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

This is an appeal against the determination of the Asylum and Immigration Tribunal (“AIT”) by which the appellant’s appeal against the decision by the Secretary of State for the Home Department (“SSHD”) pursuant to section 3(5)(a) of the Immigration Act 1971 (“the 1971 Act”) to deport him to Angola (his country of origin) was dismissed. At the time of the decision to deport, the appellant was subject to an order for his admission to and detention in a hospital pursuant to section 37 and a restriction order pursuant to section 41 of the Mental Health Act 1983 (“MHA”). The principal issues that arise on this appeal are (i) whether the SSHD had jurisdiction to decide to deport the appellant while he was subject to the section 37 and section 41 orders (“the MHA issue”); and, if so, (ii) whether the appellant’s right under article 8 of the European Convention on Human Rights (“the Convention”) to respect for his private life in the UK was breached by the decision to deport him (“the Convention issue”).

The appellant was born in Angola on 5 May 1982. On 6 January 1995 when he was 12 years old, he entered the UK to join his father who had been granted indefinite leave to remain as a refugee. He was granted leave to remain as a member of his father’s family on 9 June 1997.

He has a history of mental illness. He was diagnosed as suffering from paranoid schizophrenia. He has a learning disability and an IQ of 58. Between 1998 and 2004, he was convicted of a number of offences. In 1998, he was convicted of 3 counts of robbery and sentenced to 3 years’ detention in a young offenders’ institution. On 20 July 2004, he was convicted at Wood Green Crown Court of attempted robbery and possession of a bladed article. It was for these latter offences that HH Judge Roberts imposed the orders under sections 37 and 41 of the MHA to which I have referred. The judge said that the appellant’s antecedents were “very far from being the most serious I have seen particularly in the area of violence with which I am particularly concerned”. Nevertheless, in view of the appellant’s mental illness, he decided to make hospital and restriction orders.

On 19 February 2007, the Mental Health Review Tribunal (“MHRT”) made an order pursuant to section 73(2) of the MHA directing the conditional discharge of the appellant. The conditions that it imposed included that he reside at a 24 hour staffed hostel approved by the registered medical officer (“RMO”), take such medication as was prescribed by the RMO, follow the care plan and engage with care professionals as directed by his social supervisor and RMO and submit to regular testing for illicit substance abuse. He was not in fact discharged from hospital until 8 October 2007.

Meanwhile, on 24 September 2007 the SSHD had made a decision to deport the appellant pursuant to section 3(5)(a) of the 1971 Act on the grounds that, in view of the convictions, he deemed the appellant’s deportation to be conducive to the public good.

Within a few days of the appellant being released from hospital into the hostel, he went missing for at least one night. The Secretary of State for Justice (“SSJ”) issued a warrant for his recall to hospital. The appellant learnt of this and absconded. He was discovered by chance about one month later in a stolen vehicle in which firearms were found. The appellant was not charged with any further offences. But it was on the basis of this incident (as well as the other facts in the case) that the AIT, whose determination was promulgated on 3 April 2008, held at para 83 that they believed that “the appellant is highly likely to re-offend if released back into the community”.

The appellant was recalled to the hospital on 20 December 2007 where he remains to this day. He has received fortnightly treatment by way of anti-psychotic depot injections.

He appealed to the AIT against the decision to deport him. It will be necessary to consider the AIT’s determination in more detail later in this judgment. At this stage, it is sufficient to record that the appeal was put on the basis that deportation would be in breach of the appellant’s rights under articles 3 and 8 of the Convention. As I have said, the appeal was dismissed.

The appellant applied to the High Court for a review of the AIT’s determination. On 13 June 2008, Irwin J made an order for reconsideration in which he said:

There was a first stage re-consideration hearing on 26 September 2008 before SIJ Southern who dismissed the appeal in a decision promulgated on 13 October 2008. He concluded that the AIT had taken into account all the factors identified by Irwin J in his order and that there was no error of law in its decision.

