The Secretary of State for the Home Department v KE (Nigeria)

An indeterminate hospital order is detention for an indeterminate period within section 117D(4)(d) of the Nationality, Immigration and Asylum Act 2002. It therefore places the offender within the four-year category in section 117C(6), even though the order is therapeutic rather than punitive and is served in hospital.

The statutory exception for a hospital order in the automatic-deportation scheme does not remove the power to deport. The decision-maker must still conduct the structured article 8 assessment, giving substantial weight to Parliament’s public-interest assessment while making an individual proportionality assessment. Very compelling circumstances may arise where a mentally ill offender, who arrived as a child, has no meaningful support or treatment access in the receiving country and would suffer a serious deterioration on removal.

The respondent, a Nigerian national who arrived in the United Kingdom aged 11, was convicted of affray and made subject to an indeterminate hospital order with an indeterminate restriction order. A deportation order was made in 2011. The Secretary of State later refused an application to revoke it on article 8 grounds.

The First-tier Tribunal allowed the respondent’s appeal. After further appeals and remittals, the Upper Tribunal allowed the respondent’s appeal on the basis that he fell within the private-life exception in section 117C(4), and alternatively that there were very compelling circumstances under section 117C(6). The Secretary of State appealed, raising the proper classification of an indeterminate hospital order and the assessment of integration obstacles and proportionality.

1. Appeal dismissed. Ground 1 succeeded: the Upper Tribunal had adopted the wrong view of section 117D(4)(d). Nevertheless, its alternative conclusion under section 117C(6) was lawful and sufficient. The order revoking deportation therefore stood.
2. Section 117D(4)(d) uses broad language. It includes a person sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period which may last for at least the statutory period. A hospital order is an order for detention in hospital and is necessarily indeterminate. A restriction order reinforces that conclusion because release depends on the Secretary of State or the appropriate tribunal, and conditional release remains subject to recall. The provision does not require a fixed tariff or a punitive minimum term.
3. The therapeutic character of a hospital order does not alter that construction. Under the Mental Health Act 1983, the order is forward-looking and concerned with treatment and protection from future harm rather than punishment. The automatic-deportation exception for a current hospital order removes the statutory presumption in favour of deportation, but does not remove the power to make or maintain a deportation order.
4. Part 5A of the Nationality, Immigration and Asylum Act 2002 provides a structured and exclusive article 8 scheme. It gives substantial weight to Parliament’s assessment of the public interest in deporting foreign criminals, but does not determine every individual case. The tribunal must make its own findings of fact and its own proportionality assessment.
5. For a person within section 117C(6), the question is whether very compelling circumstances, over and above the statutory exceptions, outweigh the public interest in deportation. The Upper Tribunal was entitled to find very significant obstacles to integration in Nigeria. The respondent had left Nigeria as a child, had no family or other support there, and was unlikely to obtain the support and medication required to control his schizophrenia. The resulting risk of deterioration was a powerful individual factor. The mental disorder also substantially reduced the force of deterrence and was relevant to the seriousness of the offending and the risk of reoffending.
6. The cumulative circumstances were capable of outweighing the strong public interest in deportation. The Upper Tribunal’s evaluation was within its proper margin, and was in any event correct on the evidence.

1. Court of Appeal (Civil Division) — The appeal against the Upper Tribunal’s determination was dismissed: [2017] EWCA Civ 1382.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 7 August 2015, allowed the respondent’s appeal against the refusal to revoke the deportation order and ordered revocation.
3. First-tier Tribunal (Immigration and Asylum Chamber) — Allowed the respondent’s appeal on article 8 grounds in determinations dated 18 July 2013 and 5 September 2014. An earlier Upper Tribunal decision allowed the Secretary of State’s appeal and remitted the matter for reconsideration.