SSHD v KE (Nigeria)  EWCA Civ 1382,  MHLO 29
"This is an appeal [which] 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 to deport him."
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KE (Nigeria) v Secretary of State for the Home Department
McFarlane, Sharp, Hickinbottom LJJ2017 July 27; Sept 19
Immigration— Deportation— Conducive to public good— Foreign offender sentenced to hospital order with restrictions following convictions for multiple offences— Whether offender “sentenced to a period of imprisonment of at least four years”— Whether “sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period”— Mental Health Act 1983 (c 20), ss 37, 41 — Nationality, Immigration and Asylum Act 2002 (c 41), ss 117C(6), 117D(4)(d) (as inserted by Immigration Act 2014 (c 22), s 19)
The offender, a Nigerian national who suffered from a mental disorder, was convicted of serious offences of affray and sentenced to a hospital order under section 37 of the Mental Health Act 1983 with restrictions under section 41 of the same Act. After the offender committed further offences while on conditional discharge in the community and on his recall to hospital, the Secretary of State made a deportation order against him which she later refused to revoke. Section 117C(6) of the Nationality, Immigration and Asylum Act 2002 provided that the public interest required the deportation of a foreign criminal who had been “sentenced to a period of imprisonment of at least four years” unless there were are very compelling circumstances, over and above those described in section 117C(4) and (5). Section 117D(4)(d) provided that references to a person who had been sentenced to a period of imprisonment of a certain length of time included a person who was “sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period”, provided that it might last for at least that length of time. The Upper Tribunal allowed the offender’s appeal against the Secretary of State’s refusal to revoke the deportation order, holding that the offender did not fall within section 117C(6); that, in any event, there were very compelling circumstances over and above those described in section 117C(4) which meant that his deportation would breach his right to respect for his family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
On appeal by the Secretary of State—
Held, appeal dismissed. The words of section 117D(4)(d) of the Nationality, Immigration and Asylum Act 2002, on their plain and ordinary meaning, clearly and unambiguously included offenders who had been sentenced to a hospital order. They expressly included a person who had been ordered or directed to be detained for an indeterminate period. Hospital orders were necessarily for an indeterminate period, until a clinician considered release appropriate. Even if an offender was conditionally released he was liable to recall. Such an interpretation did not require the reading in of words after “detention” and “detained”, namely “in an institution other than a prison (including, in particular, a hospital or an institution for young offenders)”, words which appeared in section 117D(4)(c). Detention meant detention, wherever the offender might be detained. The purpose of both section 117D(4)(c) and (d) was to enlarge the definition of “period of imprisonment of a certain length of time” and the difference in wording of (c) and (d) simply reflected the difference in focus of each paragraph which was entirely different. The legislature had not intended to omit from the scope of section 117D(4)(d) indeterminate sentences where the detention was to be served in a hospital. Therefore, the offender fell within the category of foreign criminal under section 117C(6). That, however, the Upper Tribunal had been entitled to find that there were very compelling circumstances over and above those described in section 117C(4) such that the offender’s deportation would be a breach of article 8 (paras 68–75, 77, 83, 88–91, 92, 93).
Decision of the Upper Tribunal (Immigration and Asylum Chamber) affirmed. Anthony Metzer QC and Alexis Slatter (instructed by Fadiga & Co Solicitors) for the offender.
Catherine Rowlands (instructed by Treasury Solicitor) for the Secretary of State.
Reported by: Sharene P Dewan-Leeson, Barrister