High Court quashes unlawful policy on vulnerable people in immigration detention
In a judgment handed down today (12 January 2024), the High Court ruled that the government's policy of requiring a second medical opinion over people in detention is unlawful.
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 as to their vulnerability to harm in immigration detention. The second opinion delays consideration of the available evidence concerning the likely harm to the vulnerable person of continued detention for several weeks or more.
Witness evidence was provided by Medical Justice staff Idel Hanley, Policy, Research and Parliamentary Manager, and Dr Elizabeth Clark, Clinical Advisor; 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.
What is the Second Opinion Policy?
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”.
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.
Today, the Court ordered that the Second Opinion Policy be quashed and made a declaration that the failure to consult Medical Justice had been unlawful.
Sonya Sceats, Chief Executive at Freedom from Torture, said:
“We know from our specialist therapy services across the country how profoundly damaging detention is for survivors of torture. As outlined in our expert evidence, this unlawful policy risked retraumatising vulnerable people and prolonging the devastating impacts of detention. This is a stark reminder of how important protective safeguards are and it’s shameful how the Home Office downgraded them. The bottom line is survivors of torture should never be detained.”
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