MJ (Angola) v Secretary of State for the Home Department

On an interlocutory application in a deportation appeal, the Court of Appeal may direct service on a minister responsible for a statutory power that may materially affect the appeal. This is appropriate where important practical questions arise about the power’s exercise and the court would be assisted by the minister’s policy, purposes or attendance. The possible effects of continuing detention on discharge and on the merits or timing of the deportation appeal may justify that direction. The court need not decide the substantive scope of the power at that stage. The lawfulness of deportation and tribunal jurisdiction remained unresolved.

The appellant had a low IQ, paranoid schizophrenia and was detained under sections 37 and 41 of the Mental Health Act 1983. The Secretary of State for the Home Department proposed his deportation. The appeal had come from the High Court of Justice, Chancery Division, before Mr Justice Briggs. At this interlocutory stage, the appellant sought leave to serve the Secretary of State for Justice, who was responsible for deployment of the section 42 discharge power. The application concerned whether that minister’s policy and participation could assist the future appeal, while wider arguments about the lawfulness of deportation and tribunal jurisdiction were reserved.

Interlocutory application

1. Application granted. The court directed that the Secretary of State for Justice be served with the appeal proceedings. The Treasury Solicitor was also to be informed that the court would be assisted by the minister’s presence through counsel at the substantive hearing.
2. The Secretary of State for Justice was responsible for deployment of the section 42 power under the Mental Health Act 1983. The Secretary of State for the Home Department had only partial instructions on the relevant issues. The court therefore considered that important practical questions might arise concerning the use of section 42 in a deportation case and that information about its policy and objects would assist the future hearing.
3. The court identified a possible interaction between detention, discharge and the deportation appeal. If the appellant remained detained because his health did not permit discharge, the period of detention might be extended. That could affect the merits of any deportation appeal.
4. The appellant’s submissions that an unexecuted deportation decision was unlawful, and that the Asylum and Immigration Appeal Tribunal consequently lacked jurisdiction, were not determined on this application. Those issues were left for the substantive appeal.
5. The submission that section 42 was not confined by medical or health considerations was recorded but left for later consideration. The order was procedural and did not determine the scope of the discharge power or the merits of the deportation challenge.

• Court of Appeal (Civil Division): [2009] EWCA Civ 741. The interlocutory application was granted and service on the Secretary of State for Justice was directed.
• High Court of Justice, Chancery Division: The appeal arose from proceedings before Mr Justice Briggs. The judgment gives no citation or disposition for the lower-court decision.