Court of Appeal confirms Home Office must consult Medical Justice on immigration detention policy

The Home Secretary has been only partially successful in the Court of Appeal in relation to Medical Justice’s challenge to the introduction of a policy allowing caseworkers to refer medical evidence for a second opinion from the Home Office’s medical staff where they believed that standards were not being met. The policy has since been incorporated into the statutory Adults at Risk guidance, but the Home Secretary insisted that the appeal proceed in case of, currently hypothetical, false imprisonment challenges based on the High Court’s decision, where Medical Justice succeeded. The case is Medical Justice v The Secretary of State for the Home Department [2025] EWCA Civ 251.

Background

Jed has written an excellent explainer of the second opinion process and Medical Justice’s challenge. The second opinion policy refers to the “Interim Guidance: Requesting a second opinion for an external medical report/Medico-Legal Report” published on 12 September 2022 which provided for the Home Office to get a second opinion on an externally commissioned medico-legal report from its own medical staff. The Adults at Risk statutory guidance in place at the time was dated May 2021.

The High Court had agreed with Medical Justice that the second opinion policy was inconsistent with the statutory guidance because the latter said that vulnerability should be assessed based on the available evidence. Medical Justice also succeeded in arguing that the Home Secretary was under a common law duty to consult them about the introduction of the second opinion policy and had failed to do so. One of the main concerns had been that use of the process leads to an increase in the length of detention because of the time taken by the Home Office to get the second opinion.

Following the High Court’s decision, the Home Secretary started a consultation on changes to the statutory guidance, to include a process where caseworkers could seek a second medical opinion. The new version of the statutory guidance came into effect on 21 May 2024 with express provision for a second opinion to be sought.

By this time the Home Secretary had also appealed the High Court’s decision and Medical Justice sought to have that permission to appeal rescinded on the grounds that it was now academic. The court declined to do so on the ground that there may be false imprisonment claims brought by people who had the second opinion policy applied to them before the guidance was amended, even though the Home Office provided no evidence of any such cases.

The Court of Appeal

On the first issue, the High Court had concluded that “on the basis of the available evidence” (the wording in the statutory guidance at the time) meant that it would be contrary to the guidance for the Home Office to prolong detention for more than a de minimis period after receipt of an external medical report. The second opinion policy provides for a standard period of twelve working days (two and a half weeks) up to a maximum of 18 workings days (over three weeks) of further detention. As the statutory guidance had been approved by Parliament, that took precedence over the second opinion policy.

The Court of Appeal disagreed with the High Court on the point that the assessment of a medico-legal report must happen within a very short time after receipt. The court said that the guidance “says nothing explicit about the time within which it should be carried out” and “the word “available” does not necessarily mean that the evidence in question should be on the caseworker’s desk at the moment that the question of vulnerability is first raised”.

The court also considered the context of the statutory guidance, which at the time said that there should be a presumption against the detention of vulnerable people. The court considered that other contextual considerations were also important, such as the need for informed decision-making.

The court said that the public interest in the Home Secretary being able to make an informed decision was not “outweighed by the risk that a person who would otherwise be entitled to immediate release may (though they will not necessarily) suffer significant harm, or further harm, from the continuation of their detention for a short further period.” The Home Secretary’s appeal on this point was allowed.

The court considered that the statutory guidance allowed the Home Office a reasonable period of time to gather further evidence and expressly stated that no finding was being made on the timescales in the interim guidance and whether they exceeded what would be considered reasonable.

The second issue under appeal was whether Medical Justice had a legitimate expectation of consultation in relation to the second appeals policy, the High Court having concluded that they did. The Home Secretary appealed on the ground that the High Court judge had misdirected himself in law.

The Court of Appeal dismissed this argument, saying that there was no error in the judge’s approach to fact finding, thereby upholding the finding that the Home Office must consult Medical Justice in respect of policies concerning adults at risk in immigration detention.

Conclusion

Preservation of the consultation decision is a useful outcome here, as the Home Office is often reluctant to consult in advance of changes. When they do consult, sometimes (certainly not always) external feedback is taken on board and incorporated into new guidance, and policies and the system as a whole is always better for it. It just shouldn’t be this hard to get them to do it.