v Secretary of State for the Home Department [2000] EWCA Civ 3026 (7 December 2000)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HON. MR. JUSTICE TURNER

Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 7 December 2000

B e f o r e :

LORD JUSTICE SCHIEMANN
LORD JUSTICE TUCKEY
and
SIR SWINTON THOMAS

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“X”
Appellant
– and –
 
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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(Transcript of the Handed Down Judgment of
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____________________STEPHANIE HARRISON (instructed by Gill & Co. for the Appellant)
STEVEN KOVATS (instructed by Treasury Solicitor for the Respondent)

____________________

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LORD JUSTICE SCHIEMANN:
    1. This is the judgment of the court. This appeal from Turner J is concerned with the interrelation of the Immigration Act 1971, the Mental Health Act 1983, and the Human Rights Act 1998 and with the effect of an immigrant’s mental illness on the Home Secretary’s powers to refuse to grant him exceptional leave to enter or remain.
    2. X suffers from paranoid schizophrenia. He comes from Malta. He has no permission under the Immigration Act 1971 to be here. He arrived without such permission and, because of his adverse immigration history, was detained pursuant to Immigration Act powers. He applied for asylum but that application was rejected. He appealed. His mental condition was a cause for concern. Therefore the Home Secretary exercised his powers under section 48 of the Mental Health Act and made a transfer direction the effect of which was that he was detained in a hospital for medical treatment. His asylum appeal was rejected. The Home Secretary refused him leave to enter. X’s case has been reviewed by the Mental Health Review Tribunal (“the MHRT”) which was satisfied that it was appropriate to continue to detain X under Mental Health Act powers.
    3. Were it not for his mental illness the Home Secretary would undoubtedly have power under the Immigration Act to detain him and direct his removal to Malta. Were X a British Citizen the Home Secretary could not so direct although he would no doubt be liable to be detained under Mental Health Act powers.

The rival submissions : an overview

    1. Miss Stephanie Harrison who appears for X repeats before us the three submissions which she made unsuccessfully before Turner J:-

1. that the Home Secretary has, as a matter of proper construction of the Immigration Act, no power to direct his removal from hospital without first securing the approval of the MHRT.

2. that if this be wrong, the Home Secretary unlawfully fettered his discretion in such a way as to vitiate his decision to remove X.

3. that removal of X would be a breach of his rights under the Human Rights Act.

    1. Mr Steven Kovats who appears for the Home Secretary accepts that the Home Secretary has no power under the Mental Health Act without first securing the consent of the MHRT to direct X’s removal from hospital. He submits that this leaves untouched his powers under the Immigration Act to direct the removal of an immigrant who has no permission to be here. He submits that the Home Secretary has a discretion under the Immigration Act as to whether to remove the immigrant and he denies that the Home Secretary fettered this discretion. He accepts that the appellant’s rights under the Human Rights Act are in play but denies that the removal of the applicant involves any breach of his human rights.
    2. It is convenient first to set out the evidential position which is uncontentious and then to consider the Human Rights Act, statutory construction arguments and fettering discretion in that order although Miss Harrison dealt with her statutory construction point first. That is because one of Miss Harrison’s submissions was that the Immigration and Mental Health Acts must be construed so as not to infringe human rights if this can be done.

The Evidential Position

    1. The most recent medical evidence is as follows. X suffers from paranoid schizophrenia. He did not co-operate with the medical authorities when he was in Malta. Whilst being detained here he has attempted self harm in the past but not recently. He is opposed to his return to Malta. He says he cannot see that he has a future there and accordingly would consider harming himself or even suicide. Arrangements for his return to Malta would lead to an increased risk of self-harm. The risk of self-harm could be properly managed during his removal from this country and in Malta. Even properly managed the risk is still a real one and can never be fully eliminated. If he is forcibly removed from this country and returned to Malta a deterioration in his mental health would be almost inevitable. It is very difficult to provide any comment about the likely nature, extent or duration of such a deterioration. There are indications that he has made plans to attempt to harm himself during his current admission and the risk that he might try to put such plans into operation should he be returned to Malta must be considered to be high. It is possible that over time he might become reconciled to the fact that he has been returned to Malta and then such thoughts might decline. This risk is not directly linked to his psychiatric condition alone but is also related to his environment and circumstances and can therefore only be treated in part through medical care.
    2. The Home Secretary’s approach to the case appears from a witness statement made by a chief immigration officer on his behalf. From that it appears that the Home Secretary has investigated matters with those responsible for X’s treatment in Malta and with X’s responsible medical officer in this country. The following appears in the witness statement.

