The Secretary of State for the Home Department v KE (Nigeria)

This is an appeal by the Secretary of State against the decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 7 August 2015, allowing an appeal against her decision of 18 June 2012 refusing to revoke an order made on 19 July 2011 for the Respondent’s deportation.

It gives rise to the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is “a foreign criminal who has been sentenced to a period of imprisonment of at least four years” for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights (“the ECHR”) to deport him. The Upper Tribunal decided that he does not fall within that category of foreign criminal. The Secretary of State disagrees.

By section 37(1) of the Mental Health Act 1983 (“the 1983 Act”), where a person is convicted of an offence punishable by imprisonment:

The court may only make a hospital order if it is satisfied on the evidence of two medical practitioners that the offender is suffering from a mental disorder (i.e. “any disorder or disability of the mind”: section 1(1)) which is of a nature or degree that makes it appropriate for him to be detained in a hospital for medical treatment, and such treatment is available for him; and, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, it is satisfied that a hospital order is the most suitable method of disposal (section 37(2)). A hospital order, when imposed, is for an indeterminate period. However, the responsible clinician in charge of an offender must regularly examine him and confirm that the conditions for detention are satisfied (section 20).

Under a hospital order without restriction, the power to release the individual from detention lies in the hands of clinicians. However, where such an order is coupled with a restriction order under section 41, discharge of the patient can only take place with the consent of the Secretary of State or order of the appropriate tribunal. A restriction order can only be made where, on sentence, it appears to the court that, having regard to the nature of the offence, the antecedents of the offender and his risk of committing further offences if set at large, it is necessary to make such an order for the protection of the public from serious harm (section 41(1)). No doubt because predictions about the future course of the relevant mental disorder – and, thus, about the risk posed – are difficult, restriction orders must now be made unlimited in time (section 41(1) of the 1983 Act, as amended by section 40 of the Mental Health Act 2007). An order remains in place until lifted by the Secretary of State (under section 42 of the 1983 Act) or discharged by the appropriate tribunal, i.e. in England, the First-tier Tribunal (under sections 73 or 75 of that Act). A direction by the Secretary of State or order of the tribunal releasing an offender into the community may be conditional (in which case, the offender is liable to recall) or absolute. Not only is the period of a restriction order indeterminate when imposed, it is common for orders never to be absolutely discharged because, even if an offender is conditionally discharged into the community, the risk of a recurrence of the mental disorder or its symptoms – and thus of danger to the public – remains.

The nature of a hospital order was explained by Mustill LJ in R v Birch (1990) 90 Cr App R 78 at page 85, in a passage recently approved by Lord Thomas of Cwmgiedd LCJ in R v Vowles[2015] EWCA Crim 45; [2015] EWCA Civ 56; [2015] Cr App R (S) 2 at [46]:

Therefore, although of course the nature and seriousness of the offence for which an offender is convicted may indicate that he has a mental disorder that requires treatment, in considering a hospital order, the court’s focus is forward looking. It is upon whether the most appropriate disposal for an offender who has a mental disorder is to be detained for treatment. Thus, a hospital order may be made even though there is no causal connection between the offender’s disorder and the offence(s) he has committed (R v McBride [1972] Crim LR 322). Indeed, under section 37(2), in some circumstances a magistrates’ court may impose a hospital order without any conviction.

A restriction order is similarly forward looking, and is not intended to mark the gravity of the offence or offences which have been committed. The test for such an order is whether the offender poses a future risk of serious harm to the public, which is, as Birch and Vowles made clear, a question of fact and judgment determined on all the evidence, not just by reference to past offending. The aim of a restriction order is therefore not to punish the offender, but to ensure that, where a mental condition leads to a risk to the public, an offender is detained until he can satisfy the Secretary of State or appropriate tribunal that treatment has resulted in the reduction of that risk to an appropriately low level to allow for his release on a conditional or absolute basis.

As Mustill LJ recognised in Birch, even where an offender has a mental disorder, there may still be an element of culpability which may otherwise merit punishment, e.g. where there is no connection between the mental disorder and the offence, or where the offender’s responsibility for the offence is diminished but not wholly extinguished by his mental condition. In those circumstances, where the conditions in section 37(2) are met, given that a hospital order excludes any form of punishment, the sentencing court needs to consider the appropriate disposal with particular care. As Lord Thomas said in Vowles (at [51]:

Where the criteria for both a hospital order with a restriction order and a discretionary life or other indeterminate sentence are met, in considering the most appropriate disposal, the court must give appropriate weight to those factors and to the different release regimes. In particular, in relation to future risk, for an offender subject to an indeterminate sentence of imprisonment or detention in a young offender institution, the Parole Board considers the issue in the round; whilst the focus of a hospital order with a restriction order is specifically upon the existence, or potential recurrence, of a mental disorder making detention in a hospital for treatment necessary for the protection of the public.

In addition to hospital and restriction orders, the Crown Court has the power to direct that a person sentenced to imprisonment be removed and detained in a hospital rather than a prison, if appropriate with the same special restrictions as set out in section 41 (section 45A); so it is open to the court to impose a sentence of imprisonment but direct that the offender be detained in a hospital. The Secretary of State may also, in certain defined circumstances, transfer a serving prisoner to a hospital and thereafter direct his return to prison (section 51).

There are several strands of public interest in deporting foreign criminals, which include the need to address the risk of reoffending, deterrence and the importance of building public confidence in the treatment of foreign citizens who have committed such crimes (see OH (Serbia) v Secretary of State for the Home Department[2008] EWCA Civ 694 (“OH (Serbia)”) at [15(d)] per Wilson LJ (as he then was), and Heshem Ali v Secretary of State for the Home Department[2016] UKSC 60; [2016] 1 WLR 4799 (“Ali”) at [70] per Lord Wilson JSC).

By section 3(5)(a) of the Immigration Act 1971, a person who is not a British citizen is liable to deportation if the Secretary of State deems his deportation to be conducive to the public good; and, by section 5(1), in respect of a person liable to deportation, the Secretary of State may make a deportation order requiring him to leave and prohibiting him from entering the United Kingdom. Section 5(2) gives the Secretary of State the power to revoke a deportation order “at any time”.

