Medical Justice have been represented by Wilson Solicitors in a challenge to Home Office guidance providing for the Home Office to seek second opinion medical reports for people in immigration detention.
At an oral hearing at the Royal Courts of Justice on 25th July 2023, Mrs Justice Heather Williams DBE granted Medical Justice permission to argue its case at a full hearing, to take place later this year. The judge also granted our application for a Costs Capping Order. This means that we will be protected against the risk of adverse costs we cannot afford.
The case concerns the Home Office’s Adults at Risk policy, which is a key safeguard intended to ensure that the detention of people who are vulnerable to harm in immigration detention is kept to a minimum. The policy was introduced following Stephen Shaw’s review, which found that vulnerable people were being detained too often and for too long.
Our challenge argues that the second opinion policy is unlawful because it purports to allow the Home Office to disregard a medico-legal report provided by a person in immigration detention while it seeks a second opinion from a Home Office contracted doctor. The process of obtaining a second opinion report can take up to 28 days, with no timescale for the Home Office to consider the report and undertake a detention review. The policy recognises that Home Office caseworkers are not clinically trained; this limits their ability to evaluate rival medical reports. Instead, the policy directs caseworkers to decide vulnerability based upon clinical issues the two doctors agree on. In practice, this will likely mean that vulnerability will be assessed at a lower level than would be the case if the medical report provided by the detainee was assessed on its terms.
We further argue that the second opinion policy is inconsistent with the Adults at Risk statutory guidance, which states that medical reports which meet certain base line standards should be accepted as the evidence at the highest level of vulnerability (level 3). It also argues the policy frustrates the legislation the statutory guidance is made under (section 59 of the Immigration Act 2016), whose purpose is to minimise the detention of people who are particularly vulnerable to harm in immigration detention. Finally, it is alleged that it was unlawful to introduce the policy without following an established practice of consultation with Medical Justice and other stakeholders. The judge held that all of these grounds are arguable.
The Illegal Migration Act 2023, which recently received Royal Assent, dramatically expands the government’s immigration detention powers and makes it harder for people to challenge their detention. The Adults at Risk policy will be an even more important safeguard once this legislation is operationalised.
We are grateful to Jed Pennington and Gabriel Tan at Wilson Solicitors and to our counsel team, Shu Shin Luh and Laura Profumo, of Doughty Street Chambers.