Following a High Court hearing on 9 June 2026, the four lead claims brought by Wilson Solicitors challenging version 6 of the Home Office’s “good character” policy for British citizenship applications have been resolved.
In three cases (GUN, NEA and HCH), the Home Office withdrew the original refusals of British citizenship, and the court ordered it to pay our clients’ costs.
Our fourth client, CBW, challenged version 6 but has not yet applied for British citizenship. As any future application would be considered under the new version of the policy published on 30 April 2026 (version 7), his claim had become academic and was withdrawn with no order as to costs.
Background
In February 2025, the Home Office amended its good character policy to state that people who had travelled to the UK illegally and/or who had made a dangerous journey to the UK would normally have their British citizenship applications refused for an indefinite future period. The policy did not explain when that presumption might be displaced by mitigating factors and/or evidence of good character. Nor did it refer to, or provide guidance on, Article 31 of the Refugee Convention or the potential relevance of Article 8 ECHR to British citizenship applications.
CBW issued a judicial review claim in May 2025. In pre-action correspondence, the Home Office said it would publish amended guidance addressing Article 31. When that guidance was not published within the indicated timeframe, CBW amended his claim to challenge version 6 in full. He argued that version 6 was unlawful because it failed to address Articles 31 and 34 of the Refugee Convention and Article 8 ECHR; was discriminatory under Article 14 ECHR; and was irrational or otherwise unlawful on domestic public law grounds.
Our firm later lodged further judicial review claims challenging both version 6 and individual refusal decisions in respect of applications that had been refused and subsequently, reconsideration decisions maintaining the original refusal. Following disclosure, the Claimants also applied for permission to amend their claims to challenge unpublished guidance documents that were circulated to decision makers.
In January 2026, we agreed case management directions with the Home Office. These provided for permission to be granted and for the lawfulness of version 6 to be determined through lead claims, with other claims brought by our clients stayed behind them. The order also allowed people with refusal decisions to notify the Home Office’s lawyers in order to extend the judicial review time limit to three months after final orders in the lead claims.
Version 7
On 30 April 2026, the Home Office published version 7 of its good character policy. Version 7 describes the amendments as “technical clarifications”. In the lead claims, the Home Office’s unequivocal position was that there was no material difference in how versions 6 and 7 were understood or would be applied in practice by Home Office officials.
Version 7 includes an amended section on considering all circumstances in the round, titled “Considering the balance of probabilities”; a section stating that it will normally be appropriate to disregard illegal entry or arrival where this was outside the person’s control, such as for children or people under the control of traffickers; and a section addressing Article 31, confirming that those with a valid defence must not be refused citizenship on the sole basis of the illegal entry.
Decision in the lead claims
After becoming aware of version 7, we made a settlement offer that would have resolved the four lead claims, the stayed claims and cases involving clients who had relied on the permission order to extend the judicial review time limit until three months after final orders in the lead claims. The proposal would also have allowed anyone refused under version 6 to ask, free of charge, for their decision to be reconsidered under version 7. The Home Office declined to engage with the offer.
The four lead claims were fully prepared for a three-day hearing before the Divisional Court (Lewis LJ and Farbey J) from 9 to 11 June 2026. Shortly before the hearing, however, the Home Office confirmed that both the initial refusals and the reconsidered refusals had been withdrawn. Its skeleton argument also stated that CBW’s claim was academic because any British citizenship application he made would be considered under version 7.
Because many of our clients and others were awaiting the outcome of the lead claims, two clients with stayed claims agreed to be added as lead claims. Their claims were not ready for hearing, however, and the court was not prepared to add them solely so that their generic grounds challenging the policy—that is, the same grounds as the existing lead claims—could be considered. Their applications were therefore refused. The Home Secretary’s position was that the court should hear CBW’s grounds challenging version 6, either through the existing lead claims despite their having become academic, or by substituting our two stayed clients.
The four lead claims were withdrawn. The court ordered that the Home Office pay our costs in three cases, and the court made no order as to costs in CBW.
A linked claim brought by Duncan Lewis Solicitors (Alibiari), listed alongside our four lead claims, proceeded. Judgment was reserved and will be handed down later. Although there was some overlap between the grounds in CBW and Alibiari, Alibiari did not include CBW’s Refugee Convention or Article 8 grounds.
What does this mean for other people affected by version 6?
