The Secretary of State for the Home Department v MZ

A person made subject to a hospital order after a finding under section 5(1)(b) of the Criminal Procedure (Insanity) Act 1964 is not a foreign criminal for section 117C of the Nationality, Immigration and Asylum Act 2002. Section 117D(3)(a) provides that such a person has not been convicted of an offence. A hospital order may constitute detention for an indeterminate period, but it cannot satisfy the separate conviction requirement.

The same person is not a foreign criminal for paragraphs A398 to 399 of the Immigration Rules. A finding that an accused did the act charged, without a finding of the mental element of an offence, does not establish that the person committed an offence or is a criminal.

MZ, a Pakistani national, entered the United Kingdom as a child. A jury found him unfit to plead and found that he had done the act charged. The Crown Court made a hospital order with a restriction order.

The Secretary of State refused his human-rights claim and made a deportation decision. The First-tier Tribunal allowed MZ’s Article 8 appeal, holding that he was not a foreign criminal. The Secretary of State appealed to the Upper Tribunal.

The central issues were whether the hospital order brought MZ within the statutory and Rules-based foreign-criminal regimes, and whether he met the private-life Immigration Rules.

1. The Secretary of State’s appeal was dismissed. The First-tier Tribunal did not err in holding that MZ was not a foreign criminal for section 117C of the Nationality, Immigration and Asylum Act 2002.

2. MZ was subject to an order under section 5(1)(b) of the Criminal Procedure (Insanity) Act 1964. Section 117D(3)(a) therefore deemed him not to have been convicted of an offence. The finding that he did the act charged was a finding of fact, not a conviction. Although a hospital order can amount to indeterminate detention for section 117D(4)(c), the separate requirement in section 117D(2)(b), namely conviction in the United Kingdom, was not met. KE (Nigeria) [2017] EWCA Civ 1382 concerned a person who had been convicted and did not compel a different result.

3. The foreign-criminal provisions of paragraphs A398 to 399 of the Immigration Rules also did not apply. A jury finding under section 4A of the 1964 Act established only that MZ had performed the physical act. It made no finding that he possessed the mental element required for a criminal offence. He could therefore not in law be described as having committed an offence, as an offender, or as a criminal. It was unnecessary to resolve the differing approaches in OLO [2016] UKUT 00056 and Andell [2018] UKUT 198.

4. The First-tier Tribunal had failed to consider the suitability requirement in paragraph 276ADE(1)(i), including paragraph S-LTR.1.6. That error did not alter the result. Its findings established very significant obstacles to MZ’s integration in Pakistan under paragraph 276ADE(1)(vi): he required continuous treatment and monitoring for serious mental illness, needed supported care, and had no one in Pakistan able or willing to assist him. He accordingly satisfied the private-life Rules.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed in [2020] UKUT 225 (IAC).
• First-tier Tribunal: In a decision promulgated on 10 October 2019, the tribunal allowed MZ’s appeal on Article 8 human-rights grounds.