The exercise of those powers is governed by sections 32 and 33 of the UK Borders Act 2007 (“the 2007 Act”), which identify circumstances in which the Secretary of State is required to deport a foreign criminal. They provide as follows:

By way of elucidation:

For the purposes of section 32(2) (Condition 1), by section 38(1)(c) and (d), references to “a person who is sentenced to a period of imprisonment of at least 12 months”:

For the purposes of section 32(3)(a) (Condition 2), the Secretary of State has made a relevant order, namely the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (SI 2004 No 1910), Schedule 2 of which classifies affray as a specified offence.

For the purposes of section 32(3)(b) (Condition 2), by section 38(2)(b) of the 2007 Act, references to “a person who is sentenced to a period of imprisonment”:

For the purposes of section 33(2)(a), by section 38(4)(b), “Convention rights” has the same meaning as in the ECHR. Those rights therefore include those falling within the scope of article 8 of the ECHR, which provides that no public authority will interfere with the right to respect for private and family life except as provided by article 8(2), namely “as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. It is uncontroversial that the public interest in deporting foreign criminals generally falls within the categories involving the prevention of crime and public safety.

The exception in section 33(6)(a) applies whilst a hospital order is current.

Therefore, in summary as material to this appeal, section 32 introduced a statutory presumption that the deportation of an offender who has been sentenced to imprisonment for any specified “serious crime” or where he has been sentenced to at least 12 months’ imprisonment for any crime is conducive to the public good for the purposes of section 3(5)(a) of the 1971 Act. That presumption can only be rebutted, and automatic deportation constrained, where one of the statutory exceptions applies, including (i) where deportation would be a breach of human rights (notably those under article 8) or (ii) where the offender is the subject of certain provisions of the mental health legislation including a hospital order. However, falling within an exception merely means that the Secretary of State is not obliged to make a deportation order in respect of the offender: it does not remove her power to do so. Furthermore, although falling within an exception (e.g. where there the offender is subject to a hospital order) generally means that there is no presumption in favour of deportation, where the relevant exception is that relating to human rights, deportation must still be treated as conducive to the public good.

These statutory provisions, insofar as they relate to the balance between the public interest in deportation and the human rights of the offender and his family members, have been supplemented by both Immigration Rules and, more recently, further statutory provisions.

The relevant Rules have regularly changed. Helpfully, the history of these changes until 2012 is set out in the recent judgment of Lord Reed JSC in Ali at [15] and following. I need not repeat that history here. Suffice it to say that, until 9 July 2012 – and, therefore, at the time of challenged decision (18 June 2012) – the relevant Rules (notably paragraphs 364 and 380) indicated that the public interest in deporting foreign criminals would rarely be outweighed, save in “exceptional circumstances” where deportation would be contrary to the ECHR or the Geneva Convention relating to the Status of Refugees. They therefore acknowledged that deportation might require a proportionality assessment under article 8(2), but did not specifically address how the requirements of article 8 should be considered. Paragraph 1 of the Statement of Immigration Rules (Cm 4851) simply instructed relevant officials to carry out their duties in compliance with the provisions of the Human Rights Act 1998, which brought the ECHR directly into force here. In respect of the revocation of a deportation order, paragraph 390 of the Rules provided that an application for revocation would be considered in the light of all the circumstances, including “the interests of the applicant, including any compassionate circumstances” (paragraph 390(d)). Save for paragraph 391(ii) (which restricted the revocation of a deportation order made on the basis of conviction of an offence which was incapable of being spent to those where a refusal to revoke would be contrary to the ECHR), the Rules again did not specifically address the requirements of article 8. The only guidance to those involved in the article 8(2) proportionality balancing exercise was to be found in case law.

That position changed substantially on 9 July 2012, when, as a result of Statement of Changes HC 194, an entirely new Part 13 of the Immigration Rules was introduced, to replace the relevant Rules with new paragraphs 396-399A. The new Rules applied to all those facing deportation after 9 July 2012, regardless of when the notice of intention to deport or deportation order were made.

It is, of course, open to the Secretary of State to make a general assessment of the public interest in deporting foreign criminals, the primary responsibility for that interest, subject to Parliament, residing in her. In respect of that public interest, her view is likely to be wider and better informed than that of a court or tribunal (OH (Serbia) at [15(d)]).

With a view to clarifying the policy framework and promoting consistency, predictability and transparency in decision-making, in 2012, the Secretary of State introduced a structured approach to the consideration of proportionality in deportation cases, including a presumption that the public interest required the deportation of some categories of offender, whilst recognising that article 8 rights might constrain deportation. The policy behind the changes was set out in a Home Office document, “Statement of Intent: Family Migration” (June 2012), again helpfully summarised by Lord Reed in Ali, as follows:

That policy was given effect by the new paragraphs in the Immigration Rules, which imposed a framework informed by the length of sentence, such that those who were sentenced to less than four years’ imprisonment could avoid deportation if they could show they fell within circumstances identified in paragraph 399 (family life) or 399A (private life) which were framed in similar terms to those set out in the earlier policy document and reiterated by Lord Reed. Those exceptions included, at paragraph 399A(a), where:

For offenders who fell outside those circumstances, or who were sentenced to four years or more, paragraph 398 provided that “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”, i.e. that, contrary to the general rule that only those who could bring themselves within paragraph 399 or 399A would avoid deportation on article 8 grounds, they could show that it would be contrary to article 8 to deport them. “Exceptional circumstances” in this context was held to mean that only “very compelling reasons” would be required to outweigh the public interest in deporting such an offender (MF (Nigeria) v Secretary of State for the Home Department[2013] EWCA Civ 1192; [2014] 1 WLR 544 (“MF (Nigeria)”) at [43], per Lord Dyson MR giving the judgment of the court); in other words, deportation would only be defeated on countervailing article 8 grounds by “a very strong claim indeed” (SS (Nigeria) v Secretary of State for the Home Department[2013] EWCA Civ 550; [2014] 1 WLR 998 at [54] per Laws LJ).

