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Hospital orders and deportation


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In Secretary of State for the Home Department v KE (Nigeria) [2017] EWCA Civ 382, the Court of Appeal tackled

the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is “a foreign criminal who has been sentenced to a period of imprisonment of at least four years” for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights… to deport him.

The case is also a good example of what can be considered “very compelling circumstances” in deportation cases.

Factual background

The respondent was a Nigerian national who arrived in the UK in February 1992, aged 11, to join his step-mother. Both of his biological parents had died before then. He was granted indefinite leave to remain in April 1993.

The respondent had a history of offending. Between September 1999 and July 2011, he was convicted of five offences of burglary and indecent assault, two counts of affray and three counts of assault. He spent some time in a young offender institution, and later in HMP Highdown, as a result of these offences.

More importantly for this case, he was also sentenced to a hospital order and a restriction order without limit of time in 2004. He was later diagnosed as suffering from paranoid schizophrenia.

On 25 July 2011, he was served with a deportation order and removal directions were served on 11 October, with the removal set for 26 October. On that date, he issued judicial review proceedings and obtained an injunction restraining removal. The Secretary of State cancelled the removal directions and decided to treat the judicial review as an application to revoke the deportation order.

Almost six years later and several appeals down the line, the case found its way to the Court of Appeal.

Hospital orders and deportation

If you are not familiar with the law on the deportation of non-EU nationals, I encourage you to read this blogpost by Nick Nason. For the time being, its excellent “deportation test: a summary” should be sufficient to understand this judgment:

  • Those convicted of a crime and sentenced to over 1-4 years imprisonment will not be deported if they can show they fall into one of the exceptions outlined in s.117C(4) or s.117C(5) [of the Nationality, Immigration and Asylum Act 2002].
  • Those who are convicted of a crime and sentenced to 4 or more years in prison (or over 1 year and don’t fit within the exceptions) will need to show that there are ‘very compelling circumstances’ in their case to outweigh the public interest in their removal.
  • The matters to be taken into account when considering ‘very compelling circumstances’ are not limited to relationships with partners and children and/or length of residence/integration only, and can include the full spectrum of Article 8 issues that would have previously been considered in the pre-2012 proportionality exercise: see Kiarie [55]; and
  • The public interest in an individual’s removal is not the same in each case, and will vary depending on the seriousness of the offence: s.117C(2). See also SSHD v JZ (Zambia) [29].

In this case, the first question for the Court of Appeal was whether a hospital order for an indeterminate period counted as a sentence to a period of imprisonment of more than four years.

A hospital order is an alternative to prison. It can be given by the court when satisfied on the evidence of two medical practitioners that the offender is suffering from a mental disorder that makes it appropriate for him to be detained in a hospital for medical treatment.

The Court of Appeal found that

section 117D(4)(d) [of the Nationality, Immigration and Asylum Act 2002] clearly and unambiguously includes a person sentenced to a hospital order for an indeterminate period.

This meant that the respondent had been sentenced to a period of more than four years and therefore could not rely on the exceptions in sections 117C(4) or 117C(5). Instead, he had to show that there were “very compelling circumstances” in his case, outweighing the public interest in his removal.

Very compelling circumstances

The Court of Appeal went on to find that there were very compelling circumstances in this case.

…in coming to the view that the strong public interest in deporting foreign criminals who commit serious offences has been outweighed in this case, I particularly take into account the fact that the Respondent has not only fully integrated here, he has been here since he was 11 years old (he is now 37); the relevant offending resulted from his mental illness, namely paranoid schizophrenia; that illness is now controlled here, such that reoffending is unlikely; he has no relations or other support in Nigeria; without any support there, he will be unable to cope there and it is extremely likely that he will not have access to medication which will keep his paranoid schizophrenia in check; and, as a result, in a very real way, deportation would rob him of any sensible private life [paragraph 89].

In light of the above, the respondent’s deportation would be a disproportionate interference with the right to respect for his private life.

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