Some of the cases we have been involved with include:
Date: 2024
Title: Challenge regarding the Home Office’s Second Opinion Policy
Case Name: Medical Justice, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 38 (Admin) (12 January 2024)
Court: High Court
Background
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.
Outcome
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.
The judge found that the Second Opinion Policy was unlawful because it contradicted the Adults at Risk Statutory Guidance and because of a failure to consult.
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, [2021] 1 WLR 3931) the policy was unlawful.
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 Court ordered that the Second Opinion Policy be quashed and made a declaration that the failure to consult Medical Justice had been unlawful.
Impact
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.
Medical Justice was represented by Shu Shin Luh and Laura Profumo, of the Public Law and Immigration Detention teams at Doughty Street Chambers, instructed by Jed Pennington, partner in Wilson Solicitors’ Public Law and Human Rights Team.
Witness evidence was provided by Medical Justice staff Idel Hanley, Policy, Research and Parliamentary Manager, and Dr Elizabeth Clark, Clinical Advisor; as well as from Tara Wolfe, Health 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.
View on British and Irish Legal Information Institute >>
Date: 2022
Title: Challenge regarding operation of the Detained Duty Advice Scheme (DDAS)
Case Name: R (Detention Action) v Lord Chancellor [2022] EWHC 18 (Admin)
Court: High Court
Medical Justice provided a witness statement for the case
Background
The DDAS provides detained people in IRCs with 30 minutes of free legal advice after which the legal advice provider should make a decision as to whether the client qualifies for further legally aided services. In 2018 mew contracting arrangements began, expanding the number of DDAS providers from 9 firms to 77, including 38 with no prior experience of legal aid work and 64 with no prior experience of DDAS. Medical Justice, along with many NGOs and experienced legal firms, were concerned about the quality of the legal advice and representation through the DDAs, including the lack of expertise and failure of providers to take on cases with merits. In 2021 the Lord Chancellor made the decision to extend all the contracts by a year. Detention Action challenged the operation of the DDAS and decision to extend the contracts. Medical Justice provided a witness statement detailing our concerns and some of the experiences of our clients.
Outcome and Impact
Although the challenge to the DDA was dismissed by the High Court, the litigation did lead to an important clarification from the Lord Chancellor, who confirmed that only the 30 minute advice surgeries are subject to exclusive contracting arrangements, not the conduct of all legally aided immigration and asylum work for a person detained in an IRC. This is very significant as it means that detained people are not forced to only seek representation from those firms who happen to be on the DDAS rota for the IRC at the time, and are able to seek alternative legal aid representation instead.
View on British and Irish Legal Information Institute >>
Date: 2020
Title: Challenge to removal windows policy
Case Name: R (FB (Afghanistan) and Medical Justice) v Secretary of State for the Home Department [2020] EWCA Civ 1338
Court: Court of Appeal
Medical Justice brought this judicial review challenge in the High Court and appeal to the Court of Appeal
Background
In 2014 the Home Office reintroduced the ‘no-notice removals’ policy we had successfully challenged in 2010 (see below). After we threatened judicial review, the Home Office again amended the policy. However, this then became the ‘removal window’ policy, which allowed for people (both detained and in the community) to be removed within a ‘window’ period without further notice. Home Office refusals could be served within this removal window period, meaning that a person could be refused and then removed within a matter of hours, with no access to the courts. Over 40,000 people were given with removal windows.
Outcome and Impact
In 2019 Medical Justice initiated judicial review proceedings and was granted interim relief, suspending the use of removal windows. The High Court dismissed the case, but the removal window suspension remained in place while Medical Justice appealed to the Court of Appeal. In the Court of Appeal out case was heard alongside a challenge by an individual, FB, and the Equalities and Human Rights Commission intervened.
The Court of Appeal allowed Medical Justice’s appeal and found the removal window policy was unlawful because if gave rise to a real risk of preventing access to justice. Hickinbottom LJ. stated that: “whether an irregular migrant is removed before he or she has had an opportunity to obtain legal advice and apply to the court is a matter of pure happenchance. It is, in the legal sense, arbitrary and thus in any event unlawful”.