Section 37(1) of the MHA provides that where a person is convicted of an offence and the conditions mentioned in subsection (2) are satisfied, the court may by order authorise his admission to and detention in such hospital as is specified in the order. Section 37(2) provides that the conditions referred to in subsection (1) are that the court is satisfied that the offender is suffering from mental disorder and, inter alia, the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment.

Section 41 (1) provides that where a hospital order is made in respect of an offender by the Crown Court and it appears to the court that it is necessary for the protection of the public from serious harm so to do, the court may further order that the offender shall be subject to the special restrictions set out in section 41 (a “restriction order”). The special restrictions include that the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under Part II or absolutely discharged under section 42, 73, 84 or 75 of the MHA.

Section 42 provides:

Section 86 provides for the removal of a foreign national patient who is receiving treatment for mental disorder as an in-patient in a hospital in England and Wales and is detained pursuant to a hospital order under section 37. Subsection (2) provides that if it appears to the Secretary of State that proper arrangements have been made for the removal from the UK of a patient to whom section 86 applies and that it is in the interests of the patient to remove him, the Secretary of State may authorise his removal from the place where he is receiving treatment.

The submission of Mr Drabble QC in summary is that the SSHD was not entitled to make a decision to deport the appellant while he was subject to the orders made under section 37 and 41 of the MHA. He contends that the SSHD was not entitled to decide to deport the appellant until he was absolutely discharged from detention either by the SSJ under section 42(2) or the MHRT (now the First Tier Tribunal (Mental Health)) under section 73(1) of the MHA, or at least until it was clear that the appellant would be absolutely discharged within a reasonable time.

Miss Grey takes a threshold point. She submits (rightly) that the MHA issue was not raised before the AIT (either in the application for reconsideration or before SIJ Southern) and was not “obvious” in the sense explained by this court in R v Secretary of State for the Home Department, ex p Robinson [1998] QB 929. There is a good deal of force in this submission. On a strict application of Robinson, I do not consider that this court should entertain the MHA issue. The arguments advanced by Mr Drabble to which I shall come shortly were not obvious. They were not raised by Ms Smith, counsel instructed on behalf of the appellant both before the AIT at the original hearing and before SIJ Southern. Nevertheless, the issue (a pure point of law of some general importance) has been the subject of full written skeleton arguments by Mr Drabble and Miss Grey and we heard detailed oral argument on it too. In these circumstances, it seems to me that we ought to take an exceptional course and deal with it. I would not, however, wish this exceptional course to be regarded as undermining or casting any doubt on the principles stated in Robinson.

Evidence has been placed before us as to the manner in which, in practice, the SSHD exercises his powers of removal in a case involving a person detained in a hospital under the MHA. In 2006, the United Kingdom Borders Agency (“UKBA”) introduced new procedures and guidance for dealing with mentally disordered offenders who are subject to restriction orders. These require consideration of all foreign national patients for deportation before they become free from restrictions under section 41 of the MHA. The Mental Health Casework Section of the Public Protection and Mental Health Group (“PPMHG”), which was previously known as the Mental Health Unit (“MHU”), was part of the Home Office at that time. Since 1 October 2007, PPMHG has been part of the Ministry of Justice. On 1 October 2007, chapter 19 of the MHU Caseworker Manual, which is entitled “foreign nationals, repatriation and deportation”, was introduced. It included new processes to ensure that UKBA were made aware of any restricted patient who was, or might be, a foreign national. The “key points” mentioned on the first page of the document include “if [the British Immigration Agency] decide in favour of deportation, this will not take place until the patient is ready to be discharged into the community. In the interim, MHU must take the deportation decision into account in considering any leave requests by that patient”. The document also provides:

There are witness statements from Nigel Shackelford (who is Head of Policy and Practice in the PPMHG) and Nicholas Hearn (who is Deputy Director in the Criminal Casework Directorate of the UKBA). Mr Shackelford says:

It is for UKBA to obtain from the RC an opinion as to whether the patient is sufficiently fit to be discharged and therefore deported, and that any appropriate arrangements for the patient’s escort are in place. This process will be completed before a patient’s discharge from hospital is ordered under section 42 of the Mental Health Act 1983.

