MJ (Angola) v Secretary of State for the Home Department

The appellant is a person with a low intelligence quotient and is suffering from paranoid schizophrenia. He is presently detained under the provisions of Section 37 and 41 of the Mental Health Act 1983. It is proposed by the Secretary of State for the Home Department that he be deported. A question arises as to in what circumstances he might be discharged from his present detention. There is a discharge power under Section 42 of the Mental Health Act.

Mr Drabble on his behalf submits that so long as he is undischarged the deportation decision is unlawful because effectively it cannot be executed. As it is unlawful, Mr Drabble would further submit that the Asylum and Immigration Appeal Tribunal possesses no jurisdiction to hear an appeal in relation to it. That jurisdiction argument will no doubt be advanced in due course.

For today’s purpose we are hearing an application by Mr Drabble for leave to serve the Secretary of State for Justice with these appeal proceedings, because he is the minister responsible for the deployment of the Section 42 power and it may be of some importance to know what his policy is in relation to its potential exercise when the patient is a person subject to deportation procedure.

Mr Barnes for the Secretary of State for the Home Department has sought to assist us today but as it seems to me has only very partial instructions from the Secretary of State for Justice. It seems to me that important practical questions might arise as to the use of the Section 42 power in a case such as this. If such a patient is to remain detained under the Mental Health Act because his health would not permit his discharge, then the length of his detention might be extended and that in turn might have effects on the merits of any deportation appeal in his case.

Mr Barnes, I should add, starkly submits that the Section 42 power is not confined by medical or health considerations at all. That is another matter to be gone into.

It seems to me that the Secretary of State for Justice should be served here. The court would be assisted by information from him as to the policy and objects as he sees them of Section 42 of the Mental Health Act in the context of a deportation case of this sort. I would therefore direct that he be served and that the treasury solicitor be informed that the court would be assisted by his presence by counsel at the hearing of the appeal which will take place in due course.

I agree.

I too agree.