(1) The MHA regime and the Immigration Act 1971 run in parallel in relation to a person who is both an immigrant and mentally ill, so the SSHD was entitled to decide to deport MJ notwithstanding that he was still subject to s37/41. (2) There is no express statutory limitation on the SSJ's power to discharge under the MHA; it can be used in order to facilitate deportation; the protection for the patient is that the power must be exercised rationally and without breaching his Convention rights. (3) For a settled migrant who has lawfully spent all or most of his childhood in the host country, especially where he committed the relevant offences as a juvenile, very serious reasons are required to justify expulsion; the AIT had not appreciated that very serious reasons were needed so the appeal was granted.
The judgment sets out in some detail the approach taken to the deportation of detained psychiatric patients.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
IMMIGRATION — Deportation — Conducive to public good — Claimant living in United Kingdom since childhood with leave to remain — Claimant committing crimes while child and young adult — Claimant suffering from mental illness and detained in hospital — Circumstances in which claimant to be discharged from hospital — Whether deportation decision lawful while claimant undischarged — Whether appeal tribunal having jurisdiction to hear appeal from decision to deport — Whether deportation interfering with claimant’s Convention right to respect for private life — Immigration Act 1971, s 3(5)(a) — Mental Health Act 1983, ss 37, 41, 42(2) — Human Rights Act 1998, Sch 1, Pt I, art 8
The Secretary of State’s apparently untrammelled discretion contained in s 42(2) of the Mental Health Act 1983 to discharge a patient detained in hospital under ss 37 and 41 of the Act in order to facilitate his or her deportation on the grounds that he had committed criminal offences was to be exercised rationally and in such a way as would not breach the patient’s Convention rights. In considering whether deportation would interfere with a patient’s Convention right to respect for his private and family life, very serious reasons were required to justify expulsion where the patient had lawfully spent a major part of his childhood or youth in the host country and had committed the relevant offences as a juvenile.
The Court of Appeal so stated allowing the appeal of MJ from the decision of the Asylum and Immigration Tribunal promulgated on 3 April 2008 to dismiss MJ’s appeal against the decision of the Secretary of State for the Home Department dated 24 September 2007 to make a deportation order against MJ pursuant to s 3(5)(a) of the Immigration Act 1971 as being conducive to the public good.
MJ, who was aged 28, had arrived in the United Kingdom from Angola at the age of 12 with his father and had been given indefinite leave to remain. He had a low intelligence quotient, suffered from paranoid schizophrenia and between 1998 and 2004, when hospital and restriction orders were made against him, he had been convicted of a number of offences. At the time of the decision to deport he was subject to those orders. He appealed to the tribunal against the decision to deport on the basis of breach of his rights under articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, scheduled to the Human Rights Act 1998.
DYSON JSC said that Mr Drabble QC, for MJ, contended that the Home Secretary had not been not entitled to make a decision to deport MJ while he was subject to the orders made under ss 37 and 41 of the 1983 Act nor to decide to deport MJ until he was absolutely discharged from detention either by the Secretary of State for Justice under s 42(2), or by the (then) Mental Health Review Tribunal under s 73(1) of the 1983 Act, or at least until it was clear that MJ would be absolutely discharged within a reasonable time. Miss Grey for the Home Secretary submitted that the Mental Health Act issue had not been raised before the tribunal and was not “obvious” in the sense explained in R v Secretary of State for the Home Department, Ex p Robinson  QB 929. It seemed to his Lordship that, in the circumstances, the court ought, without undermining or casting any doubt on the principles stated in Ex p Robinson, to take an exceptional course and deal with the issue. Mr Drabble said that it was an improper use of the power conferred upon the Secretary of State for Justice (who had been served in the proceedings) by s 42(2) to discharge a patient, either conditionally or absolutely, solely in order to facilitate deportation in circumstances where that step could not be justified clinically. Miss Grey submitted that the question, whether powers of removal under the 1971 Act could be exercised in respect of a patient who was subject to compulsory detention under s 37 or a restriction order under s 41 of the 1983 Act, had been determined by the Court of Appeal in R (X) v Secretary of State for the Home Department  1 WLR 740. In his Lordship’s judgment, the fundamental point was that the 1983 Act regime and the 1971 Act regime ran in parallel in relation to a person who was both an immigrant and mentally ill. If Mr Drabble was right, the Justice Secretary could not exercise the apparently untrammelled discretion conferred by s 42(2) in order to facilitate deportation unless the patient was already suitable for an absolute discharge or would be so within a reasonable time; and the Home Secretary could not exercise the power to deport where the criteria for deportation were satisfied if the discretion conferred by s 42(2) could not be exercised. There was no need to gloss s 42(2) in the way for which Mr Drabble contended. There was no express statutory limitation on the Justice Secretary’s discretionary power to discharge and no warrant for holding that such a limitation existed by necessary implication. The protection for the patient lay in the fact that the power must be exercised rationally and in such a way as would not breach his Convention rights.
The question whether the decision to deport was contrary to the Convention called for separate consideration. Maslov v Austria  INLR 47 underlined the importance of age in the analysis, including the age at which the offending occurred and the age at which the person had come to the host country. For a settled migrant who had lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons were required to justify expulsion; and this was all the more so where the person concerned had committed the relevant offences as a juvenile. The tribunal had balanced MJ’s right to respect for his private life against the rights of others to be protected from the risk of his re-offending and concluded that the former was outweighed by the latter. In performing the balancing exercise, the tribunal undoubtedly took into account the fact that MJ had resided in the UK for a lengthy period and arrived here as an adolescent. But there was nothing to indicate that they had appreciated the fact (i) that MJ had lived in the UK since he was 12 years of age; (ii) that most of his offending had been committed when he was under the age of 21 and (iii) that he had no links with Angola meant that very serious reasons were required to justify the decision to deport him. The tribunal had not had the benefit of Maslov v Austria. On this narrow point the appeal would be allowed.
WALLER and LEVESON LJJ agreed.
 EWCA Civ 557;  WLR (D) 132
CA: Waller LJ, Dyson JSC, Leveson LJ: 20 May 2010
Appearances: Richard Drabble QC and Abigail Smith (instructed by Wilson & Co) for MJ; Eleanor Grey and Matthew Barnes (instructed by Treasury Solicitor) for the Home Secretary.
Reported by: Carolyn Toulmin, Barrister.