Court of Appeal: Home Office failure to consult Medical Justice unlawful

In a decision handed down today, 14 March 2025, the Court of Appeal has upheld a judicial review brought by Medical Justice that the Home Office is required to consult it before introducing any policy affecting the immigration detention of ‘adults at risk’. The Home Office acted unlawfully in failing to do so in respect of a policy which allowed for second medical opinions to be sought from Home Office contracted doctors when presented with medico-legal reports commissioned by or on behalf of people in immigration detention (‘the Second Opinion policy’). The Court of Appeal’s judgment (available here) confirms the importance of the consultation duty as a cornerstone of democratic governance, particularly in the context of the exercise of immigration detention powers.

Medical Justice

Medical Justice is a charity that was established in 2005 to facilitate the provision of independent medical advice to people held in immigration detention. It also monitors and investigates the adequacy of healthcare provision and the impact of immigration detention on health, and publishes research and campaigns against the use of immigration detention. The provision of medico-legal reports is a key function of Medical Justice's casework.

Background and what the Court of Appeal decided

For more background about the case, you can read our post on the High Court judgment here.  

In summary, the High Court’s 12 January 2024 judgment found that the Home Office had a duty to consult Medical Justice, a key stakeholder, on policies affecting the detention under immigration powers of vulnerable people, and that the Home Secretary acted in breach of that important duty by failing to do so during the formulation of and prior to implementation of the Second Opinion policy. The High Court also quashed the Second Opinion policy on the basis it contradicted the Adults at Risk Statutory Guidance that was issued under section 59 of the Immigration Act 2016. The High Court decided that the Statutory Guidance only allows for a very short (“de minimis”) period for the Home Office to seek further evidence when it received a medico-legal report by or on behalf of a detained person who claims to be an adult at risk, and does not allow the Home Office to prolong detention just to seek a second medical opinion.  

Following the High Court’s decision, the Home Secretary conducted a consultation involving Medical Justice. Following this, the Adults at Risk Statutory Guidance was amended to more explicitly allow for a Second Opinion policy and revised non-statutory guidance was published, which came into effect on 21 May 2024.

Notwithstanding the fact that the policies under scrutiny by the High Court had been superseded by revised versions, the Home Secretary appealed the High Court’s judgment.  

On the duty to consult, the Home Secretary asserted that: “When, and whether, ad hoc engagement with interested individuals and organisations gives rise to current and prospective legal obligations to consult is of pressing concern across central and local government”.

The Court of Appeal dismissed the Home Secretary’s appeal on this ground outright, finding that there was no error in the carefully considered analysis of the High Court which led to a finding that the Home Secretary has a duty to consult Medical Justice on detention policies affecting adults at risk, and its failure to do so in respect of the Second Opinion policy was unlawful.  

Success on the consultation point is important for Medical Justice and other organisations that engage with the Home Office. As was explained by Emma Ginn, Medical Justice’s Director, in her witness statement for the judicial review: “The duty of consultation underpins a democratic process where the risk of injustice being done to the affected groups is minimised by hearing from representative bodies able to voice concerns and proposals on their behalf.” She also explained that past consultations on adults at risk immigration detention policies had “made a material difference to the form and substance of the policy subsequently implemented”.

In respect of the construction of the Statutory Guidance, the Court of Appeal allowed the Home Secretary’s appeal on a narrow basis, finding that the Guidance allowed for a “short” time period for the Home Office to seek further evidence. It did not, however, provide guidance on how long this might be and did not decide whether the timescales provided for in the Second Opinion policy were lawful. What is “short” and "reasonable” will depend on the circumstances of the individual case.

The Court of Appeal acknowledged that the Statutory Guidance and Second Opinion Policy considered by the High Court had been superseded by revised version of the policies, but accepted the Home Secretary’s submissions that it is possible that there will be claims for damages for unlawful detention in relation to people who had the Second Opinion policy applied to them before the amended policies came into effect on 21 May 2024. There was no evidence that there were any such claims but given the 6-year time limit for bringing false imprisonment claims, this remains a theoretical possibility.

Finally, the Court of Appeal made an order: (1) upholding the declaration made by the High Court that there had been an unlawful failure to consult Medical Justice; (2) that the Home Secretary is to pay 50% of Medical Justice’s costs in the High Court and Court of Appeal; (3) refusing the Home Secretary’s application for permission to appeal to the Supreme Court.

What the Court of Appeal did not decide

First, Medical Justice’s original grounds had argued Statutory Guidance issued under section 59 of the 2016 Act must further the statutory purpose of this provision by facilitating the prompt identification of adults at risk, their release, and the reduction generally in the detention of people vulnerable to harm in immigration detention. However, the High Court decided that the narrow purpose of section 59 was to ensure Parliamentary oversight of the Statutory Guidance. If guidance (statutory or non-statutory) is issued which cuts across the intention of Parliament in passing section 59, it may be open to challenge on the basis of Medical Justice’s argument.  

Second, the principle underlying the High Court’s decision that non-statutory guidance will be unlawful if it contradicts non-statutory still holds good. This was not challenged by the Home Secretary. The Court of Appeal’s judgment was decided on the narrow basis that the Statutory Guidance did permit a “short” time for obtaining further evidence, but went no further to find whether the timescales in the Second Opinion Policy reflected this or contradicted this principle.

Third, the Court of Appeal’s judgment does not close off claims for damages for people subject to the Second Opinion policy. In relation to people detained under the policy that was in place before 21 May 2024, and the one that came into effect on this date, it will be open to argue that the timescales for seeking second opinion evidence were unreasonable and therefore unlawful in their individual case. Relevant factors affecting the legality of detention may include the assessment of the likelihood of harm and the seriousness of harm of remaining in detention, as well as the risks of absconding and offending if the person is released.

Further information

The ‘adults at risk’ policy was introduced by the Home Office in response to Stephen Shaw’s report, which the Home Office commissioned due to concerns that too many vulnerable people were being held in immigration detention, for too long. This had led to a number of court cases where people in immigration detention were subjected to conditions that were inhuman and degrading. The Brook House inquiry also made findings that people at Brook House immigration removal centre were held in conditions that were inhuman and degrading.

In addition to its concern at the policy being introduced without any form of consultation, Medical Justice brought this challenge due to concerns around the Second Opinion policy causing immense suffering and harm to people who are particularly vulnerable people in immigration detention. Through its casework, Medical Justice has already seen vulnerable people deteriorate during the period of delay caused by the application of the Second Opinion policy. The important context for the rise in external medico-legal reports that led the Home Office to introduce the Second Opinion policy is the long-standing systemic failures in the safeguards in the immigration detention system, the Rule 35 process and associated policies.

A bundle of key documents from the case is available here, including the judicial review grounds, the key witness statements for the consultation point, and the decisions on its Costs Capping Order.

Medical Justice was represented by Wilson partner Jed Pennington, instructing counsel Angus McCullough KC, Shu Shin Luh and Laura Profumo.  

Enquiries about the case can be sent to Medical Justice’s Director Emma Ginn emma.ginn@medicaljustice.org.uk or Jed Pennington j.pennington@wilsonllp.co.uk.