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Home Office makes important concession in unlawful detention claim regarding interpretation of medico-legal reports and discloses unpublished guidance to caseworkers

Tuesday 29 September 2020

Stephanie Harrison QC and Grace Capel of the Garden Court Chambers Public Law Team were instructed by Lewis Kett and Emma Dawson of Duncan Lewis solicitors.

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The Home Office has made an important concession in an unlawful detention claim regarding the interpretation and treatment of medico-legal reports as Level 3 evidence under the ‘Adults at Risk in Immigration Detention’ (‘AAR’) policy. The Home Office has also disclosed internal guidance to caseworkers on its approach in practice to medico-legal reports.

AK, a Moroccan national who cannot be named for legal reasons, was detained under immigration powers from 26 August 2018 to 31 July 2020, when the First-tier Tribunal granted him conditional bail.

On 2 March 2020, a Consultant Psychologist instructed by AK’s solicitors provided a medico-legal report diagnosing him with Post-Traumatic Stress Disorder (‘PTSD’) and clinical Depression. He concluded that detention was detrimental to AK’s mental illness and would cause him harm. The report was sent to the Secretary of State the same day, however due to an ‘oversight’ she took no action for a period of nearly 6 weeks, forcing AK to bring these proceedings.

Instead of reviewing AK’s detention in light of the Consultant Psychiatrist’s report, the Secretary of State contacted the Immigration Removal Centre’s (‘IRC’s) Healthcare department seeking an alternative opinion. A Locum Psychiatrist at the IRC responded disagreeing with the diagnosis of PTSD but agreeing with the diagnosis of Depression. He did not comment upon whether detention was detrimental to AK’s mental health.

The Secretary of State refused to release AK. She rejected the Consultant Psychiatrist’s conclusions in favour of the IRC Locum Psychiatrist’s response and on that basis assessed AK as Level 2 (not Level 3) under the AAR policy. She defended this approach at a permission and interim relief hearing in the Administrative Court before Mercer J and on appeal to the Court of Appeal, where Singh LJ granted permission to appeal and permission to apply for judicial review on all grounds, and remitted the case back to the Administrative Court for a final judicial review hearing.

Shortly before that hearing, the Secretary of State conceded in the detailed grounds of defence that AK was unlawfully detained from the 2 March 2020, when she was sent the Consultant Psychiatrist’s report. The Secretary of State accepted that the Consultant Psychiatrist’s report was not displaced by the response of the IRC Locum Psychiatrist, and should have resulted in AK being categorized as a Level 3 Adult at Risk under the AAR policy at the outset, even if the caseworker had initially considered it necessary to consult IRC Healthcare.

The Secretary of State’s concessions and explanation for them in this claim and contained in the order and statement of reasons has important wider implications for the application of the AAR policy. First, the Secretary of State should not delay consideration of an independent medico-legal report to seek the views of IRC healthcare. Secondly, she should promptly consider the medico-legal report and review detention under the AAR policy in line with its conclusions.  Thirdly, even where conflicting information from IRC Healthcare exists, it does not ‘displace’ an independent medico-legal report for the purposes of reviewing detention under the AAR policy.

This approach is in line with the Secretary of State’s unpublished guidance to caseworkers ‘Medico-Legal Reports (MLR) – Guidance and Frequently Asked Questions’, July 2019, which the Secretary of State failed to disclose in these proceedings but disclosed separately in response to a Freedom of Information Act request made by AK’s solicitors.

The Order and Statement of Reasons can be found here.  The unpublished guidance documents and associated emails can be found here. A previous note on the proceedings in the Court of Appeal can be found here.

Should you require any further information about this case, please contact Lewis Kett or Emma Dawson of Duncan Lewis solicitors.

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