Anyone who used the 7 January 2026 order to extend the judicial review time limit until three months after final orders in the lead claims should urgently seek legal advice. Our understanding of the orders made by the court is that the three-month period began on 16 June 2026, meaning proceedings must be lodged by no later than 16 September 2026. We have asked the GLD to confirm its understanding of the orders and will update on any response we receive.
People with initial refusal decisions under version 6 should also urgently seek legal advice. At court on 9 June 2026, the Home Office’s position was that any reconsideration would be undertaken by reference to version 6. However, version 7 states that its amendments are “technical clarifications”, and the Home Office’s unequivocal position in the lead claims was that there is no material difference between versions 6 and 7 in how the policies are understood or applied by Home Office officials. Advisers should therefore be able to rely on version 7 as accurately reflecting how the Home Office will assess good character in British citizenship applications.
People refused after reconsideration should also seek urgent legal advice on whether to pursue judicial review to have their decisions withdrawn or reconsidered. Alternatively, they may consider making a fresh naturalisation application.
Amended reconsideration policy
On 15 June 2026, the Home Office published amended guidance on reconsideration requests. Previously, there was no deadline for submitting such requests. The updated guidance states: “We expect an application for reconsideration to be submitted within 6 months of the date that the decision was made.” We consider that anyone whose initial refusal was issued more than six months ago and who now wishes to seek reconsideration should submit their request as soon as possible. However, we consider fairness would require that ultimately they should have six months from 15 June 2026 to do so. The six-month period does not appear to be a strict deadline, meaning a request should still be considered where there is a reasonable explanation for submitting it more than six months after the refusal.
Our immigration team can advise on individual applications (immigration@wilsonllp.co.uk) and both our immigration and public law teams can act in judicial review claims (immigration@wilsonllp.co.uk and public@wilsonllp.co.uk).
The team working on the four lead claims is Mala Savjani, Marcela Navarrete, Catherine Hegarty and Jed Pennington. Counsel instructed are David Chirico KC, Victoria Laughton and Catherine Robinson.
Need advice on an immigration law, public law or human rights matter?
Our experienced solicitors are here to help.
Call 020 8885 7986 to speak with a member of our team.
Wilson Solicitors LLP has successfully secured British citizenship for a refugee whose naturalisation application was refused under the Home Office’s “Good Character” nationality guidance because of the way he entered the UK.
Our client, an Egyptian national, fled political persecution in Egypt and was later recognised as a refugee in the UK. Before reaching the UK, he had spent time in Greece and France and had entered the UK by passing through Ireland. Despite having been granted refugee status and subsequently indefinite leave to remain, our client’s application for British citizenship was refused. In its refusal, the Secretary of State said that he had entered the UK unlawfully and could have reasonably claimed asylum in Greece, France or Ireland prior to arriving in the UK. On that basis the Home Office considered that our client was not of “good character”.
The client initially applied for naturalisation without legal representation. When both his original application and a subsequent reconsideration request were refused, he instructed Wilson Solicitors LLP to challenge these decisions and the Secretary of State’s Good Character guidance by way of judicial review as unlawful on the basis of public law errors, breach of Articles 8 and 14 ECHR and incompatibility with the UK’s obligations under the Refugee Convention. Proceedings were issued in January 2026.
Home Office Withdraws Refusal Decisions
Shortly after proceedings were issued, the Secretary of State agreed to withdraw both the original refusal decision and the reconsideration decision maintaining that refusal. She also agreed to make a fresh decision in the client’s case and agreed to pay our client’s legal costs. In making this fresh decision, the Secretary of State agreed to take into account extensive evidence of our client’s good character and contributions to UK society submitted in the judicial review proceedings, including eight letters of support obtained by this firm.
Following this fresh reconsideration, our client was granted British citizenship.
A Compelling Example of Good Character
The outcome of this case highlights the importance of a full and holistic assessment of an applicant’s circumstances, character and contribution to the UK.
Since arriving in the UK, our client has built an impressive record of public service, volunteering and community contribution. While awaiting the outcome of his asylum claim, he undertook extensive voluntary work. Following recognition as a refugee, he volunteered at a secondary school during the Covid-19 pandemic before being offered a permanent role as department head of English as an Additional Language, helping young people and newly arrived families integrate into British life.
The Secretary of State had before her extensive evidence of our client’s good character, including eight letters of support obtained by this firm. The willingness of so many people from different walks of life to provide support for our client’s legal challenge was a powerful reflection of the impact our client has had on those around him and on the communities he serves.
