A Government policy of seeking a second medical opinion over vulnerable people in immigration detention, risking delays to their potential release, is unlawful, a High Court judge has ruled.

Medical Justice, a charity which supports individuals detained in immigration removal centres, took legal action against the Home Office, arguing policy guidance could “prolong the detention of an adult at risk who is particularly vulnerable to harm”. 

The policy required caseworkers to seek a second opinion from a Home Office contracted professional on an external medical report or “medico-legal report” which is submitted in relation to a person in immigration detention, a judge was told.

Lawyers for Medical Justice said it was not consulted over the June 2022 guidance, which they argued would delay the determination of a person’s risk level and any decision to release them.

At a hearing in November, the charity’s legal team said the document “contradicts” and “undermines” previous guidance approved by Parliament over protections included in the 2016 Immigration Act.

The Home Office denied the so-called “second opinion policy” was unlawful and contradictory and that it had a duty to consult over it.

But in a ruling on Friday, Mr Justice Linden quashed the policy and concluded the Government could not “contradict or undermine” previous guidance “without the approval of Parliament”.

He added: “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.”

The judge said Medical Justice had a “legitimate expectation” to be consulted over the policy and that the Home Office had made “no real attempt to explain or justify the failure to consult”.

 

Medical Justice’s legal challenge was heard at the Royal Courts of Justice in London© Provided by The Irish News

The charity said the ruling meant “potentially hundreds” of vulnerable people a year, who would otherwise have been detained because of the policy, will be released where medical evidence and other immigration guidance requires it.

It said people who had the second opinion policy applied to them should seek advice over whether they have legal claims for unlawful detention. 

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.”

A Home Office spokesperson said: “The welfare and safety of people in detention is of the utmost importance.

“We are committed to ensuring detention and removal are carried out with dignity and respect.

“We are carefully considering the implications of the judgment and the impact on the very limited number of cases affected.”  By Tom Pilgrim/PA/Irish Times

Three Commonwealth law associations have denounced President William Ruto’s onslaught on the Judiciary warning the move could erode confidence in courts.

The Commonwealth Magistrates’ and Judges’ Association (CMJA), the Commonwealth Legal Education Association (CLEA) and the Commonwealth Lawyers Association (CLA) said alleged cases of corrupt judicial officials should instead be subjected to the due process of the law.

“Whilst we recognize that there should be checks and balances in the relationship between the three organs of state, the CMJA, CLA and CLEA emphasize that any process of investigation must be founded in well-established principles of procedural and other fairness and must be transparent and open and must not be motivated by political or other inappropriate considerations,” the associations said in a statement shared on Friday.

The three associations asserted that the process should be seen to be open and fair, devoid of political interference in order to uphold the Constitution.

The Associations urged the government and public authorities of Kenya to respect the rule of law and comply with orders of the courts.

Further they called on the State to “cease making public criticism and attacks on the judiciary and ensure that any process of investigation is fair and free from undue influence.”

President Ruto has in recent weeks sustained his rhetoric against judicial officers he has characterized as corrupt, accusing judges who have issued injunctions against key government initiatives of working with corrupt individuals to frustrate what he terms as public interest project. Capital News

South Africa has taken Israel to the International Court of Justice (ICJ, also known as the World Court) in The Hague claiming genocide has been committed against Palestinians during the Gaza conflict.

A charge of genocide before the court in the midst of a heated armed conflict is exceptional. Likewise, the significance of South Africa’s claim against Israel has immense cultural, diplomatic, historical, and political significance. Israel has rejected South Africa’s claim and vowed to contest the case against it. 

International court cases such as these typically run for many years before a final judgement is reached, however South Africa has also requested provisional measures – a form of international injunction – and preliminary hearings will take place in The Hague on January 11 and 12.

A decision on South Africa’s provisional measures request will most likely be made by the end of January with the potential to have a profound impact on Israel’s military campaign in Gaza.

