July 25, 2023
Wilson Solicitors Public Law and Human Rights team (PLHR) is representing charity Medical Justice 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 today, 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 Medical Justice’s application for a Costs Capping Order. This means that Medical Justice is protected against the risk of adverse costs it 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.
Medical Justice 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.
Medical Justice argues 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 government recently passed legislation (the Illegal Migration Act 2023) which expands its immigration detention powers and makes it harder for people to challenge their detention court. The Adults at Risk policy will be an even more important safeguard once this legislation is operationalised.
Wilson Solicitors and Medical Justice are grateful to their counsel team, Shu Shin Luh and Laura Profumo, of Doughty Street Chambers. Jed Pennington is the lead solicitor for Medical Justice.
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