In a key judgment, the Court of Appeal clarified the limits of Home Office discretion in detaining vulnerable individuals under immigration powers.
THe case Medical Justice v Secretary of State for the Home Department [2025] EWCA Civ focused on whether the 'Second Opinion Policy' introduced by the Home Secretary in 2022, was consistent with Statutory Guidance and whether the policy should have been subject to prior consultation.
Medical Justice, a charity supporting immigration detainees, challenged the Home Office's Interim Guidance which allowed caseworkers to seek a second medical opinion when a detainee provided external evidence of vulnerability. The challenge was based on two grounds:
(1) Inconsistency with the Statutory Guidance issued under section 59 of the Immigration Act 2016, and
(2) A failure to consult Medical Justice before implementation.
The Statutory Guidance establishes a presumption against detaining vulnerable adults and sets out levels of evidence used to assess whether continued detention is appropriate. Medical Justice argued that the new policy caused unlawful delays and undermined that framework.
The High Court found the Second Opinion Policy unlawful for introducing delays in assessing risk. However, the Court of Appeal disagreed. The Court held that the Guidance does not require an immediate assessment, but allows a short and reasonable period for further evidence-gathering. The phrase 'available evidence' was interpreted to include evidence that can be obtained promptly, such as second opinions. The Court stressed the need to balance protection of vulnerable individuals with the public interest in ensuring genuine cases.
The Court of Appeal upheld the High Court's finding that Medical Justice had a legitimate expectation of consultation. The Court had found a consistent practice of the Home Office engaging with Medical Justice on detention policy over many years. Despite evidential limitations, the Home Office had failed to refute this history. The Court agreed that the failure to consult rendered the policy unlawful.
This ruling strikes a balance between protecting vulnerable detainees and enabling caseworkers to seek further verification before release. It also confirms that public authorities must honour legitimate expectations arising from consistent past consultation practices, especially where liberty is at stake.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