“11. The European Convention on Human Rights is not enforceable by English Courts. Nevertheless, the Secretary of State has regard to that Convention when exercising his statutory functions. The Secretary of State has considered all the evidence put before him by the applicant as to the likely effect of his removal. The Secretary of State has also made his own enquiries. As Dr. Exworthy’s letter of 16th August 1999 …. makes clear, if the applicant is to be returned to Malta then those responsible for his care can take steps to adjust the levels of nursing supervision, medication and freedom which the applicant receives to ensure that any risk of self-harm is managed whilst he is in the United Kingdom. During the applicant’s return journey he would be accompanied by a nursing escort to ensure his safe arrival in Malta. Dr. Saliba has confirmed that on that, on the applicant’s arrival, he would take over responsibility for the applicant’s care. The applicant would be admitted to the Mount Carmel Hospital in Malta as a compulsorily detained patient (if his condition warranted) or could be offered an in-patient assessment at that hospital. On the available evidence, the Secretary of State accepts that there is a risk that the applicant might harm himself if removed against his will. However, he is also satisfied that steps can and will be taken to minimise such risk both before and after removal to Malta. The management of such risk is a standard part of psychiatric practice.

12. The Secretary of State accepts that the applicant’s removal to Malta would be likely to cause distress and notes the possibility that such removal may adversely effect (sic) the applicant’s mental condition.

13. The Secretary of State accepts that the applicant may be less receptive to treatment in Malta because of his negative feelings about that country and those previously responsible for his care there. However, he also notes that the medical officer previously responsible for the applicant’s treatment has voiced the concern that the applicant’s negative feelings regarding those responsible for his care in Malta, might in time be extended to persons responsible for his treatment in the U.K. with the result that the same difficulties which the applicant previously experienced regarding engagement with treatment in Malta might also arise in the U.K. Both the doctors responsible for the applicant’s treatment in the U.K. have confirmed that the facilities available for the applicant’s treatment in Malta are adequate, albeit it that they may not match the standards in the U.K.

14. The Secretary of State believes that neither the act of removing the applicant to Malta nor its consequences would amount to inhuman or degrading treatment within the meaning of Article 3 of the ECHR, and that any consequential deterioration in the applicant’s mental health would not be of such an extent that the grant of exceptional leave would be appropriate in accordance with the Secretary of State (sic) policy on the grant of exceptional leave to asylum seekers …. The policy provides that applicants must be granted E.L.R. either if “return to the country of origin would result in the applicant being subjected to torture or other cruel, inhuman or degrading treatment …..” or where ” there is credible material evidence that return, due to the medical facilities in the country concerned, would reduce the applicant’s life expectancy and subject him to acute physical and mental suffering, in circumstances where the U.K. can be regarded as having assumed responsibility for his care.” The most recent report of Dr. Pierzchniak …. and the most recent letter from Dr. Exworthy … both confirm that the applicant’s removal would lead to a “deterioration” in his mental health. However the evidence does not go so far as to establish that any such deterioration would be so severe in nature that the applicant’s removal could properly be regarded as constituting torture, or other inhuman or degrading treatment of (sic) punishment within the meaning of Article 3 of the ECHR in circumstances where adequate treatment for the applicant’s condition will be made available and where steps to manage the risk of any attempt at self-harm will be taken. The medical evidence does not establish that, due to the medical facilities in Malta, the applicant’s return to Malta would reduce his life expectancy and subject him to acute mental suffering.