Paragraphs 399 and 399A provided some indication of the sorts of matters which the Secretary of State might regard as very compelling in this context, as did the Strasbourg jurisprudence. The latter indicated that the following factors would be material: the nature and seriousness of the relevant offences, the length of time elapsed since the offences were committed and the offender’s conduct in that period, the solidity of the offender’s ties (social, cultural and family) with the host country and the country to which it is proposed to deport him, the age of the offender when he came to the host country and when he committed the offences, the nationality of other persons concerned, the offender’s family situation including factors expressing the effectiveness of a couple’s family life, whether the offender’s partner knew of the offences at the time he or she entered into the relationship, the seriousness of difficulty the partner would likely encounter in the country to which the offender is to be deported, and the best interests of any children including the seriousness of difficulty they would likely encounter in that country (see Ali at [26] and [38]).

The policy behind those 2012 rule changes has now been given further effect by statute, namely the Immigration Act 2014, which was not considered in Ali (see [2]). With effect from 28 July 2014, where any court or tribunal is considering the question whether an interference with a person’s right to respect for private and family life is justified under article 8(2) (“the public interest question”), Part 5A (sections 117A-117D) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), inserted by section 19 of the 2014 Act, applies. Like the 2012 Rules to which I have referred, these are “intended to provide a structured approach to the application of article 8 which produces in all cases a final result which is compatible with, and not in violation of, article 8” (Rhuppiah v Secretary of State for the Home Department[2016] EWCA Civ 803; [2016] 1 WLR 4203 at [45] per Sales LJ); and they provide an exclusive scheme such that there is no room for a general article 8 evaluation outside those provisions read with the Immigration Rules which supplement them (see NA (Pakistan) v Secretary of State for the Home Department[2016] EWCA Civ 662; [2017] 1 WLR 207 (“NA (Pakistan)”) at [36] per Jackson LJ). Section 117A(1) makes clear that these provisions apply to all circumstances in which the public interest question arises; and so they apply to decisions involving the revocation, as well as imposition, of a deportation order where there is an issue as to justification under article 8(2).

In considering the public interest question, section 117A(2) requires the court or tribunal to have regard to the considerations set out in section 117B; and, importantly for this appeal, in cases concerning the deportation of a foreign criminal, also to those set out in section 117C, namely:

Section 117D provides the following definitions for this part of the Act:

Section 117D(2) defines “foreign criminal” as a person who is not a British citizen and who has been convicted in the United Kingdom of an offence and who (i) has been sentenced to a period of imprisonment of at least 12 months, (ii) has been convicted of an offence that has caused serious harm or (iii) is a persistent offender.

Section 117D(4) provides:

The Immigration Rules were also amended as from 28 July 2014, by Statement of Changes HC 532, to bring paragraphs 398-399A into line with the new statutory provisions. Paragraphs 398-399A now provide:

Curiously, the Immigration Rules which particularly concern revocation of deportation orders were not amended in July 2014, to bring them into line with the statutory changes. Paragraphs 390-391A thus remain essentially as they were following the 2012 changes. They provide as follows:

The statutory provisions in sections 117A-117D are law (cf the Immigration Rules: see Ali at [17]). However, both section 117C and the relevant Immigration Rules set out policy, in the sense that they provide a general assessment of the proportionality exercise that has to be performed under article 8(2) where there is a public interest in deporting a foreign criminal but countervailing article 8 factors. The force of the assessment in section 117C is, of course, the greater because it directly reflects the will of Parliament. The statutory provisions thus provide a “particularly strong statement of public policy” (NA (Pakistan) at [22]), such that “great weight” should generally be given to it and cases in which that public interest will be outweighed, other than those specified in the statutory provisions and Rules themselves, “are likely to be a very small minority (particular in non-settled cases)” (Ali at [38]), i.e. will be rare (NA (Pakistan) at [33]).

But the required, heavily structured analysis does not eradicate all judgment on the part of the decision-maker and, in its turn, the court or tribunal on any challenge to that decision-maker’s decision. It is well-established, and indeed self-evident, that relative human rights (such as the right to respect for family and private life under article 8) can only ultimately be considered on the facts of the particular case. The structured approach towards the article 8(2) proportionality balancing exercise required by the 2002 Act and the Immigration Rules does not determine the outcome of the assessment in an individual case.

Whether an exception in paragraph 399 or 399A applies is dependent upon questions that require case-specific evaluation, such as whether in all of the circumstances it would not be reasonable for a child to leave the United Kingdom or whether in all of the circumstances there are insurmountable obstacles to family life outside the United Kingdom.

More importantly for the purposes of this appeal, where an offender has been sentenced to at least four years’ imprisonment, or otherwise falls outside the paragraph 399 and 399A exceptions, the decision-maker, court or tribunal entrusted with the task must still consider and assess whether there are “very compelling circumstances” that justify a departure from the general rule that such offenders should be deported in the public interest. That requires the decision-maker to take into account, not only that general assessment (and give it the weight appropriate to such an assessment made by Parliament), but also the facts and circumstances of the particular case which are not – indeed, cannot – be taken into account in any general assessment. As Lord Reed, giving the majority judgment, said in Ali:

Therefore, as Lord Reed emphasises, whatever the seriousness of the offences or length of sentence, the ultimate question is the same – would deportation be in breach of article 8 – but the sentence imposed affects the approach to the exercise of assessing proportionality for article 8(2) purposes. If it is at least four years’ imprisonment, any decision-maker must attach very considerable weight to the general assessment of the public interest in deporting foreign criminals, now directly adopted by Parliament in statute, under which such a sentence represents a level of offending in respect of which the public interest almost always outweighs countervailing considerations of private or family life, only being outweighed by countervailing factors which are very compelling (see Ali at [46]). Where there is a challenge to a decision involving the article 8(2) balancing exercise by a decision-maker on behalf of the Secretary of State in an individual case, as I have already described, the court or tribunal must give that general assessment substantial weight, because it is endorsed by Parliament; and it must also take into account – but no more than take into account – the application of that general assessment to the facts of the specific case by the original decision-maker (OH (Serbia) at [15(d)]). As independent judicial bodies, on hearing a challenge to an executive decision in an individual case, it is the duty of the court or tribunal to make its own findings of the relevant facts and then make its own assessment of the proportionality of the proposed deportation (Ali at [46]).

