading of the medical and thus individuals remaining in detention.
Medical Justice is the only charity that sends independent volunteer clinicians to visit clients detained in IRCs to document their scars of torture, deterioration of health and injuries sustained during violent incidents. It has handled 3,589 referrals for people in detention since the 2017 BBC broadcast. We publish research, undertake policy work and strategic litigation, and act as the secretariat for the APPG. Medical Justice was appointed as a CP due to its extensive first-hand experience of the clinical safeguarding and healthcare failures in IRCs. Our comprehensive evidence submitted to BHI was pivotal in demonstrating a causal link between the complete failure of clinical safeguards and the violent abuse.