Deportation and mental disorder

The Court of Appeal has clarified the position of restricted patients who are to be dealt with under the Immigration Act, writes Sallie Harrington.

MJ was a 28-year-old Angolan man who arrived in the UK when he was 12 to join his father, who had been granted leave to remain as a refugee. He also was granted indefinite leave to remain. He suffered from a learning disability and had been diagnosed with schizophrenia. MJ had been convicted of a number of offences, most of which took place before he was 21, and this had lead to his being admitted to hospital under sections 37 and 41 of the Mental Health Act 1983 (MHA).

The Home Secretary decided to deport MJ under the Immigration Act 1971, on the grounds that due to his convictions, deportation would be conducive to the public good. It was believed that he was highly likely to re-offend. When MJ’s appeal to the Asylum and Immigration Tribunal was dismissed, he applied to the High Court for a review, and an order for reconsideration was made. MJ was again unsuccessful, however, so he appealed to the Court of Appeal. The principle issues in the appeal were whether the Home Secretary could decide to deport MJ while he remained a restricted MHA patient, and if so, whether that decision breached MJ’s rights under Article 8 of the European Convention on Human Rights. (MJ v Home Secretary [2010] EWCA Civ 557)

Section 37 of the MHA applies to a person who has committed an imprisonable offence and has a mental disorder of a nature or degree that warrants treatment in hospital. Section 41 applies certain restrictions where it is necessary to protect the public from serious harm. A ‘restricted’ patient will continue to be liable to detention until discharged under other provisions of the MHA. Section 86 of the Act provides that a patient who is a foreign national may be removed to his country of origin, provided proper arrangements are in place and removal would be in his interests. MJ argued that he could not be deported under the provisions of the Immigration Act while he remained subject to the MHA.

In the case of a patient in hospital, it was the policy of the UK Border Agency not to deport him until he was ready to be discharged into the community. The Court of Appeal heard that in practice, the patient would be conditionally discharged under section 42(2) of MHA, the condition being that he transfer to the place from which he would be conveyed to his country of origin.

The Home Secretary relied on the case of R (X) v Home Secretary [2001], in which a patient who had been refused leave to enter and remain in the UK was removed to hospital under section 48 of the MHA before being made subject to a deportation order. While the facts of that case were different, the Court of Appeal accepted the fundamental point that the Immigration Act regime was not circumscribed by the MHA. It was apparent that Parliament had contemplated the provisions of the Immigration Act when drafting the MHA - there is a reference to it in section 86 - and had not made any express limitation on the application of that Act.

While the Home Secretary cannot disregard mental disorder when making a decision to deport someone, the fact that that person is subject to the MHA will not in itself exclude a deportation order being made under the Immigration Act. The immigration provisions may cut across section 86 and a person may therefore be removed on the basis that such is in the public’s interests if not his own.

Article 8 requires a balancing act between the individual’s right to respect for his private life against the wider matters of public interest set out in Article 8(2). Although the Asylum and Immigration Tribunal had given careful consideration to whether the deportation of the appellant would be a disproportionate interference with his Article 8 rights, the Court applied Maslov v Austria [2008] ECHR 546 and concluded that the decision of the Tribunal was flawed. Not only was it necessary to consider the cumulative effect of the factors affecting a patient’s Article 8 rights; where he has spent all or most of his childhood and adolescence in the host country, very serious reasons will be required to justify expulsion. That is particularly so where the patient committed the relevant offences as a juvenile. The tribunal had failed to demonstrate such serious reasons in this case.

While the applicant in this case succeeded on what the Court acknowledged was a narrow point, many others may be affected by the judgement. People seeking refuge in the UK may have experienced violence or intimidation in their country and been exposed to significant risks during their journey to the UK. The immigration process itself will be unfamiliar, confusing and is often subject to significant delays; all of which is likely to have a psychological impact on the applicant. Coupled with a lack of social support, possible racial discrimination and limited knowledge of the health care system in the UK, it is not surprising to find that an applicant’s mental health suffers. The Office of National Statistics reported in 2004 that “many factors for youth crime are shared with risks for psychiatric disorders. Looked after children, young people who are homeless and young offenders are among groups most at risk for psychiatric disorder.”

The Court of Appeal’s judgement allows immigration control to be put ahead of the care of patients under the Mental Health Act even, as in this case, where the patient is a lawful resident in the UK. The judgement also however emphasises the need for immigration authorities to properly consider the severity of the impact of deportation on the individual before concluding their rights are outweighed by wider public interests.

Sallie Harrington is an associate in the local government team at law firm Weightmans LLP. She can be contacted via This email address is being protected from spambots. You need JavaScript enabled to view it.