The quashing of the removal window policy has had a huge and positive effect on our casework and the ability of both Medical Justice and legal representative to assist detained people, particularly in the most urgent cases.
View on British and Irish Legal Information Institute >>
Date: 2019
Title: Challenge regarding detained people who lack capacity
Case Name: R (ASK and MDA) v Secretary of State for the Home Department [2019] EWCA Civ 1239
Court: Court of Appeal
Medical Justice provided witness statement evidence
Background
This case challenged the detention of people with mental health conditions, who whilst detained lacked capacity to challenge their detention or engage with detention procedures. These cases follow the decision in VC detailed below.
Outcome and Impact
The Court of Appeal found that the Home Office had discriminated against ASK and MDA in breach of the Equality Act 2010 by failing to make reasonable adjustments when they lacked capacity to engage in relation to important decisions, such as the decision to continue detention. This case has led to calls for the Home Office to take urgent steps to put in place safeguarding arrangements to protect the right of access to justice for detained people who may lack capacity.
View on British and Irish Legal Information Institute >>
Date: 2018
Title: Role of medical evidence and consideration of whether scars could have been ‘self-inflicted by proxy’
Case Name: KV (Sri Lanka) v Secretary of State for the Home Department
Court: Supreme Court
Medical Justice intervened in this case jointly with Helen Bamber Foundation and Freedom from Torture
Background
This case concerned a Sri Lankan man who was seeking asylum and in his claim provided medical reports that document scarring to his back and arms attributed to being tortured by burning with metal rods. The report of a medical expert concluded that the scarring was ‘highly consistent’ with KV’s account of torture and it was unlikely the scars were ‘self-inflicted by proxy’ (i.e. inflicted at his request). However, the Upper Tribunal dismissed his appeal, seemingly concluding the scars were self-inflicted by proxy. On appeal, the majority of the Court of Appeal held that the assessment made by the tribunal was legitimately open to it, and that the medical expert had gone beyond his remit by considering consistency of the scarring with KV’s account of torture and not only the specific mechanism of injury (i.e. burning with a metal rod).
Outcome and Impact
The Supreme Court allowed the appeal and in doing so held that a medical expert does not go beyond their remit in giving an expert opinion on the degree of consistency between their clinical findings and the account of torture, and in fact this can be of ‘significant value’ to the decision-maker and is in accordance with the ‘Istanbul Protocol’ (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1999), which should be recognised as equally authoritative as the relevant Practice Direction for expert medical evidence. The Court also emphasized the rarity of self-infliction by proxy and that evidence of this among asylum-seekers was almost non-existent.
This was an important case for asylum claims by torture survivors, that may involve medical evidence, providing clear guidance on the role and scope of medical evidence for medical experts and decision-makers and emphasising the rarity of self-infliction by proxy.
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Date: 2018
Title: Challenge regarding detention of man with serious mental illness
Case Name: R (VC) v Secretary of State for the Home Department
Court: Court of Appeal
Medical Justice provided witness statement evidence
Background
This case challenged the detention of a Nigerian man with bi-polar affective disorder whose mental health deteriorated whilst he was detained to the point of losing mental capacity.
Outcome and Impact
The Court of Appeal held that VC had been unlawfully detained for 10 months. The Court found that the Home Office had failed to apply its own policy which was in place at the time, misinterpreting ‘those suffering from serious mental illness which cannot be satisfactorily managed within detention’ as not applying ‘unless and until the Claimant’s condition deteriorated to the extent that he was hospitalised’. The Court also held that the Home Office acted in breach of the Equality Act 2010 in failing to make adjustments to ensure that VC could be assisted in challenging the decisions to detain him, and to segregate him during that detention.