17. The applicant also asserts that the Secretary of State’s conclusion that his removal would be in his bests (sic) interests is irrational. In fact, the Secretary of State has not so concluded. He acknowledges that it may not be in the applicant’s best interests, at least in the short term, for him to be removed to Malta. However, the applicant’s interests are not the only matter to which the Secretary of State has regard. He has a statutory responsibility for immigration control. He … has an interest in protecting the limited resources of the National Health Service. Medical standards in the United Kingdom are amongst the highest in the world. The United Kingdom cannot treat all those who are unable for whatever reason to receive an equal standard of treatment in their own countries. In all the circumstances of the case, including the fact that the applicant has been refused leave to enter, the Secretary of State does not consider that the applicant has a sufficient connection with the U.K., nor sufficient reason not to return to Malta, to make it appropriate for him to continue to be treated here rather than in Malta.”

    1. The present case is one where the relevant decision was made before the Human Rights Act 1998 came into force. However, that Act is now in force and, given that the Home Secretary has adhered to his decision since the coming into force of the Act, we are prepared to assume in the appellant’s favour that this case ought to be judged as if the facts were that the relevant decision had been made after the coming into force of that Act. Any other approach would as a matter of reality only lead to the case coming back before us again in the future.
    2. There has been some debate before us as to the nature of the court’s powers when reviewing a decision by the executive that a course of action would not infringe the human rights of the person affected by that decision. We are prepared to assume in the appellant’s favour that this court has the duty of coming to a decision itself on the material before it as to whether the proposed course of action by the executive would infringe the appellant’s human rights.
    3. The appellant relied primarily on Article 3 of the Convention which provides that no one shall be subjected to torture or to inhuman or degrading treatment. Miss Harrison did not submit that there was a risk, still less a probability, that the treatment which the appellant would get in Malta would itself constitute torture or inhuman or degrading treatment. Nor could she have done. The evidence does not establish that. She did however submit that to move someone with a medical problem from conditions where it was being contained in circumstances where that removal would lead to an increased risk of self harm and a deterioration in mental health and might not be in the appellant’s best interests, amounted to a breach of article 3..
    4. She relied on Tyrer v U. K. (1978) 2 EHHR 1, Soering v U.K. (1989) 11 EHHR 439 and D v U.K. (1997) 24 EHHR 423. Tyrer established that birching a juvenile as a punishment for a crime constituted degrading treatment. Soering established that the extradition of an 18 year old alleged criminal to a state (Virginia) where conviction would expose him to capital punishment preceded by many years on death row rather than to another state (Germany) where he could still be tried for his crime without intense and protracted suffering on death row would amount to a breach of Article 3. We do not regard either of those cases as leading us to the conclusion that the removal of the appellant to Malta should properly be described as subjecting him to inhuman or degrading treatment.
    5. The facts of D were more akin to the present case. He came from St Kitts. He was imprisoned here and was diagnosed as having AIDS. The Home Secretary directed that he be returned to St Kitts on completion of his period in custody. He was in an advanced stage of a terminal illness. The limited quality of life which he enjoyed resulted from the availability of sophisticated treatment and medication in the U.K.. The abrupt withdrawal of these and other facilities would hasten his death and subject him to acute mental and physical suffering. There were various other exceptional circumstances. The court said this

53 ….. Although it can not be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3, his removal would expose him to a real risk of dying under the most distressing circumstances and would thus amount to inhuman treatment.

…….

54. Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion can not in principle claim any entitlement to remain on the territory of a Contracting State in order to continue to benefit from medical, social and other forms of assistance provided by the expelling State during their stay in prison. However in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3.

    1. These cases inevitably turn on their own facts. In our judgment the proposed removal of the appellant can not fairly be regarded as falling within the type of conduct which Article 3 proscribes. The judgement of the Home Secretary is not merely one which was open to him but was in our opinion correct.