Wider Significance
This case arose against the backdrop of ongoing litigation concerning the Home Office’s February 2025 amendments to its Good Character guidance. Those changes introduced a presumption that individuals who had previously entered the UK illegally would normally be refused citizenship, regardless of how much time had passed since their arrival. The wider legality and application of that policy continues to be the subject of litigation brought by our firm.
While this outcome should not be taken as indicative of how every case affected by the guidance will be resolved, it demonstrates the importance of obtaining specialist legal advice where a naturalisation application has been refused on good character grounds. It also highlights the value of ensuring that decision-makers are presented with detailed evidence concerning an applicant’s character, personal circumstances and contributions to British society.
Comment
Catherine Hegarty, an associate solicitor in Wilson’s Public Law and Human Rights team, said:
We were delighted to receive confirmation that our client has finally been granted British citizenship. He is someone who has devoted years to supporting others, both through voluntary work and in his professional role as an educator. The speed with which friends, colleagues and members of his community came forward to provide references speaks volumes about the respect in which he is held.
This case is a reminder that citizenship decisions should involve a careful and holistic assessment of an individual’s circumstances. We hope the outcome will provide encouragement to others who have received refusals under the Good Character guidance and are considering their options.”
The UK is fortunate to count our client among its newest citizens, and we are proud to have supported him in securing this outcome.
If you have received a citizenship refusal based on the Good Character guidance, or would like advice on the implications of the ongoing litigation in this area, please contact Wilson Solicitors LLP’s immigration team.
Need advice on a public law or human rights matter?
Our experienced solicitors are here to help.
Call 020 8885 7986 to speak with a member of our team.
Wilson Solicitors are acting in a judicial review challenging the Ministry of Defence’s refusal under ARAP to relocate a former member of the Afghan special forces to the UK.
Permission has been granted to bring judicial review proceedings on all grounds of the Claimant’s challenge to the Ministry of Defence’s refusal to relocate him under the Afghan Relocation and Assistance Program (ARAP). The Claimant served in the ‘Triples’, the elite Afghan special forces units specialising in counter terror operations. ARAP applications made by those who served in the Triples have been subject to a Ministry of Defence internal review after it came to light that the Ministry of Defence had refused thousands of valid applications. However, the Claimant waited over two years for the Ministry of Defence to conduct a review of his case, before the decision to refuse his relocation under ARAP was upheld. The Ministry of Defence also informed the Claimant in 2025 that his personal details were included in the Ministry of Defence’s 2022 data breach. He remains at risk in hiding in Afghanistan. The case will now proceed to a full hearing at the High Court.
Maeve Fennelly is acting for the Claimant, instructing counsel Ella Gunn, Emma Fitzsimmons and Grainne Melon of Garden Court Chambers.
We are proud that the firm’s Public Law & Human Rights department has again been ranked as a leading team its core practice areas of Administrative & Public Law and Civil Liberties & Human Rights in both the Chambers & Partners and Legal 500 directories.
We are enormously grateful to our clients, NGO partners and professionals we work with for taking the time to provide feedback. We pride ourselves on being a friendly and collaborative team and are proud of each member of our team for the contribution to the department’s success over the last year.
Chambers & Partners
In Administrative & Public Law: Traditional Claimant the team is ranked Band 2. Partners Jed Pennington and Nusrat Uddin are individually ranked.
The Chambers review notes:
“Wilson Solicitors are highly committed solicitors with excellent client-handling skills and a breadth of knowledge across different areas of public law, allowing them to spot different angles.”
“Wilson Solicitors are a very collaborative team that work together and support each other. They are able to pick up issues in complex matters very quickly and offer an excellent level of service.”
“Wilson Solicitors have an excellent grasp of complex matters and show attention to detail. They provide timely, in-depth and clear advice and creative solutions to overcome challenges.”
“The lawyers at Wilson Solicitors are hard-working and will go the extra mile for their clients. The team has a wealth of expertise and are very responsive, studious and prompt.”
In Civil Liberties & Human Rights, the team is ranked Band 3. Partners Jed Pennington and James Elliott are individually ranked.
The Chambers review notes:
“Wilson has highly committed solicitors with excellent client-handling skills and a breadth of knowledge.”
“As a team, they are exceptionally effective.”
“Wilson has a great group, who are a pleasure to work with.”
Legal 500
In Administrative and public law the team is ranked as a tier 5 firm. Jed Pennington is ranked as a Next Generation Partner, with Nusrat Uddin, James Elliott, Serena Fasso and Lizan Ghafoor individually recognised as Recommended Lawyers.
