The Secretary of State for the Home Department v JO

Under Immigration (European Economic Area) Regulations 2006, inactivity due to illness is treated as activity as a worker without a limitation by reference to the nature or duration of the illness. That expression includes mental illness.

An EEA national detained under a hospital order after being found not guilty by reason of insanity does not thereby cease to be a qualified person. Such detention is fundamentally different from imprisonment following conviction, which follows the offender’s own criminal conduct. Where residence rights are governed by express regulatory provisions, genuine integration is not an additional free-standing requirement for entitlement to permanent residence.

The Secretary of State appealed against a First-tier Tribunal decision, promulgated on 12 December 2011, allowing JO’s appeal against a deportation order.

JO, a Slovak national, had worked in the United Kingdom before committing a serious assault. He was found not guilty by reason of insanity, diagnosed with paranoid schizophrenia, and made subject to a hospital order and special restrictions under the Mental Health Act 1983. The Secretary of State contended that his secure hospital detention could not count towards the five-year residence period required for permanent residence under the Immigration (European Economic Area) Regulations 2006.

The central issue was whether detention under that hospital order was inactivity due to illness which preserved his status as a worker and qualified person.

1. Appeal dismissed. The First-tier Tribunal had been entitled to find that JO worked as a joiner before his arrest. The Secretary of State had not shown any error in that factual finding.

2. Regulation 5(7)(b) of the Immigration (European Economic Area) Regulations 2006 treats inactivity due to illness as activity as a worker. Read with regulations 6, 14(1) and 15(1)(a), that provision permits such a period to count towards continuous lawful residence and permanent residence. The term illness has no textual restriction by type of illness or length of incapacity. It includes mental illness.

3. The reference to temporary inability in Article 7(3) of Directive 2004/38/EC did not justify adding a temporal qualification to the domestic regulation. The Regulations were made later and did not adopt that word. Nor was there a basis for excluding incapacity caused by mental ill health.

4. The established exclusion of imprisonment following conviction did not govern detention under a hospital order. Bulale v Secretary of State for the Home Department [2008] EWCA Civ 806 and HR (Portugal) v Secretary of State for the Home Department [2009] EWCA Civ 371 identified the significance of imprisonment resulting from the person’s own criminal conduct. A hospital order follows a finding of mental disorder and absence of criminal responsibility. The two forms of detention therefore fall into different categories for these Regulations.

5. Recitals concerning integration in the Citizens Directive did not impose a separate requirement of genuine integration where the entitlement was determined by express regulation rather than administrative discretion.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed.
• First-tier Tribunal: JO’s appeal against the deportation decision was allowed in a determination promulgated on 12 December 2011.