When UKBA are advised by the RC that the patient is fit to be discharged into the community, they will contact PPMHG to arrange conditional discharge by the Secretary of State for Justice pursuant to section 42 of the Mental Health Act 1983. The warrant of discharge will be timed to coincide with the patient’s transfer to the custody of UKBA and a special discharge warrant is used which authorises discharge subject to the single condition that the patient “shall go immediately under escort to a place of embarkation for conveyance to [the country of destination].”

Mr Hearn’s evidence is to similar effect. He says that where the responsible clinician recommends discharge or there is good reason otherwise to believe that a conditional or absolute discharge is likely, the case is passed to a caseworker to commence “initial deportation action” (para 5). The consideration process begins in section 37 and 41 cases where there is a realistic prospect of discharge within 3 to 6 months or where they are notified that a MHRT review is approaching and the person is likely to be discharged (para 6).

Mr Hearn continues:

Mr Drabble submits that the purpose of the discretion conferred by section 42(2) of the MHA is the protection of the public and, crucially, the furtherance of the best interests of the patient. The use of the section 42(2) power subject to the single condition requiring an escort to the place of embarkation frustrates the purpose of the underlying hospital order. As Mr Drabble puts it, it ensures that treatment is denied rather than secured. In short, it is an improper use of the power conferred by section 42(2) for the SSJ to discharge a patient, either conditionally or absolutely, solely in order to facilitate deportation in circumstances where that step cannot be justified clinically.

Mr Drabble submits that, if there is no practical possibility that the appellant’s condition will improve to the extent that, within a reasonable time-scale, he can be discharged absolutely, either there is no jurisdiction to deport him or it is irrational to commence and continue with the deportation process.

Miss Grey submits that the power of discharge from hospital conferred on the SSJ by section 42(2) is unfettered. It is a broad power limited only by the words “if he thinks fit”. Thus, she submits, it would be lawful for the SSJ to discharge a patient by warrant, for the purposes of enforced removal from the UK at any time. It is not necessary for him to wait for a particular stage in the patient’s recovery.

She submits that the decision of the SSJ to discharge a patient under section 42 of the MHA is legally distinct from the decision of the SSHD to deport under section 3 of the 1971 Act. The exercise of powers under the MHA are not amongst the appealable “immigration decisions” listed in section 82(2) of the Nationality, Immigration and Asylum Act 2002. There is no express restriction in the MHA on the use of powers under the 1971 Act or vice versa.

Miss Grey submits that the question of whether powers of removal under the 1971 Act can be exercised in respect of a patient who is subject to compulsory detention under section 37 of the MHA or a restriction order under section 41 was determined by the Court of Appeal in R (on the application of X) v Secretary of State for the Home Department [2001] 1 WLR 740. In that case, the applicant’s applications for leave to enter and remain in the UK were refused. Because of his mental condition, the Secretary of State made a transfer direction under section 48 of the MHA for his detention in a hospital for medical treatment. The applicant’s appeals against the refusal of his asylum application and of his application for exceptional leave to enter were dismissed. The Secretary of State then made an order for his removal to his country of origin. His application for judicial review of that decision was dismissed. It was held by this court that, notwithstanding that the Secretary of State could only exercise his powers of removal under section 86 of the MHA if it appeared to him to be in the patient’s interests and with the approval of the MHT, the use of his powers under the 1971 Act were not expressly circumscribed in relation to persons detained under the MHA.

It was submitted on behalf of the applicant that someone who is subject to the MHA regime cannot be forced to leave that regime save by the mechanisms provided by that regime. Thus a person who meets the section 86 criteria can only be removed if the section 86(2) conditions are satisfied. Schiemann LJ (who gave the judgment of the court) rejected that submission. He said at [22] that the 1971 Act and the MHA deal with different categories of persons: the mentally ill and immigrants. He continued:

Mr Drabble submits that the present case is distinguishable from X. In that case, no exercise of a statutory discretion to discharge was required. The transfer direction in question ceased to have effect on removal, because at that point in time X would have ceased to be liable to detention under the immigration legislation. On the other hand, in the present case, the only way that the hospital/restriction order can come to an end is by the use of powers under the MHA.

