Factual and Procedural Background
This appeal arises from a decision by Judge Linden concerning the relationship between two guidance documents issued by the Secretary of State (Appellant) regarding the treatment of vulnerable adults in immigration detention. The primary documents at issue are the Statutory Guidance issued under section 59 of the Immigration Act 2016 (dated May 2021) and the Interim Guidance issued in September 2022, which introduced a "Second Opinion Policy" requiring caseworkers to seek a second medical opinion in certain cases involving external medico-legal reports. A third, less central, guidance document known as the Caseworker Guidance supplements the Statutory Guidance.
The Respondent is a charity that facilitates medical assessments and research related to vulnerable detainees and seeks to influence policy through dialogue with the Home Office.
On 12 December 2022, the Respondent commenced judicial review proceedings challenging the Interim Guidance as unlawful on two grounds: (1) that the Second Opinion Policy conflicted with the Statutory Guidance and undermined the purpose of section 59 of the 2016 Act by causing unacceptable delays in vulnerability assessments; and (2) that the Secretary of State failed to consult the Respondent, breaching a common law duty.
On 12 January 2024, Judge Linden upheld the Respondent's claims, quashing the Second Opinion Policy. The Secretary of State obtained permission to appeal. Subsequent to Linden J's judgment, the Secretary of State consulted on and implemented revised Statutory Guidance in May 2024, which incorporated a process for second medical opinions. The appeal was not dismissed as academic and was heard on both grounds.
This judgment primarily addresses the first ground of appeal concerning the alleged inconsistency between the Second Opinion Policy and the Statutory Guidance. The second ground, relating to consultation, is dealt with in a separate judgment by Judge Dingemans with which this court agrees.
Legal Issues Presented
- Whether the Interim Guidance’s Second Opinion Policy is inconsistent with the Statutory Guidance issued under section 59 of the Immigration Act 2016, specifically whether the policy unlawfully delays decisions on the detention or continued detention of vulnerable adults by requiring a second medical opinion before making such decisions.
- Whether the Secretary of State was under a common law duty to consult the Respondent prior to introducing the Second Opinion Policy, and if so, whether failure to do so rendered the policy unlawful.
Arguments of the Parties
Appellant's Arguments
- The High Court erred in law by interpreting the Statutory Guidance as excluding from the "available evidence" any second opinion evidence obtained through the dedicated system established by the Second Opinion Policy.
- The phrase "available evidence" in the Statutory Guidance includes evidence that is obtainable within reasonable time limits, such as the second opinion evidence, and therefore the policy does not contradict the Guidance.
- The Statutory Guidance does not specify a timeframe within which the assessment must be carried out, allowing for a reasonable postponement to obtain further evidence.
- The Second Opinion Policy provides short timescales for obtaining the second opinion and requires proceeding on the original evidence if those timescales are missed.
- On the consultation issue, the Secretary of State contended there was no established practice of consultation giving rise to a legitimate expectation and that any engagement with the Respondent was ad hoc and not legally binding.
Respondent's Arguments
- The Second Opinion Policy contradicts the Statutory Guidance by introducing unacceptable delays in assessing vulnerability and deciding on detention, undermining the statutory purpose to protect vulnerable adults.
- The Statutory Guidance requires decisions to be made promptly on the basis of the evidence available at the time the issue arises, without delay for further inquiries.
- The Secretary of State owed a common law duty to consult the Respondent based on an established practice of consultation over many years, creating a legitimate expectation of consultation on material policy developments.
- The failure to consult before introducing the Second Opinion Policy was unlawful and justified quashing the policy.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 |
The state must justify detention, with greater justification required for vulnerable individuals. |
Used to establish the principle that detention of vulnerable adults requires strong justification and that the Statutory Guidance reflects this principle. |
| Henderson v Foxworth Investments Limited [2014] UKSC 41 |
Appellate courts may only overturn findings of fact in limited circumstances. |
Applied in reviewing Linden J’s factual finding on the existence of an established practice of consultation. |
| R (MP) v Secretary of State for Health and Social Care [2020] EWCA Civ 1634 |
Legitimate expectation of consultation may arise from established practices. |
Supported the legal test and application relating to the duty to consult the Respondent. |
| R v North and East Division Health Authority, ex parte Coughlan [2001] QB 213 |
Proper consultation requires consultation at a formative stage with sufficient information and time. |
Referenced in relation to the consultation duty and procedural fairness. |
| Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 |
Established practice of consultation can give rise to a legitimate expectation enforceable by courts. |
Guided the assessment of whether the Respondent had a legitimate expectation of consultation. |
| R(Bapio) v Secretary of State for the Home Department [2007] EWCA Civ 1139 |
High threshold for finding established practice creating legitimate expectation. |
Informed the court’s approach to the evidence and the high bar for consultation claims. |
| Royal Bank of Scotland v Carlyle [2015] UKSC 13 |
Appellate courts should not overturn factual findings simply because they might have reached a different conclusion. |
Supported the refusal to overturn Linden J’s finding on consultation practice. |
| Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 |
Decision-makers must take into account all relevant evidence available to them before making a decision. |
Referenced regarding the interpretation of "available evidence" in the Statutory Guidance. |
Court's Reasoning and Analysis
The court first analysed the language and purpose of the Statutory Guidance under section 59 of the Immigration Act 2016. The Guidance requires that decisions about detention of vulnerable adults be made "on the basis of the available evidence," but does not specify a strict timeframe for making such decisions.
Judge Linden had held that the assessment must be made forthwith upon receipt of evidence, and that the Second Opinion Policy unlawfully delayed this process. However, the court here found that the phrase "available evidence" naturally includes evidence that the decision-maker has or can reasonably obtain, allowing for a short, reasonable postponement to gather further information.
The court balanced the competing public interests: the need to avoid detaining vulnerable persons unnecessarily against the public interest in ensuring informed and reliable decision-making, including the verification of medical evidence which may sometimes be exaggerated or false.
It was held that the Statutory Guidance implicitly permits a short, reasonable delay to obtain further evidence, such as a second medical opinion, provided that the delay is not excessive. The Interim Guidance’s Second Opinion Policy, which sets relatively short deadlines for obtaining second opinions and requires proceeding on original evidence if delays occur, is consistent with this interpretation.
On the consultation issue, the court carefully reviewed the factual findings of Linden J, who found that the Respondent had a legitimate expectation of consultation based on an established practice of consultation over many years. The court applied established appellate principles, including a high threshold for overturning factual findings, and found no error in Linden J’s assessment of the evidence. The Respondent’s evidence, despite some weaknesses, was sufficient to establish the existence of an established practice giving rise to legitimate expectation.
Accordingly, the court dismissed the Secretary of State’s appeal on the consultation ground.
Holding and Implications
The court ALLOWED the Secretary of State’s appeal on the first ground, holding that the Interim Guidance’s Second Opinion Policy is not inconsistent with the Statutory Guidance. The policy allows for a reasonable and short postponement to obtain further evidence before making detention decisions regarding vulnerable adults.
However, the court DISMISSED the appeal on the second ground, affirming that there was a legitimate expectation of consultation owed to the Respondent, which was breached by the failure to consult on the Interim Guidance, rendering that aspect unlawful.
The direct effect is that the Second Opinion Policy as originally introduced is lawful in principle with respect to timing of assessments, but the procedural failure to consult remains a valid ground for challenge. No new precedent was established beyond the application of existing legal principles to the facts of this case.