Since Ali, the 2014 Act has intervened, encapsulating the relevant Government policy in statute rather than merely Immigration Rules. However, in my view, the principles and approach expounded by Lord Reed still apply; although, in considering the appropriate weight to be given the assessment of the strength of the general public interest in the deportation of foreign offenders, any decision-maker, court or tribunal conducting the article 8(2) exercise has to bear in mind that that is now incorporated into statute, and so, even more starkly, reflects the will of Parliament.

In NA (Pakistan) at [37], Jackson LJ considered the correct approach to a case in which section 117C(6) (“very compelling circumstances”) applies:

The Respondent is a Nigerian national, born on 18 August 1980. His mother died when he was two years old, and he was brought up by his father and step-mother in Nigeria. His father then died; and, in 1990, his step-mother came to the United Kingdom to look for work. The Respondent arrived in the United Kingdom on 15 February 1992, aged 11 years, with his twin sister and step-brother, to join his step-mother. He was granted indefinite leave to remain on 30 April 1993.

Between September 1999 and November 2003, the Respondent was convicted of five offences of burglary, using threatening words or behaviour, and indecent assault. As a result of those, he was first sentenced to detention in a young offender institution, when aged about 19; and, on his release, his step-mother had lost her accommodation and moved into a hostel. He has not lived with her since.

On 23 January 2004, the Respondent was convicted of two counts of affray, both of which occurred on 19 August 2003 whilst he was on bail for the indecent assault. He took a machete, which, first, he waved at men in the hostel in which he was living; and then he went outside with the weapon where he waved it at two women who were understandably terrified. On 23 April 2004, on each count concurrently, he was sentenced to a hospital order and a restriction order without limit of time. We do not have a full transcript of the judge’s sentencing remarks – which, with any available pre-sentence reports, are always likely to be helpful to a court or tribunal considering a challenge to a decision to impose or not revoke a deportation order on grounds of disproportionality – but, from the documents that we do have, it is clear that, at the time of the affray offences, the Respondent suffered from a mental disorder and that disorder caused him to act with the knife as he did. That was the conclusion of the Upper Tribunal (see paragraph 46 of their determination, quoted at paragraph 57 below), with which I agree.

On 12 April 2007, the Respondent was served with a notice of liability to deportation; and, on 24 May 2007, with a deportation order. The Respondent appealed; and, upon reflection, the Secretary of State decided that, whilst deportation was warranted in principle, it was not appropriate at that time due to the Respondent’s mental health condition. The order was withdrawn.

On 2 October 2008, under the hospital and restriction orders, the Respondent was granted a conditional discharge into the community; and, on 7 October 2008, he was again served a notice of liability to deportation. On 10 March 2010, a deportation notice was sent to the Respondent; but it seems that it was returned undelivered. It was in any event not progressed.

During this time in the community, two things happened to the Respondent. First, he began a relationship with a woman, KJ. The Respondent and KJ have never lived together, although he sometimes stayed with her for periods of a few days or a week. KJ has two children. She and they are British nationals. The children have regular contact with their respective fathers, who live in the United Kingdom.

Second, although the dates are not clear from the evidence we have, it seems that it was during this period that the Respondent was formally diagnosed as suffering from paranoid schizophrenia. It was certainly no later. The evidence suggests that, whilst he regularly complied with his therapeutic regime, he conducted himself calmly and reasonably; but he was unreliable and, when he did not take his medication, he was prone to violence.

On 9 May 2010, the Respondent assaulted someone causing him grievous bodily harm. We do not have the details; but it seems that, as a result of the assault, he was recalled to hospital for breach of the conditions of his continuing hospital order. For the assault, he appears to have been given a suspended sentence of imprisonment to enable his treatment under the hospital order to continue.

However, on 2 June 2011, the Respondent was remanded in custody at HMP Highdown for assaulting two members of staff at the medium secure psychiatric unit where he was resident; and, on 11 July 2011, he was convicted of three counts of assault, and sentenced to three months’ imprisonment. He was released from that sentence on 15 July 2011; but immediately placed in immigration detention. It seems that he was not, at that stage, returned to hospital accommodation.

A further deportation order was signed on 19 July, and served on the Respondent on 25 July 2011. Steps were taken to obtain an emergency travel document, and removal directions were served on 11 October with removal set for 26 October 2011. The Respondent instructed solicitors, and a pre-action protocol letter was sent on 20 October 2011. On 26 October 2011, the Secretary of State having determined that the removal should go ahead, the Respondent issued judicial review proceedings submitting that deportation would be in breach of articles 3 and 8 of the ECHR; and he obtained an injunction restraining removal. The Secretary of State cancelled the removal directions, and indicated that the application for judicial review would be treated as an application to revoke the deportation order. Bail was refused.

Whilst waiting for the Secretary of State’s response to the deemed application for revocation of the deportation order, on 28 May 2012, the Respondent was transferred to a hospital, because of a deterioration in his mental health. It seems that, whilst there, his medication was changed, so that it was injected, which reduced non-compliance. He returned to immigration detention later that year. As I understand it, the medication continues to be effective. It has not been necessary for him to be admitted to hospital again since; although the Respondent is still subject to the hospital order from which he has only been conditionally released.

As I have indicated, the Secretary of State treated the judicial review of 26 October 2011 as an application to revoke the deportation order of 25 July 2011. The ultimate determination of that application has, regrettably, been much delayed.

The Secretary of State responded on 18 June 2012. In that letter, she concluded:

The Respondent’s medical condition did not approach the high threshold required to engage article 3.

With regard to KJ and her children, there was no functioning family unit of which the Respondent was part.