It may be that the decision in X does not, as a matter of strict ratio decidendi, determine this appeal. The MHA powers in play in that case (the power to give a transfer direction under section 48 and its ceasing to have effect under section 53(1)) are not the same as the powers in play in the present case (the power in the courts to make hospital and restriction orders under sections 37 and 41 and the power in the SSJ to discharge patients who are subject to restriction orders under section 42). But in my judgment the reasoning that led the court to its conclusion in X is strongly supportive of Miss Grey’s submissions. The fundamental point is that the MHA regime and the 1971 Act regime run in parallel in relation to a person who is both an immigrant and mentally ill. Thus the court rejected the submission that the SSHD cannot exercise his power to deport an immigrant under section 3 of the 1971 Act where to do so would cut across the careful provisions of section 86 of the MHA. It is true that no section 86 issue arises in the present case. But the decision in X shows the extent to which the SSHD can exercise his 1971 Act powers without regard to the careful and detailed provisions of the MHA. That is not to say that, as was recognised in X, in exercising those powers, the SSHD may disregard a potential deportee’s mental illness. The SSHD must have regard to the patient’s mental illness and any barriers to securing proper care and treatment in the country of destination.

If Mr Drabble is right, the SSJ cannot exercise the apparently untrammelled discretion conferred by section 42(2) of the MHA in order to facilitate deportation unless the patient is already suitable for an absolute discharge or will be so within a reasonable time; and the SSHD cannot exercise the power to deport where the criteria for deportation are satisfied if the discretion conferred by section 42(2) of the MHA cannot be exercised.

Routinely, a detained patient is conditionally discharged before he is granted an absolute discharge. Typical conditions are ones as to residence, the taking of medication and so on. If Mr Drabble is right, the state cannot deport an immigrant who has been convicted of a (possibly very serious) criminal offence and whose presence in the UK is judged by the SSHD not to be conducive to the public good until there is no need to impose any conditions on his discharge for his clinical well-being. This is clearly inconsistent with the decision in X. It would also mean that a patient who continues to need treatment, which he wishes to obtain in his country of origin, cannot be discharged under section 42 because he still needs the treatment. Such a conclusion makes no sense and I would not accept an interpretation of section 42(2) which has this effect unless compelled to do so. There is no need to gloss section 42(2) in the way for which Mr Drabble contends. There is no express statutory limitation on the SSJ’s discretionary power to discharge and, in my judgment, there is no warrant for holding that such a limitation exists by necessary implication. The protection for the patient lies in the fact that the power must be exercised rationally and in such a way as will not breach his Convention rights.

In particular, the SSJ must respect the patient’s rights under article 3 and 8 of the Convention. If the discharge by the SSJ of a patient for the sole purpose of his being escorted to the place of embarkation from where he will be deported will injure his mental health, the discharge is likely to violate the patient’s Convention rights. By the same token, a decision by the SSHD to deport a person who is detained in a hospital is also likely to be in breach of those rights if his deportation will injure his health. The SSJ implicitly recognises this: see the evidence to which I have referred above. Of particular importance is the fact that the Responsible Clinician is involved in the assessment of the patient’s fitness to be discharged and deported.

The timing of the decision to deport in the present case is consistent with the SSHD’s policy to which I have referred. The decision was made on 24 September 2007, only a few days before the appellant was granted a conditional discharge by the MHRT on 8 October 2007. The appeal against the decision to deport continued even after the appellant was recalled to hospital on 20 December 2007 (where he has since remained). It is apparent from the statement of Mr Hearn (para 9) that, even if the SSHD is successful in resisting this appeal, further consideration will now be given by the SSHD to the appellant’s case, given the length of time and change of circumstances since the decision to deport was made. Furthermore, even if a deportation order is eventually made, the appellant may apply for the order to be revoked. Any refusal to revoke attracts a right of appeal: see BA (Nigeria) v SSHD [2009] UKSC 7.

For the reasons that I have given, I accept the submissions of Miss Grey and would hold that the SSHD was entitled to decide to deport the appellant notwithstanding that he was still subject to orders under sections 37 and 41 of the MHA; and it was not irrational to commence and continue with the deportation process. The question whether the decision to deport was contrary to the Convention calls for separate consideration.

