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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.

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.

View the judgment here