Given that the Respondent’s relationship with KJ only began in 2010, that the Respondent had been in detention for most of the time since then, and that KJ and her children had coped without the Respondent’s assistance in the meantime, the Respondent’s removal to Nigeria would not adversely affect the children.

Although there may be practical difficulties in KJ and her children moving to Nigeria, there was no evidence that it would be impossible or exceptionally difficult for them to do so.

There was no evidence to suggest that the Respondent could not reintegrate into life in Nigeria without undue hardship.

As a result of his medication, the state of the Respondent’s health was reasonable, and “apparently not at threat of diminishing significantly” so long as he continued his medical regime as then prescribed. That medication (or a generic variant) is available in Nigeria. There was no evidence that, if the Respondent were to return to Nigeria on his current medical regime, there would be any appreciable deterioration in his health.

In the free-standing balancing exercise that was then to be performed, given the seriousness of the Respondent’s offending, deportation would not be a disproportionate interference with the article 8 rights of the Respondent, KJ or her children.

The Respondent had an in-country right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber), which he exercised. In a determination dated 18 July 2013, the tribunal (First-tier Tribunal Judge Cooper and Mr A P Richardson JP) allowed the appeal. They found:

It would be in the best interests of the children to be with their mother in the United Kingdom.

The Respondent’s medical condition did not approach the high threshold required to engage article 3.

Furthermore, as in principle treatment and medication for the condition are available in Nigeria, article 8 would not be breached “purely on medical grounds”.

However, the tribunal accepted that the Respondent would have no family support in Nigeria; and they accepted the expert evidence of a consultant psychiatrist (Dr Pierzcheniak) that the support of his step-mother and other relatives in the United Kingdom, and their involvement with his treatment, were as important as any medical help. They accepted the evidence of Dr Pierzcheniak that the stress of managing by himself would make a relapse of the Respondent’s condition “inevitable” on removal to Nigeria.

If he were to remain in the United Kingdom, the combination of appropriate medical treatment and that support, would mean that the risk of the Respondent reoffending would reduce over time.

On the facts of this particular case, the article 8 rights of the Respondent and his family members outweighed the public interest in deporting him.

The Secretary of State sought to appeal, primarily on the basis that the tribunal had failed to approach the article 8 issue on the correct basis, namely in accordance with paragraphs 398-399A of the Immigration Rules which had been introduced in 2012 (see paragraphs 21 and following above). Permission was granted by First-tier Tribunal Judge Coates on 9 August 2013; and the appeal was allowed by Upper Tribunal Judge Freeman on 29 October 2013. He remitted the matter to the First-tier Tribunal so that, following MF (Nigeria), they could consider whether the extent to which the Respondent’s continuing psychiatric needs could not or would not be met in Nigeria amounted to the “very compelling reasons” required to outweigh the public interest in deportation.

The appeal was reheard by the First-tier Tribunal (First-tier Tribunal Judge Beach and Ms V S Street JP). By this stage, the Respondent no longer maintained a discrete article 3 claim, but rather merely included his medical condition and the problems it posed as an aspect of his article 8 claim. Article 3 has not been raised again since. Even in the light of the recent guidance given by the European Court of Human Rights in Paposhvili v Belgium (Application No 41738/10) (13 December 2016), that seems to me to be entirely appropriate. I need say nothing further about article 3.

In a determination on 5 September 2014, the tribunal allowed the Respondent’s appeal on article 8 grounds. The tribunal found as follows:

Arguably, the restriction order meant that the Respondent should be considered as having been sentenced to at least four years’ imprisonment, and they thus considered the appeal on that basis. Consequently, it would only be in “exceptional circumstances” in which the public interest in deporting the Respondent could be outweighed by other factors.

The Respondent suffered from a dissocial personality disorder, and he had had problems in the past in adhering to rules and walking away from confrontation; but he was engaging in psychology groups to assist with that.

More importantly, the Respondent had been diagnosed as suffering from paranoid schizophrenia; but, since his symptoms had been well-controlled by medication, there had been no further episodes of violence. One of the Respondent’s problems was that he believed he did not need medication. The tribunal found that, since he had been receiving injections, the risk of his not taking medication had significantly reduced, thereby significantly reducing his risk to the public that he had previously posed. However, there was no evidence that he would have access to that form of medication in Nigeria, particularly after 21 days when the Respondent would have to fund his own medication. The tribunal found that it was extremely likely that the Respondent would be left without support or effective access to medication in Nigeria. They found that his illness was such that he would be unlikely to take any medication to which he would likely have access in Nigeria, leading to a relapse in his psychiatric condition.

Even taking into account the strong public interest in favour of a foreign criminal being deported, in the light of those circumstances, they found there were exceptional circumstances which meant he should not be deported; and his deportation would be disproportionate in article 8 terms.

The Secretary of State sought to appeal again, primarily on the ground that the tribunal had failed to have proper regard to the provisions of the newly incorporated section 117C of the 2002 Act (see paragraphs 26 and following above). Permission to appeal was granted by First-tier Tribunal Judge Murray on 14 October 2014.

On 15 December 2014, Upper Tribunal Judges Eshun and O’Connor allowed the appeal, on the basis that, in determining whether deportation would be disproportionate, the First-tier Tribunal had failed properly to take into account the seriousness of the offending. In view of the lengthy procedural history, the Upper Tribunal agreed to retain the matter and themselves make the decision on appeal from the Secretary of State. However, whilst agreeing to proceed on the basis of the facts as found by the First-tier Tribunal, they asked for further submissions on the legal question of whether the Respondent had been sentenced to a period of imprisonment of at least four years for the purposes of the statutory provisions; and, if not, as to the proper approach to the application of section 117C(6) to the circumstances of this appeal.

Following a further hearing, in a determination promulgated on 7 August 2015 the Upper Tribunal (Upper Tribunal Judges Eshun and Canavan) allowed the Respondent’s appeal against the Secretary of State’s decision not to revoke the deportation order, finding as follows:

Whilst section 117D(4)(c) applied to hospital orders of a specified length, section 117D(4)(d) was restricted to indeterminate custodial sentences and did not apply to hospital orders of indeterminate length. The Respondent was thus not restricted to relying upon “exceptional circumstances”; but was able to rely upon the exceptions to deportation in paragraphs 399 and 399A.