The testimonials collated by the Legal 500 research team include:
‘The public law team is dedicated and committed. Over the last few years, they have been at the forefront of challenges in key policy areas and continue to be so, with many of the leading areas being brought by them. They have expertise across the board, are collaborative, but always remember that there is a client at the heart of every case.’
‘I have had consistently excellent experiences with this legal team, particularly in the area of age dispute challenges, and have confidently referred others to them based on the strength of their service. What sets this practice apart is the depth of their expertise, their commitment to client care, and the thoroughness with which they approach each case.’
‘Strong team with an impressive record on public law cases.’
In Civil liberties and human rights the team is ranked as a tier 3 firm. Jed Pennington, Nusrat Uddin, Serena Fasso, Lizan Ghafoor and Katya Novakovic are individually recognised as Recommended Lawyers.
The testimonials collated by the Legal 500 research team include:
‘Wilson Solicitors are rightly regarded as being a powerhouse of a team, with outstanding solicitors at all levels.’
‘They are extremely well placed to work on complex and strategic litigation and for clients who are extremely vulnerable.’
‘I have not encountered a more proficient firm than Wilson Solicitors LLP. Experience, hard work, professional… what I can say more?’
‘They are diligent, efficient and creative in approach.’
‘Excellent knowledge and innovative legal solutions.’
Wilson Solicitors Public Law and Human Rights team acts in a judicial review which seeks an inquiry into events at the Manston Short-Term Holding Facility in 2022 that complies with Article 3 of the European Convention on Human Rights. The firm also acts for a number of individuals in claims for damages in relation to their unlawful detention and the conditions they experienced at Manston in 2022.
Pre-action correspondence started 2 years ago in November 2022, in January 2023 the then Home Secretary conceded that an inquiry was required, and the judicial review was issued in the High Court in May 2023. Shortly after this, a separate claim was issued by Duncan Lewis Solicitors and the claims were linked.
The High Court granted permission in December 2023 and an expedited 2-day full hearing was listed in March 2024. Shortly before this hearing, the then Home Secretary agreed to hold a statutory inquiry (under the Inquiries Act 2005) and was granted an 8-week stay to the claim so that steps could be taken to set up the inquiry.
A statutory inquiry was not set up before the General Election was announced on 23 May 2024. Following the election of the new Labour government in July 2024, the new Home Secretary decided in September 2024 not to establish a statutory inquiry and to instead proceed with a form of non-statutory inquiry.
The claimants’ core case is that the non-statutory inquiry proposed does not meet Article 3 requirements. The inquiry will need to consider the actions of four former Home Secretaries, other senior ministers and civil servants, and the numerous private contractors operating at Manston. The claimants contend that the inquiry must provide funding for legal representation for victims (who include significant numbers of women and children); powers of compulsion in relation to witnesses and documents (so that the inquiry can access all the evidence it requires without undue delay); and public hearings (so that evidence can be effectively scrutinised and factual disputes fairly resolved). The September 2024 decision was made on the basis that the inquiry would not have any of these features.
The claimants also challenged the September 2024 decision on public law grounds, for example that relevant information had not been taken into account by the Home Secretary, and for a breach of the public sector equality duty under section 149 of the Equality Act 2010.
The judicial review was re-listed to be heard over 2 days on 20-21 November 2024. At the start of the hearing, the September 2024 decision to hold a non-statutory inquiry instead of a statutory inquiry was withdrawn on behalf of the Home Secretary. The hearing of the judicial review claim was adjourned pending the retaking of a new decision by 4 December 2024.
2 years on from when Manston was emptied and pre-action correspondence requesting an Article 3-compliant inquiry, there remains no inquiry into the conditions and treatment to which detainees were subjected at Manston in 2022, to ensure that lessons are learned and not repeated. Manston continues to operate as a Short-Term Holding Facility and shortly after the events in 2022 the then government amended the Short-Term Holding Facility Rules in order to seek to legalise longer periods of detention than the 24 hours allowed for in 2022.
The full hearing of the judicial review has been adjourned to 21-22 January 2025. Wilson Solicitors counsel team are Angus McCullough KC, Shu Shin Luh and Donnchadh Greene. The solicitor team is led by partner Jed Pennington and associate Katya Novakovic.
Wilsons is so thrilled to have our Administrative and Public Law work recognised in the Times Best Law Firms 2025! A huge thank you as always to our amazing clients, our NGO partners and the other professionals we work with, as well as our peers. Massive congratulations to all of our incredible team!
