IS (Bangladesh), R (on the application of) v Secretary of State for the Home Department
[2023] EWHC 3130 (Admin)
Medical Justice, R (on the application of) v Secretary of State for the Home Department
12 January 2024
[2024] EWHC 38 (Admin)
High Court
A court ruled that a Home Office policy making immigration officials get a second opinion on whether sick detainees should be released was illegal. The policy caused unfair delays and went against earlier rules approved by Parliament. The court also said the Home Office should have asked a charity helping detainees for their opinion on the new policy before it was put into place.
Key Facts
- •The Secretary of State for the Home Department issued a Second Opinion Policy requiring a second opinion on external medical reports for immigration detainees.
- •Medical Justice, a charity assisting detained individuals, challenged the policy's legality.
- •The challenge centered on whether the Second Opinion Policy contradicted statutory guidance approved by Parliament and breached a duty to consult.
- •The policy introduces delays in determining risk levels and release decisions for detainees.
- •The Home Office argued the policy was consistent with statutory guidance and that no duty to consult existed.
Legal Principles
Statutory Interpretation of Policy Documents
R (JB)(Ghana) v Secretary of State for the Home Department [2022] EWCA Civ 1392 at [67]-[68]
Presumption of Liberty in Detention
R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2011] UKSC 12; [2012] 1 AC 245
Duty to Consult
R (Plantagenet Alliance Ltd) v Secretary of State for Justice & Others [2014] EWHC 1662 (Admin) at [97]-[98]
Established Practice of Consultation
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 408G-H
Conspicuous Unfairness
R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755
Voluntary Consultation
R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at [108]
Padfield Principle (Frustration of Statutory Purpose)
Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997 at 1030B-D
Gillick Competence (and application to policy)
R(A) v Secretary of State for the Home Department [2021] UKSC 37
Outcomes
Second Opinion Policy quashed.
The policy contradicts statutory guidance approved by Parliament by delaying decisions on detainee release based on available evidence, thus undermining the statutory purpose of protecting vulnerable individuals.
Duty to consult Medical Justice upheld.
An established practice of consultation on material policy developments concerning adults at risk existed, creating a legitimate expectation of consultation. The failure to consult was a breach of fairness.
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