Which laws are in question? 

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) was adopted following the 1940s holocaust by the Nazi regime, which resulted in the deaths of six million Jewish people. 

The Genocide Convention was one of the most significant responses by the then fledgling United Nations to the holocaust. It was intended to clearly define genocide, prevent future genocides, and make nation states accountable for genocide.

There are a total of 153 parties to the Genocide Convention, including Israel and South Africa, and it is widely seen as one of the pillars of the United Nations human rights system.

States are accountable for genocide before the International Court of Justice, while individuals can be charged with the crime of genocide and placed on trial at the International Criminal Court.

• killing members of the group, or causing serious bodily harm to members of the group
• deliberately inflicting on the group conditions of life calculated to bring about its physical destruction
• imposing measures to prevent births.

What is South Africa’s case about?

South Africa’s case against Israel under the Genocide Convention was commenced on December 29, 2023 following lodgement of an 84-page application instituting the proceedings.

South Africa has brought the case by relying on the principle that as a party to the Genocide Convention, it has an obligation to enforce legal rights owed to all people that genocide not be allowed. The claim could have been commenced by any other party to the convention, however, South Africa has been raising concerns about genocide in Gaza since October 30. 

The claim gives a historical context to Israel’s conduct in Palestine, recounts the Hamas terrorist attacks on October 7, and details Israel’s subsequent Gaza military operations. 

Particular attention is given to the actions and conduct of Israeli political and military leaders, especially their statements as to how Israel intended to respond to the Hamas attacks, and the extent and scale of Israel’s military operations and military objectives in Gaza.

South Africa then details Israel’s actual military conduct during the Gaza campaign and the consequences for Palestinian civilians. This conduct is linked directly back to acts of genocide as defined in the Genocide Convention.

South Africa’s court case takes two forms: a claim that Israel has committed genocide against Palestinians in Gaza, and the urgent request for provisional measures (international legal speak for expediting the process). 

South Africa has requested that the court order that Israel’s political and military leaders, and Israel’s military, immediately cease any activities that amount to an ongoing campaign of genocide against the Palestinian people. 

South Africa will need to prove, both in law and in facts, that the case is admissible, that the World Court has jurisdiction to hear this claim, and that the application is urgent, requiring orders to prevent irreparable harm.

Importantly at this stage, South Africa does not need to conclusively prove genocide has taken place. That comes at the later phase, called the Merits phase. South Africa does, however, need to demonstrate that Palestinians face irreparable harm and that, on the facts, Israel’s conduct could be considered to be acts of genocide.

Israel will no doubt robustly resist any assertion genocide is occurring and argue its political and military leaders are acting consistently with international law in response to the threat posed by Hamas. Particular attention will probably be given to Israel’s right of self-defence following the October 7 attacks. 

How do cases like these work? 

The International Court of Justice has been thrust into the middle of the Israel-Hamas conflict. However, it is not being asked to play the role of the United Nations Security Council and settle that dispute. The court’s role, as a United Nations organ, is purely to apply the Genocide Convention and international law.

It will, nevertheless, be acutely aware of the significance of its role, especially in the face of claims of an ongoing genocide. This has been reflected in how it has moved quickly to hear South Africa’s case. 

There are two potential outcomes from South Africa’s provisional measures request. The court may decline to order provisional measures. It may, for example, find it lacks jurisdiction and that South Africa’s case is inadmissible on technical legal grounds, or the facts do not support the claims made.

Or the court may uphold South Africa’s request and order provisional measures. Any provisional measures ruling against Israel would require a radical modification of Israel’s military operations in Gaza.

The court cannot, however, enforce its decisions. In 2022, for example, Russia ignored an International Court of Justice provisional measures order following its invasion of Ukraine. 

No matter what the court orders, Israel will retain its right of self-defence against Hamas. Donald Rothwell, Professor of International Law, Australian National University Source: Wire