The ranking notes the following highlights from recent work within our Public Law and Human Rights team, and our inter-departmental work alongside our Immigration team:
The firm’s recent work has included representing the campaigning organisation Migrants Organise and 14 individual clients in challenging the Home Office’s proposed use of the Bibby Stockholm barge to accommodate asylum seekers in Portland, Dorset. This action led to several changes in Home Office policy.
Wilsons has also been involved in a judicial review of the failure by the home secretary at the time to establish a public inquiry or Article 3 ECHR-compliant investigation into detention conditions at the Manston immigration facility in Kent. The firm is representing more than 30 clients in potential damages claims arising from their time as detainees at Manston.
Other high-profile activity has included bringing challenges on behalf of clients who were facing deportation under the previous Conservative government’s plan to remove asylum seekers to Rwanda. The firm represented two of the claimants who successfully challenged this policy in the Supreme Court.
These highlights sit alongside many less high-profile but no less important wins for our clients, of which we are equally proud. We look forward to another year of many more such successes.
We are extremely proud that the firm’s Public Law and Human Rights Department has been ranked in the Administrative and Public Law: Traditional Claimant and the Civil Liberties & Human Rights UK-wide categories in the Chambers & Partners UK Guide 2025.
The department is very grateful to its clients, NGO partners and the professionals it works with. We pride ourselves on being a collaborative team and are proud of each member of our team for the contribution they have made to the department’s success over recent years.
In Administrative and Public Law, the firm improved its ranking from last year, moving up to Band 2 from Band 3. Partners Jed Pennington, Katy Robinson and Nusrat Uddin are individually ranked.
The Chambers review notes:
“The team’s care and attention to detail are what sticks out the most from their work. They are able to offer a really holistic approach.”
“The lawyers work their cases really well and thoroughly.”
“Jed [Pennington] is terrific, keeps the show on the road and does it extremely well.”
“Katy Robinson is brilliant. She is really experienced migrant rights lawyer.”
“[Nusrat Uddin] is extremely dedicated and knowledgeable.”
In Civil Liberties and Human Rights, the firm has maintained its Band 3 position. Partners James Elliott, Jed Pennington and Katy Robinson are individually ranked.
The Chambers review notes:
“They are able to offer a holistic approach and great support. Their care and attention to detail are the most striking aspects of their work.”
“James [Elliott] is an outstanding lawyer.”
“Katy [Robinson] is a very dedicated and highly capable solicitor.”
“Jed [Pennington] is the go-to person for policy challenges and detention.”
The department was also ranked in the recently published Legal500 Guide 2025 in the Administrative and public law and Civil liberties and human rights categories.
The new Government has announced both the end of the Rwanda scheme and that it will now decide the asylum claims in the UK of individuals who were told they might be sent to Rwanda. This is welcome news but what about the detentions? Many people were deprived of their liberty on arriving in this country at the end of dangerous journey. The Court of Appeal ruled in June 2023 that the Rwanda scheme was unlawful; the Supreme Court agreed in November 2023. The Government changed the law and earlier this year the Home Office again began to detain people in readiness to send them to Rwanda. No one ever was. These detentions may well have been unlawful and the people affected entitled to compensation. The Public Law team was at the forefront of challenges to the Rwanda scheme and are experts in bringing claims for compensation against the State. If you arrived in the UK after 1 January 2022, received a ‘notice of intent’ that you might be sent to Rwanda and were detained at any point we would like to hear from you.
Please email public@wilsonllp.co.uk and we will be in touch.
Wilson Solicitors welcomes the new UK Government’s decision to scrap the plan to send some asylum seekers to Rwanda to have their asylum claims processed there.
The firm represented two of the lead claimants (ASM and RM) whose challenges to the policy went to the Court of Appeal and Supreme Court in 2023. The firm also represented a number of individuals selected for removal on the first removal flight in June 2022. Most recently, the firm represented individuals detained in late April and early May 2024 for removal following the passing in to law of the Safety of Rwanda (Asylum and Immigration) Act 2024, all of whom were subsequently released on bail.
The scrapping of the Rwanda plan is the culmination of more than two years’ work by dedicated solicitors, barristers, NGOs and other community groups. The firm pays tribute in particular to UNCHR and their pro bono legal team, whose detailed evidence proved decisive in establishing that Rwanda is not a safe country to send asylum seekers to; and to Asylum Aid who did so much to co-ordinate and collaborate in the strategic legal work in both rounds of litigation.