The Court of Appeal did not hold that the treatment of VC breached Article 3 ECHR (prohibition of torture, inhuman, or degrading treatment). However, this aspect was appealed to the Supreme Court and in an order dated 11 January 2021, the Supreme Court allowed the appeal by consent, on the basis that the Home Office conceded that VC’s treatment in detention had breached Article 3 ECHR. The order stated that “It is declared that during the period of immigration detention when the Appellant suffered from a serious psychiatric illness, his rights under Article 3 ECHR not to suffer inhuman and degrading treatment were infringed”.
This case established the need to make reasonable adjustments for those lacking capacity, and established a precedent followed in future cases (including ASK and MDA above).
View on British and Irish Legal Information Institute >>
Date: 2018
Title: Challenge to torture definition in Adults at Risk policy
Court: High Court
Medical Justice issued this judicial review
Background
This case followed the 2017 challenge to the Adults at Risk policy (see below). Following that case, the Home Office introduced a new definition of torture as ‘any act by which a perpetrator intentionally inflicts severe pain or suffering on a victim in which – (a) the perpetrator has control (whether mental or physical) over the victim, and (b) as a result of that control, the victim is powerless to resist.’ Medical Justice had considerable concerns about this revised definition and how it would be applied in practice, and in our casework we began to see people denied rule 35(3) reports due to considerations of whether they were able to fight back or escape. This meant that people who would be vulnerable to harm in detention due to their previous experiences were not being appropriately identified under the policy. Medical Justice and others initially attempted to raise concerns with the Home Office. When this was ineffective Medical Justice again issued judicial review proceedings.
Outcome and Impact
Medical Justice was granted permission on all grounds. The Home Office then agreed to negotiate and eventually a settlement was reached, including the immediate publication of guidance clarifying that a ‘situation of powerlessness’ was sufficient and not that an individual had to be ‘powerless to resist’. This revised definition should prevent individuals who have experienced torture being refused rule 35(3) reports because of a view that they could fight back or escape.
See briefing from Bhatt Murphy
Date: 2017
Title: Challenge to Adults at Risk policy
Case Name: Medical Justice and Others v Secretary of State for the Home Department
Court: High Court
Medical Justice was the claimant in this judicial review, alongside a number of people who had been affected by the policy
Background
This case challenged the introduction of a narrower definition of torture for rule 35 reports in the 2016 Adults at Risk (AAR) policy, which restricted the definition to acts perpetrated by, or with the acquiescence of, state actors. It was apparent from our casework that the implementation of this definition excluded many people who were particularly vulnerable to harm in detention due to torture by non-state actors, such as homophobic attacks, trafficking, sexual exploitation, or abuse by armed groups such as the Taliban.
Outcome and Impact
Interim relief was granted in November 2016 and after the full hearing in 2017 the High Court found the definition to be unlawful, excluding victims of torture covered by the definition in the previous policy whom evidence showed were particularly vulnerable to harm in detention without rational or objective evidence based and contrary to the purpose of section 59 of the Immigration Act 2016. The judge noted that: “Medical Justice made much the same points as it did in these proceedings during the consultation” but these concerns were disregarded by the Home Office. As a result of this case the Home Office had to change its definition of torture for rule 35 to avoid excluding vulnerable people at risk of harm in detention due to their experiences of abuse and torture by non-state actors.
View on British and Irish Legal Information Institute >>
2016: Medical Justice and BID joint intervention in the Supreme Court case of O – detention of the mentally ill
This case concerned the detention of people with serious mental illness and the courts approach to detention challenges. The Home Office argued that the health of detained people would be ‘satisfactorily managed’ if their condition did not deteriorate, even if treatment was available outside of detention which would allow them to recover from their illness.