There was insufficient evidence to show that the Respondent had a parental relationship with KJ’s children; and the Respondent and the children could maintain their relationship, such as it was, by telephone, which had been the main form of communication between them whilst the Respondent had been detained. Furthermore, the Respondent had formed a relationship with KJ at a time when he had been served with a notice of liability to deportation; and it would not be unduly harsh for the relationship to be continued by way of the telephone and occasional visits by KJ to Nigeria. Thus, the Respondent could not bring himself within the exceptions to deportation in paragraph 399(a) or (b) of the Immigration Rules.

In terms of private life, the tribunal focused on section 117C(4) (Exception 1), as reflected in paragraph 399A of the Immigration Rules. The Respondent had been lawfully resident in the United Kingdom for most of his life. He had moved to the United Kingdom when he was 11 years old, and had spent his formative years and all his adult life here: and the tribunal were satisfied that he was socially and culturally integrated into the United Kingdom. In respect of whether there would be very significant obstacles to the Respondent being able to integrate into Nigeria, they referred to the factual findings of the First-tier Tribunal (which they adopted) that without support the Respondent was unlikely to be able to access his required medication which would lead to a relapse of his condition. They then continued:

However, if wrong in respect of the availability of that exception, the tribunal went on to consider whether there were, in the Respondent’s case, “very compelling circumstances” for the purposes of section 117D(6) and paragraph 398 of the Rules, such that his deportation would be disproportionate to the breach of his right to respect for private life. They concluded that there were. The tribunal’s consideration of this issue in their determination was lengthy, but important for the purposes of this appeal.

The tribunal thus ordered the deportation order be revoked.

On 24 September 2015, Upper Tribunal Judge Canavan refused permission to appeal to this court. Gloster LJ granted permission on 5 April 2016.

In challenging the decision of the Upper Tribunal, Ms Rowlands relies upon two grounds.

As Ground 1, she submits that the tribunal erred in holding that a person who is sentenced to hospital order with restrictions of indeterminate length does not fall within section 117D(4)(d), and is therefore not deemed by that sub-section to be a person “who has been sentenced to a period of imprisonment of at least four years” for the purposes of section 117C(6) and paragraph 398(a) of the Immigration Rules. The tribunal consequently erred in finding that the specific “exception” to deportation found in section 117C(4) was available.

As Ground 2, she submits that the tribunal erred in finding that there would be very significant obstacles to the Respondent’s integration into Nigeria; and, thus, that the Respondent fell within the section 117C(4) exception to deportation. Alternatively, if that exception did not apply because Ground 1 is made good, the tribunal erred in concluding that, in the Respondent’s case, there are “very compelling circumstances” such that, although not falling within any of the statutory exceptions, his deportation would be a disproportionate interference with his article 8 rights.

So far as relevant to this ground of appeal, section 117D(4)(d) provides:

Ms Rowlands submits that a person who is subject to a hospital order is “sentenced to… detention, or ordered… to be detained”; and, when he is subject to a hospital order for an indeterminate period, he is a person who is deemed by that provision to be a person who “has been sentenced to a period of imprisonment of at least four years” for the purposes of section 117C(6), so that the public interest requires deportation unless there are countervailing factors that amount to “very compelling circumstances”. She contends that that is even more clearly so where a hospital order is accompanied by a restriction order for an indeterminate period. Mr Metzer QC submits that the tribunal were correct in holding otherwise.

Mr Metzer does not accept section 32(2) applies in this case, because he contends that an indeterminate hospital order, with or without a restriction order, is not a sentence of imprisonment “for at least 12 months”, for the same reasons as he submits that it is not a sentence of at least four years (see below). However, he accepts that the Respondent is a “foreign criminal” for the purposes of the automatic deportation provisions of sections 32-33 of the 2007 Act, because he falls within under section 32(3). Affray is a specified offence (see paragraph 15(ii) above); and, he accepts, someone sentenced to a hospital order and restriction order is a “person sentenced to a period of imprisonment”. Consequently, a deportation order could only have been properly imposed upon the Respondent if one of the criteria in section 32(6) was satisfied, notably in this case (a), if the Secretary of State had thought that an exception under section 33 applies. He contends that two section 33 exceptions did apply at the time the deportation order was made, namely Exception 1 (removal would have been in breach of the Respondent’s human rights) and Exception 5 (the Respondent was the subject of a hospital order).

This appeal concerns an application for revocation of a deportation order, on the ground that to deport the Respondent now would be a breach of his article 8 private life rights. The focus is therefore on sections 117A-117D of the 2002 Act. Mr Metzer accepts that the Respondent is also a “foreign criminal” for the purposes of section 117D(2), where there is a different definition; because he is not a British citizen and he has been convicted of at least one offence that has caused serious harm, i.e. the second affray. He does not accept that the Respondent fulfils the criteria of section 117D(2)(c)(i), again on the basis that he is not the subject to a period of imprisonment of at least 12 months.

Despite those concessions, Mr Metzer submits that, on their proper construction, “detention” and “detained” in section 117D(4)(d) are references to detention under a custodial sentence imposed by the court, and they do not extend to a hospital order, with or without a restriction order.

However, with respect to those who have evinced a different view, including not only Mr Metzer but also the Upper Tribunal Judges, in my judgment the construction of the provision advocated by Ms Rowlands is correct – and clearly so – for the following reasons.

The words of section 117(4)(d), on their plain and ordinary meaning, clearly and unambiguously include offenders who have been sentenced to a hospital order. They expressly include a person who is ordered or directed to be detained for an indeterminate period. As I have described (see paragraphs 3 and following above), a hospital order is an order for the detention of an offender in a hospital. Hospital orders are necessarily for an indeterminate period, until a clinician considers release appropriate. In the Respondent’s case, the hospital order was supported by a restriction order requiring his detention for an indeterminate time, until the Secretary of State consented to his release or the First-tier Tribunal ordered it. Even if the offender is conditionally released, as the Respondent has been, he is liable to recall: both orders run until (and authorise the offender’s detention until) his absolute discharge.