The firm represents a significant number of individuals who remain in the limbo of the asylum inadmissibility process. There are reportedly more than 50,000 people in this position. We hope that the new government will quickly take them out of this process and put the necessary resources in to processing their asylum claims in the UK.
Unfortunately, as explained in the firm’s recent response to the Civil Legal Aid Review, due to the long-term failure to increase pay for immigration controlled work (the firm makes a loss on any such case it takes on) we are not in a position to increase our capacity for this work. Unless urgent steps are taken to put this work on a more sustainable footing, many of the 50,000 people currently in limbo will have to navigate the asylum process without a legal representative.
Wilson Solicitors LLP acts for Mark Nelson, a car mechanic and father of five, who has been subjected to 24/7 surveillance by way of a GPS ankle tag by the Home Office for almost 22 months.
Mark challenged the Home Office’s decision to GPS tag him on the basis it is an unjustified intrusion into his privacy, under Article 8 of the European Convention on Human Rights (‘ECHR’). Mark also argued that it was unlawful to make him wear a tag which was broken for almost six months.
This was the first court case to consider the lawfulness of the Home Office’s policy of GPS tagging migrants.
As there have been no other court judgments on this policy yet, the Home Office has to date been ‘marking its own work’. The main way it is supposed to be doing this is by reviewing the necessity of GPS tagging at least every three months, as required by the Home Office’s own policy. Throughout Mark’s case, however, the Home Office failed to conduct lawful or timely reviews, leading the court to find that making Mark wear a tag amounted to a breach of his rights for over a year under Article 8 ECHR and was a public law error.
The court also agreed with Mark’s arguments that it was unlawful for the Home Office to tag him for the six months when the Home Office knew it was not working.
The court’s findings follow the recent decision by the Information Commissioner’s Office (‘the ICO’ – the UK’s data protection regulator) on the Home Office’s use of people’s data under its pilot GPS tagging scheme. The ICO issued a formal warning that ‘any future processing by the Home Office on the same basis will be in breach of data protection law and will attract enforcement action.’
However, the court found that wearing the tag at the time of the hearing was proportionate and Mark continues to be tagged. Since this is the first case assessing the proportionality of this intrusive technology, given the large number of people this issue affects and given the ongoing impact of the tag on Mark, Mark intends to apply for permission to appeal to the Court of Appeal on this point.
Mark says:
This tag is inhumane, pointless and brutal. I am proud we won on so many important points today, but I intend to keep fighting so that the Home Office can no longer subject people to this cruel and dystopian technology.
Katie Schwarzmann, Mark’s solicitor, says:
This judgment is a lesson to the Home Office that it is not above the law when it subjects people to 24/7 surveillance. It can no longer impose such intrusive forms of surveillance on people without regard for whether the technology is working or whether it is – and continues to be – absolutely necessary.
The judgement is available here. Mark is represented by Katie Schwarzmann of Wilson Solicitors LLP, Donnchadh Greene of Doughty Street Chambers and Sarah Hannett KC of Matrix Chambers. Evidence relating to the functionality of GPS tags was provided by Privacy International.
Wilson Solicitors LLP represents a number of individuals challenging the Home Office’s imposition of GPS tags on them.
In a judgment handed down on 12 January 2024 the High Court allowed a judicial review brought by the charity Medical Justice to a policy which allowed the Home Office to seek a second medical opinion in respect of vulnerable people in immigration detention when they have submitted an ‘external’ medical report – produced by Medical Justice or another independent medical professional – as to their vulnerability to harm in immigration detention. This delays consideration of the available evidence concerning the likely harm to the vulnerable person of continued detention for several weeks or more.
Medical Justice was represented by Shu Shin Luh and Laura Profumo, barristers at Doughty Street Chambers, instructed by Jed Pennington, partner in Wilson Solicitors’ Public Law and Human Rights Team.
Witness evidence was provided by Medical Justice staff Idel Hanley, Policy, Research and Parliamentary Manager, and Dr Elizabeth Clark, Clinical Advisor; Tara Wolfe, Health of the Medico-Legal Report Service at Freedom from Torture; and Dr Juliet Cohen, an independent forensic clinician and former Head of Doctors at Freedom from Torture from 2005-2021.
