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

The court considered whether an operational "Second Opinion Policy" requiring Home Office caseworkers to obtain a Home Office-contracted clinical second opinion on external medical/medico-legal reports (MLRs) was lawful in light of the statutory Adults at Risk regime created by section 59 of the Immigration Act 2016 and the Statutory Guidance issued under it. The principal legal questions were whether the Policy contradicted the Statutory Guidance and/or undermined the statutory purpose in s.59 by directing caseworkers to postpone decisions on detention pending a second opinion and by reducing the weight otherwise given to external medico-legal evidence; and whether the Home Office had a common-law duty to consult the claimant charity before introducing the Policy.

The judge held that the Statutory Guidance requires decisions about detention to be taken on the available evidence and that it is unlawful to defer consideration of material evidence for more than a de minimis period. The Second Opinion Policy systematically directed deferral of decisions in many cases where an external medical report satisfied baseline standards, and authorised an evaluative approach that could downgrade MLRs; this was inconsistent with the Statutory Guidance and frustrated the statutory scheme. The Policy was therefore unlawful and quashed. The court also found that, on the evidence, the claimant had a legitimate expectation of consultation arising from an established practice of consultation about material adults-at-risk policy changes and that the Home Office’s failure to consult in advance was unlawful.

Background and parties: The claimant charity, Medical Justice, provides medico-legal assessments and assistance for people detained for immigration purposes and challenges a Home Office interim "Second Opinion Policy" introduced in 2022. The Defendant is the Secretary of State for the Home Department. The Statutory Guidance under section 59 Immigration Act 2016 and related Caseworker/operational guidance set out how "adults at risk" are identified and how external medical reports are to be weighed.

Nature of the claim: Judicial review seeking (i) a declaration that the Second Opinion Policy is unlawful because it contradicts the Statutory Guidance and frustrates the purpose of section 59 (grounds 1 and 2), and (ii) a declaration that the Home Office breached a common-law duty to consult the claimant before implementing the Policy (ground 3). The claimant sought quashing relief against the Policy.

Issues framed by the court:

• Whether the terms of the Second Opinion Policy contradict the Statutory Guidance so as to render the Policy unlawful.
• Whether the Policy undermines the statutory purpose of section 59 Immigration Act 2016.
• Whether, on the evidence, the Home Office was under a common-law duty to consult the claimant before publishing the Policy.

Court’s reasoning and subsidiary findings: The court adopted an objective construction of the Statutory Guidance and the Policy. It concluded the Statutory Guidance requires decisions about detention to be taken "on the available evidence" and that a material external medical report that meets baseline standards must be considered without undue postponement. The Second Opinion Policy, by mandating referral for a Home Office-contracted second opinion in most detained cases (subject only to limited exceptions) and instructing caseworkers not to change AAR level while a second opinion was awaited, effectively required postponement of decisions and authorised downgrading of external reports where the two reports disagreed. That conflicted with the Statutory Guidance and could frustrate the parliamentary-approved scheme under s.59. The court found the Policy inconsistent with the statutory framework and therefore unlawful. On consultation, the judge accepted the claimant’s uncontradicted evidence that the Home Office had, over many years and particularly since 2016, routinely and consistently consulted the claimant and similar NGOs on material adults-at-risk policy changes. That practice amounted to a legitimate expectation of consultation and the failure to consult before introducing the Policy was unlawful.

Remedy: The court quashed the Second Opinion Policy and upheld the claimant’s challenge on the stated grounds.

The claim succeeded. The court held that the Second Opinion Policy was unlawful because it conflicted with the Statutory Guidance issued under section 59 Immigration Act 2016 by directing systematic postponement of decisions on detention pending a Home Office second opinion and by permitting downgrading of external medico-legal reports, thereby undermining the statutory scheme. The court also held that the claimant had a legitimate expectation, based on an established practice of consultation, that it would be consulted about material adults-at-risk policy changes and that the Home Office’s failure to consult was unlawful. The Second Opinion Policy was quashed.