Mr Metzer submitted that this interpretation required the reading in of words after “detention” and “detained”, namely the words that appear after those words in section 117D(4)(c), “… in an institution other than a prison (including, in particular, a hospital or an institution for young offenders)”. However, it does not. “Detention” means “detention”, wherever the offender might be detained. It is Mr Metzer’s construction that requires words to be read in, namely words limiting the meaning of “detention” to exclude detention in hospital.

Nor was I impressed with the linked submission, based upon the tenet of construction expressio unius est exclusio alterius (“to express one thing is to exclude another”), that, if the legislature had intended to include detention in a hospital, it could and would have expressly said so, as it did in section 117D(4)(c). The purpose of both section 117D(4)(c) and (d) is to enlarge the definition of “period of imprisonment of a certain length of time”, which, on its face, is restricted to (i) periods in prison and (ii) periods of a certain length of time. The focus of each sub-section is entirely different. Sub-section (c) enlarges the definition by extending (i) to include periods of detention in institutions other than a prison: it is wholly unnecessary to define “period of imprisonment of a certain length of time” in terms of itself. On the other hand, sub-section (d) enlarges the definition by extending (ii) to include indeterminate sentences, wherever they are to be served. The difference in wording of (c) and (d) simply reflects that difference in focus. It does not suggest that the legislature intended to omit from the scope of section 117D(4) indeterminate sentences where the detention is to be served in a hospital.

Mr Metzer sought to rely upon section 38(2)(b) which, in terms similar to section 117D(4)(c), defines “sentenced to a period of imprisonment” in section 32(3)(b) in terms of “detention… in an institution other than a prison (including, in particular, a hospital or an institution for young offenders)”. However, those words are included there for the same purpose as they are included in section 117D(4)(c). They do not assist Mr Metzer’s cause.

The tribunal were impressed by the argument that the Respondent was sentenced to a hospital order without reference to “a certain length of time”, such that it was not possible to say that the sentence was for a period of at least four years, or indeed for less than four years but at least twelve months.

I am afraid that I found the tribunal’s analysis on this issue difficult to follow. Mr Metzer submitted that a hospital order was not “for a certain length of time” because no time was specified in the order. He contrasted such an order with a custodial sentence that had a tariff, i.e. the minimum sentence to be served. However, I consider that submission is misconceived, on several grounds.

The term “a certain length of time” appears in the initial part of section 117D(4) in the context of the definition in that Part of the 2002 Act to “a person who has been sentenced to a period of imprisonment of a certain length of time” being extended (and, indeed, restricted) in the manner which I have partly described. That part of the Act does not refer to any fixed sentence but only to sentences of periods of imprisonment of “four years or more” (section 117C(3)), or “at least four years (section 117C(6)), or for “at least 12 months” (section 117D(2)(c)(i)). As Mr Metzer accepted, the suggestion in the tribunal’s determination that “a certain length of time” meant a fixed period (see, e.g., [30] of their determination) therefore cannot be right.

I accept, of course, that the reference in section 117D(4)(d) to “an indeterminate period, provided that it may last for at least that length of time” is a reference back to “a certain length of time” in the preamble to the sub-section. Thus, where there is a reference in that part of the Act to “four years or more” or “at least four years”, an actual imposed sentence for an indeterminate period that may last at least four years is included. However, that does not assist the Respondent. Because a hospital order does not have any punitive element, it can have no minimum period representing appropriate punishment for the crime; but it is nevertheless for an indeterminate period, and one that may last four years or more.

Mr Metzer submitted that, in the context of indeterminate sentences, “period of imprisonment of a certain length of time” should be construed as a reference to the minimum period to be served by way of punishment (“the tariff”), but there is nothing in the wording of the statutory provision that warrants that construction. It would require the reading in of the word “minimum” before “period of imprisonment”, and would (e.g.) exclude from the scope of section 117C(6) those who are sentenced to indeterminate prison sentences with a tariff of less than four years irrespective of the risk that they continue to pose to the public at the end of that minimum term.

Mr Metzer submitted that, for offenders who have hospital orders imposed upon them to be placed into the same category as offenders who have sentences of imprisonment of at least four years would be contrary to the principles in the scheme, which, where there are article 8 issues, seeks to categorise criminals in accordance with the seriousness of their crimes as reflected in the length of their sentence. Hospital orders do not reflect the seriousness of crimes committed, only the fact that the offender has a mental disorder for which treatment in hospital is available and appropriate. However, although punishment is outside the Mental Health Act regime, a hospital order cannot be imposed unless the court considers that the offender is suffering from a mental disorder which warrants his forcible detention for treatment; and a restriction order can only be imposed where it is considered that the offender’s detention is necessary for the protection of the public from serious harm. One purpose of such orders (particularly restriction orders) is to prevent an offender committing further offences.

In any event, it is wrong to see the scheme as one which simply categorises those who are the subject of hospital orders with those who are sentenced to terms of lengthy terms of imprisonment. For the former, the scheme contains various checks and balances. For example, those who are subject to a hospital order fall within section 33(6) and, therefore, Exception 5 to the automatic deportation provisions of section 32 (see paragraph 14 above), so that the presumption in favour of deportation does not apply; and the fact that the offender committed the offences as a result of a mental disorder, which may be treatable, may be a significant factor in determining whether deportation would be a breach of article 8. It may, for example, be relevant to the seriousness of the offences committed for the purposes of section 117C(2); and may be relevant to whether there are “very compelling circumstances” for the purposes of section 117C(6).

For all those reasons – but overwhelmingly because, in my view, section 117D(4)(d) clearly and unambiguously includes a person sentenced to a hospital order for an indeterminate period – I consider that Ground 1 is made good.

