Medical Justice v The Secretary of State for the Home Department

Statutory guidance governing vulnerable adults in immigration detention does not require the vulnerability and detention assessment to be completed immediately when a medico-legal report is received. “Available evidence” may include evidence that the caseworker has or is in a position to obtain.

A caseworker may therefore take a reasonable, short period to obtain independent evidence, balancing informed decision-making against the risk of harm from continued detention. The court left open the precise limits of that period. A legitimate expectation of consultation may arise from an established practice only where it is sufficiently clear, widespread, established, recognised and consistent. An appellate court should not overturn the resulting factual finding merely because it might have reached a different view.

Medical Justice challenged the Interim Guidance establishing a second-opinion process for external medico-legal reports concerning people in immigration detention. It argued that the policy was inconsistent with the statutory guidance issued under the Immigration Act 2016 and that the Secretary of State was under a common-law duty to consult.

Linden J upheld both grounds, issued declarations and quashed the policy in [2024] EWHC 38 (Admin). By the time of the appeal, the policy had been superseded by revised guidance. The Court of Appeal nevertheless heard the appeal because damages claims relating to earlier detention remained theoretically possible. The central issues were whether the statutory guidance permitted a short evidence-gathering period and whether the finding of an established consultation practice was wrong.

The appeal was allowed on ground 1 and dismissed on ground 2. Newey LJ agreed with both judgments.

1. Construction of the statutory guidance. The language of the guidance did not impose a deadline requiring the assessment to be carried out forthwith when a medico-legal report was received. The phrase “available evidence” was not confined to evidence physically before the caseworker at that moment. Subject to the context, it could include evidence which the caseworker had or was in a position to obtain. The statutory context under section 59 of the Immigration Act 2016 did not alter that conclusion.
2. Reasonable evidence-gathering period. The guidance embodied a presumption against detaining adults at risk, but also recognised the importance of identifying genuine cases and making informed decisions. Caseworkers were therefore entitled to a reasonable, short period to seek independent evidence about the reliability of an external report. That period had to balance the public interest in checking the evidence against the risk of harm caused by continued detention. The guidance did not establish an absolute rule that vulnerable people could never be detained. The court expressly left open whether the Interim Guidance’s particular timescales exceeded the reasonable period permitted.
3. Consultation and appellate review. Under CPR 52.21(3)(i), and the principles in Henderson v Foxworth Investments Limited and related authorities, an appellate court may overturn a factual finding only in limited circumstances, such as absence of an evidential basis, misunderstanding of the evidence or failure to consider relevant evidence. It may not do so merely because it might have reached a different conclusion.
4. A legitimate expectation of consultation may arise from an unambiguous, widespread, well-established, well-recognised and sufficiently consistent practice. Whether engagement amounted to consultation depended on substance rather than terminology. The evidence justified Linden J’s finding despite the evidential imperfections, minor amendments to earlier guidance and the absence of exhibited records. No error of approach or qualifying evidential failure was shown. Ground 2 was therefore dismissed.

1. High Court of Justice, King’s Bench Division: Linden J upheld both challenges, issued declarations and quashed the Second Opinion Policy in [2024] EWHC 38 (Admin).
2. Court of Appeal (Civil Division): Ground 1 was allowed. Dingemans LJ dismissed ground 2, with Newey LJ agreeing with both judgments. The appeal was allowed in part.