What is the Second Opinion Policy and what was Medical Justice’s complaint about it
The Second Opinion Policy was first introduced in June 2022 and applies whenever the Home Office receives a medico-legal report submitted by or on behalf of a person in immigration detention which addresses their vulnerability to harm in immigration detention. The policy directs Home Office decision-makers to delay consideration of the report in deciding whether the vulnerable person should remain in immigration detention whilst it seeks a second medical opinion from a Home Office contracted doctor. The process of obtaining a second opinion, even if there are no unforeseen delays, can take “up to 18 working days and significantly more calendar days” (judgment, para 55(ii)). Allowing time for consideration of the report and for a decision on it by the Home Office and for this to be communicated will likely mean vulnerable people in this process being detained for a month or longer in circumstances where prompt consideration of the external medical report – without the delay in obtaining a second medical opinion – would lead to release.
The core problem with the policy, as identified by Linden J, is that it directly contradicts the approach set out in guidance approved by Parliament pursuant to section 59 of the Immigration Act 2016, the Adults at Risk Statutory Guidance. This guidance requires Home Office officials to decide vulnerability (both whether the person is in principle vulnerable and if so which of 3 evidence levels they fall into) based on the available evidence. The evidence levels crucially determine the strength of the presumption against continued detention. The higher the evidence level, the weightier the immigration factors required before the Home Office can discharge its burden to justify continued detention. Medical Justice also argued that the guidance on how differences of opinion between the two medical opinions should be dealt with is likely to lead to the downgrading of the evidence level of risk than would be the case if the external medical report were assessed on its own terms, and therefore may result in a person remaining in detention when they would otherwise have been released in view of the assessment of their vulnerability in the external medical report.
Medical Justice’s other principal complaint was that the Second Opinion Policy was introduced without any form of consultation and that this was contrary to established practice of consulting with Medical Justice and other expert interested groups on policies and operational guidance concerning the detention and treatment of adults at risk.
What did the Court decide?
The Second Opinion Policy was unlawful because it contradicted the Adults at Risk Statutory Guidance
Linden J decided that the Second Opinion Policy contradicted the Adults at Risk Statutory Guidance, essentially because it purports to authorise Home Office officials to depart from the approach in the Statutory Guidance of assessing vulnerability based on available evidence. This meant that, following recent UK Supreme Court jurisprudence (R(A) v SSHD [2021] UKSC 37, [2021] 1 WLR 3931) the policy was unlawful:
[78] “…Perhaps the simplest way of expressing the point is that the Statutory Guidance was required by section 59 of the Immigration Act 2016 to be approved by Parliament, albeit by the negative resolution procedure, and was approved by Parliament. It therefore was not open to the Defendant to contradict or undermine it without the approval of Parliament.”
[79] “…in my view this is a case in which the Defendant has undermined the rule of law in a direct and unjustified way by issuing a policy which positively authorises or approves unlawful conduct by caseworkers in that the terms of the Second Opinion Policy require or encourage them to act contrary to the Statutory Guidance approved by Parliament…”
Unlawful failure to consult
As to consultation, Linden J accepted that Medical Justice’s evidence, supported by Freedom from Torture, demonstrated an established practice of consultation on Adults at Risk detention policies that was “so consistent as to imply clearly, unambiguously and without relevant qualification that it will be followed in the future” (para 158). This evidence was “effectively uncontradicted by evidence” from the Home Office (para 159). This meant Medical Justice had a legitimate expectation that it would be consulted in relation to the Second Opinion Policy. It was common ground that there had been no consultation, leading the judge to decide that the failure to consult Medical Justice had been unlawful:
[161] “…the key point for present purposes was that policy matters relating to adults at risk in detention were within the expertise of the Claimant and, on the evidence, the Claimant was consistently consulted in relation to material issues arising in this area, regardless of who else was.”
[162] “…To my mind the key point is that the evidence establishes a clear pattern of seeking the views of the Claimant in relation to policy proposals and changes in the area of adults at risk, the Claimant providing those views, the views being taken into account by the Defendant and a decision being taken…”
[165] “I therefore uphold Ground 3 on the basis that the Claimant had a legitimate expectation of consultation about the Second Opinion Policy, no real attempt to explain or justify the failure to consult having been put forward by the Defendant in the context of the Claim…”
Relief
The Court ordered that the Second Opinion Policy be quashed and made a declaration that the failure to consult Medical Justice had been unlawful.
What does the Court’s decision mean for people in immigration detention?
The Court’s decision means that the Home Office cannot apply the Second Opinion Policy to people currently in immigration detention and will need to be withdrawn. This will mean that vulnerable people – potentially hundreds annually – who would otherwise have been detained because of the application of the Second Opinion policy will be released where the available medical evidence and the application of the Adults at Risk Statutory Guidance requires this.
