X v Secretary of State for the Home Department

Immigration powers and mental-health detention powers may operate in parallel where a person is both subject to removal and detained in hospital for treatment. The requirement for Mental Health Review Tribunal approval applies to removal under the Mental Health Act 1983; it does not restrict removal under the Immigration Act 1971. Mental illness remains a factor which the Secretary of State must consider. Removal will breach article 3 only in exceptional circumstances. A policy governing use of the Mental Health Act removal power is lawful if the Secretary of State remains willing to depart from it.

The appellant, a Maltese national suffering from paranoid schizophrenia, entered the United Kingdom without permission and was detained under immigration powers. He was later transferred to hospital under section 48 of the Mental Health Act 1983. His asylum appeal failed and the Secretary of State directed his removal to Malta. The Mental Health Review Tribunal remained satisfied that his detention for treatment should continue.

Turner J rejected challenges based on statutory construction, alleged fettering of discretion and human rights. The appeal concerned whether removal required tribunal approval, whether the Secretary of State could use immigration powers instead, and whether removal would breach article 3.

1. Appeal dismissed. Removal to Malta would not breach article 3. Although there was a real risk of self-harm and deterioration, the risk could be managed and adequate treatment was available in Malta. The case did not fall within the exceptional circumstances identified in D v U.K. The court distinguished Tyrer v U. K. and Soering v U.K..
2. The Immigration Act 1971 and the Mental Health Act 1983 establish separate powers which may operate in parallel. The Mental Health Review Tribunal approval requirement applies to removal under the Mental Health Act, but does not restrict removal under immigration powers. Mental illness must nevertheless be considered when immigration powers are exercised.
3. A transfer direction under section 48 ceased under section 53(1) when the period of immigration detention would otherwise have expired. Section 91(1) did not apply because removal was not pursuant to a Mental Health Act direction.
4. The Secretary of State had not unlawfully fettered his discretion. His practice of using section 86 ordinarily only at the request of the responsible medical officer was lawful because he had not closed his mind to departing from it.
5. The appeal was dismissed with costs payable by the Legal Aid Board. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the appeal from Turner J, with costs payable by the Legal Aid Board; permission to appeal to the House of Lords was refused.