The Supreme Court rejected that argument, finding that, if a detained person’s health could improve with treatment which would be available in the community, but which was not available in detention, then that should be considered. It is the Home Office’s responsibility to make inquiries about community-based treatment which could make a difference to the detainee’s condition. Read the Judgment here
2015: Medical Justice provided evidence in respect of the detention of pregnant women (PA)
Medical Justice client PA was detained at Yarl’s Wood IRC under immigration powers for 1 month whilst she was pregnant. Her judicial review challenged her own detention and the legality of the Home Office’s policy and practice of detaining pregnant women as a whole. The claim was supported by evidence from the Royal College of Midwives, Maternity Action and Medical Justice, having published Expecting Change in June 2013, raising serious concerns about the treatment of pregnant women detained under immigration powers. The claim settled in October 2015 with the Home Office admitting liability for unlawful detention, apologising and paying substantive damages as well as agreeing to review the policy in respect of the detention of pregnant women. (PA v SSHD, CO/1978/2014) Consent Order, October 2015.
2015: Medical Justice provided evidence in challenges of Detained Fast Track
Medical Justice provided evidence in individual challenges to the detained fast track process (JM and Others v SSHD [2015] EWHC 2331 (Admin)).
2014: Evidence provided for Article 3 case, our client MD – detention caused the onset of mental disorder
Medical Justice client, Ms MD, who had no history of mental illness before she (lawfully) entered the UK, was found by the High Court to have been detained unlawfully in conditions that amounted to ‘inhuman and degrading treatment’. She was detained for 17 months.
The judge wrote that after 4 months in detention Ms MD “was restrained, removed from association with other detainees and handcuffs were used to stop her harming herself. [Ms MD] self-harmed on at least eleven occasions … including occasions when she cut her forehead with the top of a sardine tin, when she again cut her forehead and the right side of her face this time with pieces of china, when she tried to strangle herself using a mobile telephone cable as a ligature and placed a pillow over her head, when she banged her head against the wall, when she cut her neck using pieces of china and occasions when she cut her stomach, neck and arm.” In response, she was subjected to force on many occasions, often by a number of male Serco officers. She was put in Isolation where she was handcuffed to stop her from self-harming.
Medical Justice sent a doctor to see Ms MD, followed later by a psychiatrist who diagnosed her as having a major depressive disorder with psychotic features and panic disorder. Medical Justice medico-legal reports documenting her deterioration were ignored and the ‘Rule 35’ safeguard failed.
Ms MD eventually lost mental capacity to instruct lawyers, so the Official Solicitor acted for her in a judicial review of her detention – she was released. Later, an independent psychiatrist concluded that “detention did not exacerbate a pre-existing mental disorder but caused the onset of the mental disorder”. R (MD) v SSHD [2014] EWHC 2249 (Admin)
2014: Medical Justice and Mind joint intervention – Das, regarding detention of the mentally ill
Medical Justice and Mind intervened in this case regarding the interpretation of Home Office policy, which states that “those suffering from a serious mental illness which cannot be satisfactorily managed within detention” can only be detained in “very exceptional circumstances”. The Court of Appeal overturned the High Court decision that ‘serious’ required hospitalisation or detention under the Mental Health Act, noting evidence that many of those with serious mental illnesses are best treated in the community and some mental illnesses would be exacerbated by hospital treatment. [2014] EWCA Civ 45
2014: Medical Justice letter before claim – No Notice Removals
In 2014, Medical Justice sent a letter before claim to the SSHD regarding this policy, as a result of which the policy was withdrawn and the three month limit on the period during which individuals can be removed after service of a removal notice was introduced.
2013: Evidence provided for judicial review challenging the use of force
Medical Justice provided evidence in support of a judicial review challenging the use of force during enforced removal. R (Z) v SSHD [2013] EWHC 498 (Admin).
