X v Secretary Of State For The Home Department

Removal of a person suffering mental illness may be directed under immigration powers even while detained in hospital under the Mental Health Act 1983. The immigration and mental-health regimes operate in parallel, and safeguards applicable to one do not automatically restrict the other. Mental illness and removal risks must nevertheless be considered. Article 3 is breached only in exceptional circumstances involving consequences of sufficient severity and compelling humanitarian considerations. An administrative practice does not unlawfully fetter discretion where the decision-maker remains willing to depart from it.

X, a Maltese national suffering from paranoid schizophrenia, entered the United Kingdom without permission, claimed asylum unsuccessfully and was detained under immigration powers. He was transferred to hospital under section 48 of the Mental Health Act 1983. The Secretary of State refused leave to enter and directed removal to Malta under immigration powers, while acknowledging the risks to X’s mental health and the possibility of self-harm.

Turner J rejected X’s challenge. On appeal, X argued that removal required Mental Health Review Tribunal approval, that the Secretary of State had fettered his discretion, and that removal would breach Article 3. The central issues were whether the statutory regimes operated concurrently and whether the proposed removal was unlawful.

1. Appeal dismissed. The Court of Appeal rejected all three grounds. Permission to appeal to the House of Lords was refused.
2. Article 3 did not prohibit the proposed removal. The medical evidence showed a real risk of self-harm and deterioration, but did not establish that treatment in Malta would itself constitute torture or inhuman or degrading treatment. Tyrer v U. K., (1978) 2 EHHR 1, and Soering v U.K., (1989) 11 EHHR 439, did not require that conclusion. D v U.K., (1997) 24 EHHR 423, concerned very exceptional facts and compelling humanitarian considerations absent here.
3. Sections 47 and 48 of the Mental Health Act 1983 provided the transfer-direction regime. Section 86 required Mental Health Review Tribunal approval for removal under that Act. Those conditions did not restrict removal under the Immigration Act 1971. Parliament had considered the interaction between the Acts but had not made either regime exclusive. The powers therefore operated in parallel, although mental illness had to be taken into account when immigration powers were exercised.
4. A transfer direction made under section 48 ceased to have effect when X was no longer liable to detention under immigration powers. Section 91 did not apply because the removal was not made under the Mental Health Act.
5. The Secretary of State had not unlawfully fettered his discretion. His practice concerning section 86 did not prevent requests for its use and he had not closed his mind to departing from it.

• Court of Appeal (Civil Division): appeal from Turner J dismissed; permission to appeal to the House of Lords refused.