The Home Office is proposing to change the Adults at Risk guidance in a way that will result in more vulnerable people being detained. On 30 April 2024 draft statutory Adults at Risk guidance was published and the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2024 will bring the guidance into force on 21 May 2024. On this date, I expect that the caseworker guidance on Adults at Risk in detention will also be updated.

A comparison of the old and new versions is both instructive and concerning. Removed is “The intention is that the guidance will, in conjunction with other reforms referred to in the Government’s response, lead to a reduction in the number of vulnerable people detained and a reduction in the duration of detention before removal”. Instead we have “Detention plays a key role in maintaining effective immigration control, particularly as a means to facilitate the removal of people who have no right to be in the UK but refuse to leave voluntarily” and “No group of vulnerable people within this guidance is exempt from the possibility of detention”.

The guidance also indicates that in addition to being detained in greater numbers, vulnerable people will be detained for longer. Paragraph 8 of the new guidance has the addition “A balanced approach to consideration of the evidence must be taken, which may require a reasonable period of time to obtain all the relevant information and make an assessment of all the evidence”.

Paragraph 11 provides for Home Office officials to get a “second professional opinion in cases where professional evidence has been received in relation to a person detained under immigration powers”. This provision is about undermining medical evidence provided in support of a person’s release from detention.

We have previously covered the background to the second opinions policy as well as the successful outcome of the judicial review brought by Medical Justice. It is also worth looking at this decision involving one of the Home Office’s medical advisers with a reminder from the Tribunal about the limitations of their expertise. Also remember that the authors of the Brook House Inquiry report were so concerned about one of the doctors used by the Home Office that they sent a copy of the report to the General Medical Council.

There are concerns that Home Office decision makers proceed on the assumption that findings by a second opinion doctor are right and that any difference with the independent medico-legal report means that the latter is wrong, whereas in fact there is evidence that the opposite is true.

There are also multiple, valid reasons why a second opinion report may not reach all the same findings as the original report. For example, a lack of trust may prevent full disclosure. This may result in second opinions that are superficial, incomplete or an underestimate of people’s symptoms and therefore differ from the original findings. Given that there is no process for resolving differences in professional opinion (as there would be, for example in the context of court or tribunal proceedings), the use of this process will introduce confusion rather than improve decision making.

Also removed from the guidance is a reference that was at paragraph 11 to medico legal reports for victims of torture “from reputable providers will be regarded as meeting level 3 evidence”. This has historically referred to providers such as Freedom from Torture, Helen Bamber Foundation and Medical Justice. This change means that medico-legal reports from these organisations will no longer be automatically deemed to meet the highest threshold of evidence that can be provided under the policy to show that detention is harming a person.

In new paragraph 12, the word “may” has been replaced with “should” in the context of Home Office decision makers taking into account any previous determinations by the court or tribunal on the person’s credibility. As practitioners will be aware, it is very common to encounter cases where immigration judges have raised doubts about the credibility of an account of torture, specifically because there was an absence of medical evidence. Medico-legal reports are often commissioned specifically to address such issues, yet under this guidance this evidence can be downgraded as a result of the earlier credibility finding.

Reference has been added at paragraph 16 to the new detention powers in section 12 of the Illegal Migration Act, specifically the Home Secretary’s power to determine what is considered a “reasonable period” of detention.

It seems beyond doubt that these changes will result in increased levels of harm to people held in immigration detention including further article 3 breaches. None of this should come as a surprise given the current trajectory of the government, including the poor response to the Brook House inquiry report as well as the handling and promotion of last week’s detention raids.

With thanks to Idel Hanley, Policy, Research and Parliamentary Manager at Medical Justice for her input into this article.