Mr Drabble makes two points. The first is that the AIT did not take account of the cumulative effect of the factors identified by Irwin J: see [9] above. The second is that the AIT failed properly to apply the relevant Strasbourg jurisprudence in relation to the right to respect for private life of a person who has spent all or most of his childhood and adolescence in the host country. The most recent Strasbourg decision to which our attention has been drawn is the decision of the Grand Chamber in Maslov v Austria 1638/03 [2008] ECHR 546.

I am inclined to think that SIJ Southern was right to reject the first point. But in view of the decision that I have reached on the second point, I do not need to deal with the first and I propose to say no more about it.

In Maslov, the applicant had entered Austria lawfully at the age of 6. He had committed a large number of offences when he was 14 and 15 years of age and had been sentenced to a total of 2 years 9 months’ imprisonment. The court said this:

In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are:

The Court would also clarify that the age of the person concerned can play a role when applying some of the above criteria. For instance, when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult (see, for instance, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no.193, p.19, § 44, and Radovanovic v. Austria, no. 42703/98, § 35, 22 April 2004).

In turn, when assessing the length of the applicant’s stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Minister Recommendations Rec (2001)15 and Rec (2002)4 (see paragraphs 34-35 above).

Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner, cited above, § 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner, § 58 in fine).

In short, the Court considered that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile.”

A similar approach was adopted in the Grand Chamber decision in Uner v The Netherlands (2007) 45 EHRR 14 at [54] to [58]. As Richards LJ said in JO (Uganda) and JT (Ivory Coast) v SSHD [2010] EWCA Civ 10 at [21], Maslov at [72] to ]75] underlines the importance of age in the analysis, including the age at which the offending occurred and the age at which the person came to the host country. For a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion; and this is all the more so where the person concerned committed the relevant offences as a juvenile.

The AIT dealt with the article 8 issue in considerable detail between paras 63 and 86 of their determination. They said:

They referred to the appellant’s criminal record for offences which were “prevalent and of great concern to the public” (para 70) and his mental illness. They then described his conduct in hospital and following his conditional discharge to the hostel. At para 82, they said that his behaviour when released and arguably in the period immediately preceding this indicated that he was “nothing short of a liability to the public”. At para 83, they said that the appellant was “highly likely to re-offend if released back into the community”. They concluded their consideration of the private life issue in these terms:

Despite the obvious care with which the AIT considered whether the deportation of the appellant would be a disproportionate interference with his right to respect for his private life, in my opinion their determination of this issue was flawed. The appellant had lawfully entered the UK when he was 12 years of age. He spent his adolescence and the whole of adult life here. Much of his offending was committed when he was under the age of 21. In these circumstances, very serious reasons were required to justify his deportation: see Maslov at [75].

Miss Grey does not dispute this. She points out that the AIT set out all the relevant facts, including the appellant’s age when he entered the UK, the fact that he has ties with this country and that most of his offending was committed when he was young. She submits that, in substance, at paras 66, 84 and 85, the AIT did provide the “very serious reasons” that were necessary to justify the deportation.

I do not agree. What the AIT did was to balance the appellant’s right to respect for his private life against the rights of others to be protected from the risk of his re-offending and to conclude that the former was outweighed by the latter. In performing the balancing exercise, which they found “very difficult”, they undoubtedly took into account the fact that the appellant had resided in the UK for a lengthy period and arrived here as an adolescent: see para 66. But there is nothing to indicate that they appreciated that the fact that (i) the appellant had lived in the UK since he was 12 years of age, (ii) most of his offending had been committed when he was under the age of 21 and (iii) he had no links with Angola meant that very serious reasons were required to justify the decision to deport him. I should add that the AIT are not to be criticised for not appreciating that very serious reasons were required. They did not have the benefit of [75] of Maslov: the Grand Chamber had not published their decision at the time of the AIT’s determination.

On this narrow, but important, ground I would allow this appeal and invite submissions from counsel as to the form of order that we should make.

I agree.

I also agree.