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

The immigration and mental-health regimes may operate in parallel. A person subject to hospital and restriction orders under the Mental Health Act 1983 may therefore be the subject of a deportation decision under the Immigration Act 1971. Section 42(2) has no implied requirement that the patient must be suitable for absolute discharge before it may facilitate deportation. Its exercise must, however, be rational and compatible with articles 3 and 8.

For a lawfully settled migrant who spent all or most of childhood and youth in the host state, article 8 requires very serious reasons to justify expulsion, particularly where the relevant offending was committed when young. A tribunal must recognise and apply that heightened standard; an ordinary balancing exercise does not suffice.

The appellant, an Angolan national, entered the United Kingdom at the age of 12 and later developed paranoid schizophrenia and significant learning difficulties. Following convictions, he became subject to hospital and restriction orders under the Mental Health Act 1983. The Secretary of State decided to deport him under section 3(5)(a) of the Immigration Act 1971.

The Asylum and Immigration Tribunal dismissed his appeal against deportation in determination IA161182007, rejecting claims under articles 3 and 8. Following a High Court order for reconsideration, a Senior Immigration Judge again dismissed the appeal. The central questions were whether the outstanding mental-health orders prevented a deportation decision and whether the Tribunal had lawfully assessed article 8 proportionality.

1. Appeal allowed unanimously. Dyson LJ, with whom Leveson and Waller LJJ agreed, held that the appeal succeeded on the article 8 ground. The court invited submissions on the consequential order.

2. The Secretary of State for the Home Department had jurisdiction to decide to deport a person who remained subject to hospital and restriction orders under sections 37 and 41 of the Mental Health Act 1983. The Immigration Act 1971 and the mental-health regime operate in parallel. The reasoning in R (on the application of X) v Secretary of State for the Home Department [2001] 1 WLR 740 strongly supported that conclusion.

3. Section 42(2) contained no implied restriction that a patient could be discharged to facilitate deportation only when suitable for absolute discharge, or likely soon to become so. The safeguard lay in the rational exercise of the power and compliance with articles 3 and 8. In particular, mental illness, available treatment in the destination state, and clinical fitness for discharge and travel required proper consideration.

4. The Tribunal nevertheless erred in its article 8 assessment. Under Maslov v Austria [2008] ECHR 546, very serious reasons were required to expel a settled migrant who had lawfully spent the major part of childhood and youth in the host country, especially where much offending was committed while young. Although the Tribunal carefully balanced private life against the risk of reoffending, it did not show that it appreciated or applied that heightened requirement. That error was sufficient to allow the appeal.

• Court of Appeal (Civil Division): Allowed the appeal on the article 8 issue: [2010] EWCA Civ 557.
• Asylum and Immigration Tribunal, reconsideration: Senior Immigration Judge Southern dismissed the appeal in a decision promulgated on 13 October 2008.
• High Court: Irwin J ordered reconsideration on 13 June 2008, identifying a possible failure to assess the relevant circumstances cumulatively.
• Asylum and Immigration Tribunal: Dismissed the appeal against deportation in a determination promulgated on 3 April 2008: IA161182007.