R (MJ (Angola)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Leveson |
| Judgment Date | 20 May 2010 |
| Neutral Citation | [2010] EWCA Civ 557 |
| Docket Number | Case No: C5/2008/2989 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2010 |
[2010] EWCA Civ 557
The Immigration Tribunal
Before: Lord Justice Waller
Vice-President of the Court of Appeal, Civil Division
Lord Justice Dyson
and
Lord Justice Leveson
Case No: C5/2008/2989
IA161182007
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Asylum and Immigration Tribunal
Richard Drabble QC and Abigail Smith (instructed by Messrs Wilson & Co) for the Appellant
Eleanor Grey and Matthew Barnes (instructed by Treasury Solicitors) for the Respondent
Hearing date: 24 th March 2010
Lord Justice Dyson:
Introduction
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 facts
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:
“…In normal circumstances there could be no question as to the propriety of removing a young man who had committed offences such as these, and whose responsiveness to authority has been poor. However, there is here a very serious combination of factors—serious mental illness; a total lack of family support in his country of origin; his total dependence on organised and regular medical care, including fortnightly depot injections essential to control his paranoid schizophrenia; his lack of the Portuguese language; his employment potential; the poverty, corruption and lack of mental health care in Angola, and in particular his very low IQ [at 58—well below mild impairment]: these taken together represent a very serious situation for the appellant if returned…in my view there may have been a failure, in this difficult case, to consider all these factors together rather than, in effect, serially…All these factors must be seen together in reaching a conclusion…”
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.
The statutory framework
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:
“(1) If the Secretary of state is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient shall cease to be subject to the special restrictions set out in section 41(3) above; and where the Secretary of state so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly.
(2) At any tine while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.”
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 MHA issue
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.
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