Home secretary Priti Patel overrode legal advice in asylum cases, adding to record costs

Priti Patel has repeatedly overridden Home Office legal advice on immigration and asylum cases, adding to record costs for the taxpayer, The Independent can reveal.

The department spent £35.2m on legal bills for lost cases and paid out a further £9.3m to people wrongly held in immigration detention in 2020-21.

The figures stand at their highest level since the Conservatives came to power, having rocketed from £17.1m and £2.2m respectively in five years.

Home Office sources told The Independent that Ms Patel and other Home Office ministers had rejected legal advice in individual cases on numerous occasions.

Legal experts had shown clear instances where “immediately settling cases offered best value to the taxpayer, and set best precedent for presenting future cases to the courts”, a Home Office source said.

The revelation comes as the government prepares to spend an undisclosed amount on sending asylum seekers to Rwanda, following a £120m up-front payment for the deal, and follows an official warning from the Home Office’s top civil servant, Matthew Rycroft, who said that the department was “uncertain” whether the scheme offered “value for money”.

According to Home Office sources, lawyers acting for the government had clearly advised when the department was likely to lose an asylum case in several instances. Such advice has been “overridden on several occasions”, they added.

The overriding of advice by the home secretary came late at night, the Home Office sources said, with clear expectations of a swift response.

One former official said Ms Patel would become “fixated on individual cases”, adding that she “regarded the need for legal processes or adhering to protocols as an inconvenience”.

Interventions by Ms Patel and her ministers had slowed down cases, wasted taxpayers’ money and resulted in more court decisions against the government, they added.

The claims came as figures released by the Home Office in its annual report showed a sharp increase in adverse legal costs, which are incurred when cases are not found in the government’s favour.

Asylum and immigration decisions are made in the home secretary’s name, but the vast majority are delegated to officials, working from detailed guidance set out by the government according to its policies and the law.

Civil servants and lawyers can choose to alert Ms Patel to cases that are particularly sensitive or high-profile, but sources say it is unusual for ministers to intervene themselves.

The home secretary is entitled to override legal advice and order cases to proceed even if it is considered likely that the Home Office will lose in court.

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But the move is considered “unwise” because it can incur significant extra costs, along with larger compensation payments if claimants win.

A watchdog’s inspection into Home Office litigation costs from 2017 warned of “substantial” sums being “paid out to settle claims, and in compensation when cases are lost”. 

The immigration inspectorate said that lessons must be learned from lost cases, saying: “There are also risks to the Home Office’s reputation and functioning if claims are handled poorly and result in adverse judgements.”

This was further confirmed by sources, who warned that interventions that are made against legal advice “may ultimately end up costing the Home Office a lot of pain and money” while raising questions about the use of taxpayers’ cash as well as legal propriety.

They said political interventions also risk generating more legal challenges, if Home Office decision-making is seen as irrational or inconsistent between individual cases.

According to sources, legal advice was rejected in both directions, with ministers deciding not only to proceed with cases they were likely to lose, but to concede where there was a prospect of success.

Home Office documents show that compensation payments for wrongful detention can be as large as £400,000 in individual cases, while adverse legal costs can run to half a million pounds.

The Home Office has lost a succession of high-profile cases in recent months, including an Isis bride’s challenge over the deprivation of her British citizenship. The woman concerned cannot be identified for legal reasons.

Home Office lawyers have been summoned to appear before the High Court later this month over an alleged breach of the home secretary’s “duty of candour”. The hearing was triggered by the Home Office’s admission that it had an unlawful secret policy of seizing phones from migrants arriving on small boats.

Judges said a legal “error”, by which officials wrongly assumed it was a crime for asylum seekers to cross the Channel in dinghies, had originated within the department and had not been explained.

A Home Office spokesperson said: “It is right and proper for the home secretary and ministers to take an interest, be aware, and have an involvement in the day-to-day operations of her department. Running a government department responsible for immigration, crime and national security is unsurprisingly not a nine-to-five job.

“However, many of these claims are inaccurate. We always strive to deliver the best value for money, and we operate duty systems to ensure any requests out of standard working hours are compensated fairly and distributed evenly.”