The applicant had been ordered to be deported and returned to Angola, but at the same time he was a detained mental patient. He argued that a return would breach his Article 8 rights.
Held: The respondent was entitled to decide to deport the appellant notwithstanding that he was still subject to orders under sections 37 and 41 of the MHA; and it was not irrational to commence and continue with the deportation process. ‘There is no express statutory limitation on the SSJ’s discretionary power to discharge and, in my judgment, there is no warrant for holding that such a limitation exists by necessary implication. The protection for the patient lies in the fact that the power must be exercised rationally and in such a way as will not breach his Convention rights.
In particular, the SSJ must respect the patient’s rights under article 3 and 8 of the Convention. If the discharge by the SSJ of a patient for the sole purpose of his being escorted to the place of embarkation from where he will be deported will injure his mental health, the discharge is likely to violate the patient’s Convention rights. By the same token, a decision by the SSHD to deport a person who is detained in a hospital is also likely to be in breach of those rights if his deportation will injure his health.
The appeal ducceeded on human rights grounds: ‘What the AIT did was to balance the appellant’s right to respect for his private life against the rights of others to be protected from the risk of his re-offending and to conclude that the former was outweighed by the latter. In performing the balancing exercise, which they found ‘very difficult’, they undoubtedly took into account the fact that the appellant had resided in the UK for a lengthy period and arrived here as an adolescent: see para 66. But there is nothing to indicate that they appreciated that the fact that (i) the appellant had lived in the UK since he was 12 years of age, (ii) most of his offending had been committed when he was under the age of 21 and (iii) he had no links with Angola meant that very serious reasons were required to justify the decision to deport him.’
Waller LJ VP, Dyson JSC, Leveson LJ
[2010] EWCA Civ 557, [2010] WLR (D) 132
Bailii, WLRD
Immigration Act 1971 3(5)(a), Mental Health Act 1983 37 41, European Convention on Human Rights 8
England and Wales
Citing:
Cited – Regina v Secretary of State for Home Department Immigration Appeals Tribunal ex parte Robinson CA 11-Jul-1997
Where an asylum seeker was seeking to escape from persecution in one area of his home country, the court must ask if an escape to a safe area in his country of origin is available and appropriate. A failure of the country to which an asylum seeker . .
Cited – Regina v Secretary of State for the Home Department, Ex parte X CA 9-Jan-2001
An asylum seeker had come to be detained under the Mental Health Act. The Home Secretary, having refused the asylum application, ordered him to be repatriated.
Held: Though the Secretary of State could only exercise his powers of removal under . .
Cited – Maslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
Cited – BA (Nigeria) v Secretary of State for The Home Department and Others SC 26-Nov-2009
The court was asked whether the expression ‘an asylum claim, or a human rights claim’ in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been . .
Cited – Uner v The Netherlands ECHR 18-Oct-2006
(Grand Chamber) The court considered the application of article 8 considerations in extradition and similar proceedings, and said: ‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any . .
Cited – JO (Uganda) and JT (Ivory Coast) v Secretary of State for The Home Department CA 22-Jan-2010
When considering an order for the deportation of a non-EU national on completion of a term of imprisonment, the actual weight to be placed on the criminal offending must depend on the seriousness of the offence(s) and the other circumstances of the . .
Cited by:
Cited – Cart, Regina (on The Application of) v The Upper Tribunal and Others CA 23-Jul-2010
The claimant had sought and been refused judicial review of a decision of the SIAC Upper Tribunal. The Upper Tribunals were designated as courts of superior record, and the court at first instance had said that SIACs specialist procedures and . .
Lists of cited by and citing cases may be incomplete.
Immigration, Health, Human Rights
Updated: 01 November 2021; Ref: scu.415968