As I have described, the tribunal held that a foreign criminal who has been sentenced to a hospital order does not fall within the statutory definition of an offender who has been sentenced to a period of imprisonment of four years or more within section 117C(3); and that the exceptions in section 117C(4) and (5) were therefore available to him. They found that he satisfied the criteria for the former, and thus the public interest did not require his deportation. They also found that his deportation would breach his article 8 private life rights, and thus ordered the revocation of the order.

However, if, as I have found it to be, their view of the law was wrong and the statutory exceptions did not apply, they also proceeded to consider whether there were very compelling circumstances for the purposes of section 117C(6) such that deportation would be a breach of article 8. They found that there were.

Ms Rowlands submitted that the tribunal erred in making this finding, by failing properly to consider whether the risk of deterioration in the Respondent’s mental health if he were to be deported to Nigeria amounted to “very compelling circumstances” that could, as a matter of law, outweigh the public interest in deporting the Respondent. She relied upon the following particular matters.

First, the tribunal found that the Respondent fell within Exception 1 in section 117C(4). That is relevant to the exercise to be performed under section 117C(6) (see paragraph 36 above). Ms Rowlands accepts that the criteria in section 117C(4)(a) and (b) are satisfied; but contends that the tribunal erred in finding that there would be “very significant obstacles to his integration” in Nigeria. In particular, she submits that they erred in focusing upon the current situation in the United Kingdom, where he has family and support services, rather than the situation as it would be in Nigeria if he were to return. She submits that there was no consideration of whether the Respondent would be able to reintegrate into Nigerian everyday life.

However, I disagree. The exercise of whether an offender would face very substantial obstacles in integrating into the country to which it is proposed to deport him requires a “… broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life” (Kamara v Secretary of State for the Home Department[2016] EWCA Civ 813; [2016] 4 WLR 152 at [14] per Sales LJ).

I have already set out how the tribunal dealt with the issue of whether there would be very significant obstacles to his integration in Nigeria (see paragraph 56(iii) above). In my view, it is unfair to suggest that they focused exclusively upon the current situation in the United Kingdom – which was, of course, relevant to another criterion (section 117C(4)(b)). In respect of integration in Nigeria, having heard the evidence, the First-tier Tribunal had found that the Respondent had not lived in Nigeria since he was a small child; he has no relatives or other form of support in Nigeria; in those circumstances, it was extremely unlikely that he would be able to support himself even with financial support from relatives in the UK; without support, he was unlikely to be able to access the required medication, which would result in his condition relapsing (see paragraph 53(iii) above). On the evidence, it was open to the tribunal to make those findings of fact; and it was open to the Upper Tribunal to adopt them. Given those findings, it was clearly open to the Upper Tribunal to conclude that there would be very significant obstacles to the Respondent’s integration in Nigeria. That was a conclusion well within the proper margin of evaluation. Indeed, that conclusion is, in my view, entirely unsurprising.

Second, Ms Rowlands relied upon the proposition that, in respect of those who are made the subject of hospital orders, deportation is the “starting point”. It is true that, as a result of sections 32 and 33 of the 2007 Act, the deportation of such individuals is deemed to be conducive to the public good; but this proposition amounts to no more than a submission that the tribunal were required to give the public interest in deporting foreign criminals, as a general proposition, great weight. From paragraphs 46 and following of their determination (quoted in paragraph 57 above), it is quite clear that the tribunal had that well in mind. The appeal had, of course, been allowed and the matter by the Upper Tribunal for redetermination on the basis that the First-tier Tribunal had failed to give the public interest appropriate weight; and therefore the Upper Tribunal’s particular care on this issue is unsurprising.

Third, Ms Rowlands relied upon section 117C(2), that the more serious the crime, the greater the public interest in deportation. The tribunal made very clear that the affrays were serious offences, in that members of the public were terrified by the Respondent’s display of the machete; but they were also entitled to consider that the fact that the Respondent committed the offences as a result of a mental illness that was now well-controlled also bore upon the seriousness of the offence.

Fourth, she relied upon the need to deter, if not the Respondent himself, other foreign nationals, from committing offences here. However, the fact that these offences were committed as a result of a mental disorder substantially diminished any argument based on deterrence.

Finally, Ms Rowlands relied upon the OASys report of 11 August 2010, which indicated there were concerns about his temper control; and that there was a medium risk of the Respondent reoffending, and a medium risk of harm to the public if he did so. However, that report is seven years old, and was prepared before the Respondent’s medication was changed to injectable which, it seems common ground, has reduced his non-compliance with the medical regime, and, with it, the risk of reoffending.

I am unimpressed by these submissions, individually or when looked at as a whole. In my view, the Upper Tribunal approached this issue properly, fully appreciating and taking into account the weight to be given to the public policy of deporting foreign nationals who offend in this country; and to the seriousness of the offences which the Respondent committed. They concluded that he satisfied the criteria for Exception 1 in section 117C(4) and, although that exception did not apply to the Respondent, this was a case in which the obstacles he would face in Nigeria were so formidable that they amounted to very compelling circumstances in terms of section 117C(6). Looking at the careful consideration given by the tribunal to the issue, as reflected in their determination, in my judgment that was an evaluation to which they were entitled to come.

Indeed, on the evidence, it is a conclusion which I consider to have been correct. Without repeating the matters which the tribunal expressed as being important, in coming to the view that the strong public interest in deporting foreign criminals who commit serious offences has been outweighed in this case, I particularly take into account the fact that the Respondent has not only fully integrated here, he has been here since he was 11 years old (he is now 37); the relevant offending resulted from his mental illness, namely paranoid schizophrenia; that illness is now controlled here, such that reoffending is unlikely; he has no relations or other support in Nigeria; without any support there, he will be unable to cope there and it is extremely likely that he will not have access to medication which will keep his paranoid schizophrenia in check; and, as a result, in a very real way, deportation would rob him of any sensible private life.

Consequently, in my view, the Upper Tribunal properly found that there were here very compelling circumstances in relation to the Respondent’s right to respect for his private life that meant that his deportation would be in breach of those rights. If that is so, Ground 2 fails; and, with it, this appeal.

For those reasons, although in my view Ground 1 has been made good, I would refuse this appeal.

I agree.

I also agree.