People who have had the Second Opinion Policy applied to them since it was introduced in June 2022 should seek advice on whether they have claims for unlawful detention based on the application of the unlawful policy, and any failure to decide vulnerability and whether they should remain in detention based on a medico-legal report submitted by them or on their behalf.
Is it possible for the Home Office to reintroduce the Second Opinion Policy in future?
Potentially, but it would first be required to carry out a fair consultation and it would need to seek Parliament’s approval of the policy under section 59 of the Immigration Act 2016.
Idel Hanley, Policy, Research and Parliamentary Manager at Medical Justice said:
“Downgrading important safeguards, as was done by introducing the second opinion policy, without meaningful consultation or parliamentary scrutiny, is an affront to the rule of law and risked causing serious harm to detained people.
Immigration detention is known to be extremely damaging to people’s mental health and wellbeing. Those with histories of torture, trafficking, and trauma, as many detained people have, are at particular risk of deterioration in their mental health. In requiring a second assessment by a Home Office contracted doctor, this policy by design, risks retraumatising already vulnerable people and prolonging their detention. This policy’s provision that the second assessment could be carried out purely on the basis of documents, without the Home Office doctor ever meeting the detained person, and then lead to the downgrading of medical evidence, was also problematic.
The Home Office’s attempt to undermine the weight of external medical evidence in this way is unacceptable.
As immigration detention is set to expand, this judgment is an important reminder for the Home Office to conduct meaningful consultations and act in accordance with the law.“
Sonya Sceats, Chief Executive at Freedom from Torture, said:
“We know from our specialist therapy services across the country how profoundly damaging detention is for survivors of torture. As outlined in our expert evidence, this unlawful policy risked retraumatising vulnerable people and prolonging the devastating impacts of detention. This is a stark reminder of how important protective safeguards are and it’s shameful how the Home Office downgraded them. The bottom line is survivors of torture should never be detained.”
Jed Pennington, Partner in Wilson Solicitors Public Law & Human Rights Team said:
“Fair consultation and compliance with the law made by Parliament are fundamental requirements of this country’s democratic process and the rule of law. The Home Office subverted these requirements by introducing the Second Opinion Policy without consultation and without seeking Parliament’s approval. Today’s decision by the Court should make a real difference to vulnerable people held in immigration detention.”
On Friday (8 December 2023), the Home Affairs Committee published its first report following its inquiry into human trafficking. We are pleased that this report relies upon the front-line expertise of Wilsons which provides specialist legally-aided advice in the areas of public law & human rights, family and immigration to victims of trafficking. Wilsons provided evidence to the Committee both by way of written submissions drafted by Katie Schwarzman and Danny Bayraktarova and oral evidence provided by Danny Bayraktarova to the inquiry on 21 January 2023.
The Committee’s findings are in line with Wilsons’ call for the Government to stop prioritising irregular migration issues over those of human trafficking and modern slavery, at the expense of victims and survivors.
The report also echoes the concerns raised by various organisations, including Wilsons, that children are often treated by UK authorities as perpetrators of crime rather than victims, which is contrary to the ‘non-punishment’ principle established in international law. Wilsons’ evidence also specifically fed into the Committee’s recommendations that both statutory and non-statutory First Responder Organisations (specially authorised organisations which have a duty to identify and refer potential victims of trafficking into the National Referral Mechanism) be provided with nationwide training, and in particular on child victims of trafficking.
Other Committee recommendations include that:
- the government should take further action to prevent trafficking for the purposes of labour exploitation in the UK and in corporate supply chains.
- the government should ensure that survivors of trafficking and modern slavery continue to receive long-term support after they leave the National Referral Mechanism (the statutory framework by which victims of trafficking are identified) and recommendations are made in respect of an independent review of the Recovery Needs Assessment process and the Modern Slavery Act 2015.
- unaccompanied asylum-seeking children should not be placed in hotel accommodation, where they are at risk of going missing and where appropriate support is not being provided to them.
- every child who goes missing from homes or care should be considered as a potential victim of trafficking, even if they are subsequently found safe.
- the Home Office should continue to update the Committee with its progress of finding the children who went missing from hotels until the problem is resolved.
- the Modern Slavery Act 2015 should be strengthened by enforcing fines for non-compliance with the Transparency and Supply Chains provisions and addressing systemic gaps in various seasonable visa schemes.
Wilsons currently represents numerous clients who have been exploited under the UK’s Seasonal Workers Visa Scheme and, as such, we welcome the recommendations made for increased transparency and accountability in this field.
You can read a summary of our written evidence here.