Mental Health - July 2010
Deportation and mental disorder
The Court of Appeal has clarified the position of
restricted patients who are to be dealt with under the Immigration
Act
MJ was a 28-year-old Angolan man who arrived
in the UK when he was 12 and now enjoyed indefinite leave to
remain. He suffered from a learning disability and had been
diagnosed with schizophrenia. MJ had been convicted of a number of
offences, most of which took place before he was 21, and this had
led to his been admitted to hospital under sections 37 and 41 of
the Mental Health Act 1983 (MHA).
The Home Secretary decided to deport MJ under
the Immigration Act 1971, on the grounds that due to his
convictions, deportation would be conducive to the public good. It
was believed that he was highly likely to re-offend. When MJ’s
appeal to the Asylum and Immigration Tribunal was dismissed, he
applied to the High Court for a review, and an order for
reconsideration was made. MJ was again unsuccessful, however, so he
appealed to the Court of Appeal. The principle issues in the
appeal were whether the Home Secretary could decide to deport MJ
while he remained a restricted MHA patient, and if so, whether that
decision breached MJ’s rights under Article 8 of the European
Convention on Human Rights (MJ v Home Secretary,
20 May 2010).
Section 37 of the MHA applies to a person who
has committed an imprisonable offence and has a mental disorder of
a nature or degree that warrants treatment in hospital. Section 41
applies certain restrictions where it is necessary to protect the
public from serious harm. A ‘restricted’ patient will continue to
be liable to detention until discharged under other provisions of
the MHA. Section 86 of the Act provides that a patient who is a
foreign national may be removed to his country of origin, provided
proper arrangements are in place and removal would be in his
interests. MJ argued that he could not be deported under the
provisions of the Immigration Act while he remained subject to the
MHA.
In the case of a patient in hospital, it was
the policy of the UK Border Agency not to deport him until he was
ready to be discharged into the community. The Court of Appeal
heard that in practice, the patient would be conditionally
discharged under section 42(2) of MHA, the condition being that he
transfers to the place from which he would be conveyed to his
country of origin.
The Home Secretary relied on the case of
R (X) v Home Secretary [2001], in which a patient
who had been refused leave to enter and remain in the UK was
removed to hospital under section 48 of the MHA before being made
subject to a deportation order. While the facts of that case were
different, the Court of Appeal accepted the fundamental point that
the Immigration Act regime was not circumscribed by the MHA. It was
apparent that Parliament had contemplated the provisions of the
Immigration Act when drafting the MHA - there is a reference to it
in section 86 - and had not made any express limitation on the
application of that Act.
While the Home Secretary cannot disregard
mental disorder when making a decision to deport someone, the fact
that that person is subject to the MHA will not in itself exclude a
deportation order being made under the Immigration Act. The
immigration provisions may cut across section 86 and a person may
therefore be removed on the basis that such is in the public’s
interests if not his own.
As to the Article 8 point, the Court applied
Maslov v Austria [2008] ECHR 546 and concluded
that the decision of the Asylum and Immigration Tribunal was
flawed. Not only was it necessary to consider the cumulative effect
of the factors affecting a patient’s Article 8 rights; where he has
spent all or most of his childhood and adolescence in the host
country, very serious reasons will be required to justify
expulsion. That is particularly so where the patient committed the
relevant offences as a juvenile. The tribunal had failed to
demonstrate such serious reasons in this case.
Sallie Harrington,
Associate
Weightmans LLP
The judgment in this case may be found
here.