2013: Evidence provided for judicial review challenging the use of force on pregnant women and children
Medical Justice provided evidence in support of a judicial review challenging the use of force on pregnant women and children while held in immigration detention, in circumstances where no policy was in place. The Children’s Commissioner supported the claim as an interested party. The case resulted in the reinstatement of a former policy prohibiting the use of force against both groups save for where it is essential to prevent harm. Owing to the reinstatement of the policy, the claim settled prior to permission. (R (Chen and Others) v SSHD CO/1119/2013)
2013: Medical Justice provided evidence in a judicial review brought by victims of torture (EO & others)
The High Court judge has ruled that the Secretary of State’s detention of 3 victims of torture was unlawful following legal action brought by 5 claimants who had been subjected to lengthy periods of detention in Immigration Removal Centres. The claims were assisted by Medical Justice and the Helen Bamber Foundation, who believe there are systemic failings in the application of the Home Office’s own policy that where there is independent evidence that an individual has been the victim of torture, they should only be detained in very exceptional circumstances. (EO and Others) v SSHD [2013] EWHC 1236 (Admin).
2013: Narrowed definition of torture used in Rule 35
Medical Justice issued a Letter Before Claim challenging the Home Office narrowing of the definition of torture to ill-treatment inflicted by state agents. The Home Office conceded the issue and agreed to apply a broader definition.
2012: Medical Justice and Mind joint intervention – HA, Mistreatment of man with mental illness.
This was a joint intervention with Mind in the case of HA (Nigeria) who should not have been detained due to his mental health. He was transferred between hospital and detention centres several times, exacerbating his symptoms. His treatment and the conditions in which he was held were found to amount to a breach of Article 3 of the European Convention of Human Rights, which prohibits inhuman and degrading treatment. The relevant detention policy – which had been changed to allow people with mental illness to be detained if they could be satisfactorily managed in detention – was also found to be unlawful. Medical Justice and Mind were granted permission to jointly intervene in the Court of the Appeal, but the Home Office withdrew its appeal. [2012] EWHC 979 (Admin)
2012: Medical Justice provided evidence regarding use of force on detained people in hospital
Medical Justice provided evidence in support of judicial review claims challenging the use of force on immigration detainees in hospital (FGP v Serco & SSHD [2012] EWHC 1904 (Admin)
2012: Medical Justice provided evidence in the case of EH, a Rwandan genocide survivor
EH, a survivor of the Rwandan genocide, was unlawfully detained for three months between November 2010 and February 2011 because of the Defendant’s failure to apply her policy that those with serious mental illness should only be detained very exceptionally. EH was granted leave to remain for a further three years. The Secretary of State for the Home Department agreed to pay EH damages in the sum of £35,000. [2012] EWHC 2569 (Admin)
2011: Intervention in the case of MD (Angola) – access to treatment for people diagnosed with HIV
Medical Justice intervened in challenges to immigration detention by people who had been diagnosed with HIV (R (MD (Angola) v SSHD [2011] EWCA Civ 1238).
2011: Evidence provided for an Article 3 case, Medical Justice client S
R (S) v SSHD [2011] EWHC 2120 (Admin)
2011: Evidence provided for Article 3 case, Medical Justice client BA
Detention and conditions of detention which subjected individuals to ill-treatment in breach of Article 3 ECHR
R (BA) v SSHD [2011] EWHC 2748 (Admin)
2010: Zero notice for removals
Medical Justice brought a legal case against UKBA on its ‘zero-notice’ removals policy. In July 2010 the High Court quashed the policy [2010] EWHC 1925 (Admin).
Immigration officers had been descending on vulnerable people late at night and transporting them under guard to early morning flights a few hours later with no access to legal advice. The policy applied to vulnerable categories of people, including unaccompanied children and those considered to be a suicide risk. The Home Office was relying on the policy to remove families now that the detention of children is more restricted.
The Home Office appealed the High Court decision in the Court of Appeal. The Court of Appeal upheld the High Court’s decision in November 2011. The Home Office stated its desire to appeal to the Supreme Court but in February 2012, it confirmed that it was no longer intending to do so.
2009: Access for independent doctors to immigration removal centres
In 2009 the Home Office and its contractor, Serco, at Yarl’s Wood IRC tried to restrict access to detained persons by independent doctors. Medical Justice started Judicial Review proceedings against the Home Office and Serco. The case was settled out of court with the Home Offic withdrawing most of its restrictions, thus preserving detained persons’ rights to access independent doctors.
