Immigration Detention And Mental Health: Non-Independent Reports From NGOs/GPs

BRO, R (on the application of) v Secretary of State for the Home Department EWHC 2231 (Admin)

Matthew Howarth, instructed by the Government Legal Department, successfully represented the Secretary of State for the Home Department in the High Court in the case of BRO, R (on the application of) v Secretary of State for the Home Department, a complex challenge relating to immigration detention, mental health, and post-detention accommodation.

The judgment, handed down by Alan Bates (sitting as a Deputy High Court Judge) on 26 August 2025, considered multiple grounds of judicial review, with nuanced findings on Article 5 rights, accommodation duties, and the threshold for medical expert evidence under CPR 35.

Refusal of Dr Bourdillon-Schicker’s Evidence under CPR 35

A key feature of the judgment was the Court’s approach to the Claimant’s attempt to introduce medico-legal reports by Dr Bourdillon-Schicker—an application strongly contested by the Defendant.

The Court refused the Claimant’s application to admit Dr Bourdillon-Schicker as an expert under CPR 35, holding that he, as a GP, lacked the requisite specialist expertise to provide opinion evidence on whether detention had caused or was likely to cause a deterioration in the Claimant’s mental health.

The Court stressed that such an assessment must come from a suitably qualified independent expert, for example a consultant psychiatrist, and further noted that for the purposes of expert evidence under CPR 35, the appointment of a practitioner with associations to advocacy bodies (such as Medical Justice) may risk perceptions of partiality.

Importantly, the Judge confirmed that while the medico-legal reports were not admitted as expert evidence, factual material from Dr Bourdillon-Schicker and others could still be relied upon within the broader context of the case, insofar as it was available to the Secretary of State at material times and contributed to the assessment of the lawfulness of detention.

Summary of Other Judicial Findings

Permission Granted on Several Grounds: The Judge granted permission to proceed with judicial review on four principal grounds, all relating to aspects of continued immigration detention and accommodation for the claimant (BRO), including alleged breaches of Article 5 ECHR, failure to comply with detention policy for vulnerable detainees, breach of the Equality Act 2010, and delay/refusal in providing section 95 accommodation.

Conditional Bail and Delay Issues: The ruling highlights that despite grants of conditional bail and orders that suitable accommodation be provided, the Claimant remained in detention for an extended period. The Court found it strongly arguable that the Secretary of State did not act with appropriate diligence and expedition, particularly after late July 2025, in making arrangements for his release.

Complex Inter-agency Challenges: The case underscored the complexities arising from interactions between criminal justice, immigration, mental health, and social care obligations across multiple jurisdictions, including issues of licence supervision, care under the Care Act, and ongoing mental health support needs.

Refusal of Permission for Ground 6 (Article 3 ECHR)

The Court withheld permission for the Claimant to add a sixth ground, alleging a breach of Article 3 ECHR. The Judge determined that the available evidence, including all medical records and reports, fell well short of establishing inhuman or degrading treatment.

While the Claimant had experienced deterioration in mental health, there had also been periods of stabilisation and appropriate medical intervention. As such, the threshold for Article 3 was not met, and the Court declined to permit the ground to proceed on speculative grounds that further disclosure might assist.

Interim Relief and Next Steps

The Judge granted interim relief, requiring the Secretary of State to make best efforts to secure approved section 95 accommodation for BRO within Scotland by a set deadline—enabling a managed and lawful release from detention while ensuring ongoing compliance with licence and healthcare requirements.

Matthew Howarth’s role in this case demonstrates expertise in complex public law and immigration detention litigation, particularly where issues of mental health, cross-border
supervision, and multi-agency obligations arise.

This article is intended as an update for practitioners and interested readers, focusing on the legal and procedural highlights of this important administrative law decision.

The Case can be found on National Archive and Westlaw: https://caselaw.nationalarchives.gov.uk/ewhc/admin/2025/2231