Medical Justice, R (on the application of) v Secretary of State for the Home Department

Statutory guidance issued under section 59 of the Immigration Act 2016 required detention decisions concerning adults at risk to be made on the available evidence. A material new medical report had to be considered promptly, the risk level assessed, and continued detention justified on that evidence. A policy which systematically deferred that assessment while seeking a second opinion contradicted the guidance and was unlawful because the guidance had been approved by Parliament. The statutory purpose of section 59 could not, however, be derived from the guidance itself so as to prohibit every second-opinion process. A consistent practice of consulting a specialist stakeholder on material policy changes may create a legitimate expectation of consultation.

The claimant, Medical Justice, challenged the Secretary of State’s Second Opinion Policy concerning external medical reports submitted for detained immigration detainees. The policy generally required a Home Office caseworker to obtain a second clinical opinion before determining the detainee’s vulnerability evidence level, while statutory casework continued.

The claimant argued that the policy contradicted the statutory guidance issued under section 59 of the Immigration Act 2016, frustrated the statutory purpose of that provision, and was introduced in breach of a common law duty to consult. The central issues were whether the policy required unlawful delay in applying the statutory guidance and whether the claimant had a legitimate expectation of consultation.

1. Interpretation of the statutory guidance. The guidance created a presumption against detention of an adult at risk. Decisions had to be made on the available evidence, including the level and weight of evidence supporting vulnerability. That obligation continued during detention and at reviews. An external medical report had to be considered when received, the risk level assessed, and continued detention justified. A short delay to await an existing medical appointment might be permissible, but organising a further assessment to obtain potentially contradictory evidence was materially different.
2. Contradiction caused by the Second Opinion Policy. The policy systematically deferred changing the detainee’s risk level until the second opinion was received. The likely delay was more than de minimis. Its terms therefore departed from the statutory guidance, even though the policy stated that it operated alongside that guidance and allowed release in some cases before the second opinion was complete.
3. Lawfulness. The statutory guidance had been issued under section 59 and approved by Parliament. The Secretary of State could not promulgate a policy which contradicted or undermined it without parliamentary approval. Applying the principle in R(A), the policy positively authorised or encouraged caseworkers to act contrary to the approved guidance and failed the relevant Gillick test.
4. The separate argument that the policy frustrated the statutory purpose of section 59 was not established in its broader form. The purpose of section 59 was to secure parliamentary scrutiny, transparency and consistency in guidance on the specified matters. It did not prohibit a second-opinion process as such, subject to the necessary statutory requirements.
5. Consultation. The claimant established a consistent practice, particularly since 2016, of being consulted on material policy developments concerning adults at risk in immigration detention. The practice generated a legitimate expectation of consultation. The absence of any real explanation for excluding the claimant from consultation on the Second Opinion Policy breached that expectation. The alternative arguments based on conspicuous unfairness, rationality and voluntary consultation were not finally determined.
6. The Second Opinion Policy was quashed. The court rejected the argument that relief should be refused because the claimant’s views had allegedly been considered after publication.

This was a first-instance judicial review in the Administrative Court. Permission had been granted by Williams J, who also held that the claimant had standing: [2023] EWHC 2848 (Admin).