Statutory Construction

    1. The Mental Health Act 1983 provides in section 47 that in the case of a person serving a sentence of imprisonment the Secretary of State may direct that that person be “removed to, and detained in” a hospital for medical treatment and that such a direction is to be known as a “Transfer Direction”.
    2. Section 48 (1) provides that, in the case of persons detained under the Immigration Act 1971, if the Secretary of State is satisfied that a person is suffering mental illness and that it is appropriate for him to be detained in a hospital for medical treatment he shall have the same power of giving a transfer direction in respect of him under section 47 as if he were serving a sentence of imprisonment.
    3. Section 86(1) provides :-

This section applies to any patient who is neither a British citizen nor a Commonwealth citizen having a right of abode in the United Kingdom by virtue of section 2(1)(b) of the Immigration Act 1971, being a patient who is receiving treatment for mental illness as an in-patient in a hospital …… and is detained pursuant to

(a) an application for admission for treatment ……

(b) a hospital order under section 37 …..;or

(c) an order or direction under this Act …… having the same effect as a hospital order.

    1. Section 86(2) provides:-

“If it appears to the Secretary of State that proper arrangements have been made for the removal of a patient …. to a country or territory outside the United Kingdom …. and for his care or treatment there and that it is in the interest of the patient to remove him, the Secretary of State may, subject to subsection (3) below –

(a) by warrant authorise the removal of the patient from the place where is receiving treatment as mentioned in subsection (1) above, and,

(b) give such directions as the Secretary of State thinks fit for the conveyance of the patient to his destination in that country or territory and for his detention in any place or on board any ship or aircraft until his arrival at any specified port or place in any such country or territory.

(3) The Secretary of State shall not exercise his powers under subsection (2) above in the case of any patient except with the approval of a Mental Health Review Tribunal…..”

    1. Miss Harrison submitted and Mr Kovats accepts that the effect of the foregoing provisions is that the Home Secretary can only use his powers under the Mental Health Act to remove him if 1. it appears to the Secretary of State that it is in the patient’s interests and 2. the MHRT approves. She submits and he accepts that in the circumstances of the present case these preconditions are not fulfilled.
    2. But, and here they part company, she submits that someone who is currently subject to the Mental Health Act regime can not be forced to leave that regime save by the mechanisms provided by that regime. Mr Kovats by contrast submits that Immigration Act powers run alongside Mental Health Act powers and the Home Secretary can, in the case of persons subject to Immigration Act powers use those in preference to those under the Mental Health Act; if he uses Immigration Act powers he is not subject to the preconditions on the use of the Mental Health Act powers.
    3. Miss Harrison pointed out that the Mental Health Act 1983 is later in time than the Immigration Act 1971. She submitted that in relation to the small category of persons who on the face of it fell to be dealt with under powers contained in either Act, the Act which made specific provision and which was later in time should prevail.
    4. We do not accept Miss Harrison’s submission. What one sees in the present case are two Acts which deal with different categories of persons – the mentally ill and immigrants.
    5. Parliament when enacting the Immigration Act 1971 had the Mental Health Act 1959 section 90 (the predecessor of section 86 of the 1983 Act) in mind – see section 30 of the 1971 Act which extended existing statutory powers for the removal of aliens receiving in-patient treatment for mental illness to all persons subject to immigration control.
    6. Similarly Parliament when enacting the Mental Health Act 1983 had the Immigration Act 1971 in mind. Section 86(1) of the 1983 Act specifically refers to it and paragraph 30 of Schedule 4 and Schedule 6 of the 1983 Act expressly amended section 30 of the 1971 Act to which we have just referred.
    7. The interaction of these two acts is something to which Parliament has adverted its attention yet what Parliament clearly did not do expressly was to circumscribe the Home Secretary in the use of his Immigration Act powers in the case of Mental Health Act patients.
    8. Parliament could have made special provision for those who fell into both categories, perhaps by providing a special regime for them, perhaps by providing that the Immigration Act regime was to prevail and be the only one, perhaps by providing that the Mental Health Act regime should be the only one. It did not do so. It left in existence two sets of powers either of which could be used subject to the conditions prescribed for the use of that power.
    9. It was necessary to provide an independent tribunal to which a person detained under Mental Health Act powers could appeal against the use by the Home Secretary of those powers : see X v U.K. (1981) 4 EHHR 188. Parliament did so by the Mental Health (Amendment) Act 1982. Similarly, there are appeal tribunals to which a person detained under Immigration Act powers can appeal.
    10. There appears to us no reason why the two regimes should not run in parallel in the case of a person who is both an immigrant and mentally ill. Clearly if the Home Secretary proposes to use his Immigration Act powers in relation a mentally ill person that illness will be a factor which he must take into account. It is not suggested in the instant case that he has failed to do so.
    11. Miss Harrison submitted that, once a transfer direction had been made, the hospital was bound to detain the patient and could not release him until the transfer direction ceased to have effect and that this could not happen if a patient was removed pursuant to Immigration Act powers. This gives rise to two separate questions : can a hospital allow a patient to leave the hospital grounds in the company of a nurse? The answer to that is in the affirmative and the contrary has not been argued. The second question is : if a patient is removed using Immigration Act powers does there come a time when the transfer direction ceases to have effect thus permitting the U.K. hospital to relinquish care of the patient?
    12. Miss Harrison referred us to Section 53 of the Mental Health Act which reads:

“(1) Subject to subsection (2) below a transfer direction given in respect of [persons detained under the Immigration Act 1971] s48 (2) above shall cease to have effect on the expiration of the period during which he would, but for his removal to hospital, be liable to be detained in the place from which he was removed.

(2) Where a transfer direction…… [has] been given in respect of any such person as is mentioned in subsection (1) above, then, if the Secretary of State is notified….. at any time before the expiration of the period there mentioned –

(a) that the person no longer requires treatment in hospital for mental disorder; or

(b) that no effective treatment for his disorder can be given in the hospital to which he has been removed,

the Secretary of State may by warrant direct that he be remitted to any place where he might have been detained if he had not been removed to hospital, and on his arrival at the place to which he is so remitted the transfer direction ….. shall cease to have effect.

    1. Subsection (2) has no present relevance – no such notification is appropriate nor has any been given. As for subsection (1) the position is that the transfer direction will cease to have effect when he is no longer liable to be detained by the Home Secretary. As appears from the statement from which we have quoted, arrangements are in hand for a medical handover to the authorities in Malta
    2. Miss Harrison referred us to Section 91 (1) of the Mental Health Act which provides:-

“Where a patient liable to be detained … by virtue of an ….. direction under Part II or III of this Act … is removed from England and Wales in pursuant of arrangements under this part of this Act, the …. direction shall cease to have effect when he is duly received into a hospital …. in pursuance of those arrangements.”

    1. This however does not bite in circumstances where the removal is not by virtue of a direction under that Act but by virtue of a direction under the Immigration Act.

Fettering discretion

    1. Miss Harrison submits, in the alternative, that the Home Secretary has a discretion whether to proceed using his Mental Health Act powers or his Immigration Act powers and that he fettered his discretion by deciding never to use his Mental Health Act powers in the case of persons in the position of the appellant.
    2. The relevant internal policy document has been placed before the court. It sets out the powers under section 86 of the Mental Health Act and provides that

The initiative for seeking the removal of a psychiatric patient lies with the hospital concerned under the direction of the case doctor. The Home Office should not take steps to repatriate a psychiatric patient unless first approached by the patient’s medical adviser.

    1. It has not been and could not be suggested that this prevents a patient or his relatives from approaching the Home Secretary and asking him to use those powers. Nor has it been submitted that the policy document sets out an illegal policy.
    2. The factual basis of the submission that the Home Secretary has fettered his discretion is paragraph 16 of the chief immigration officer’s statement from which we have already quoted. It reads:-

The power conferred on Secretary of State in section 86 is in addition to the Secretary of State’s powers under the Immigration Acts and is used only infrequently……. It is the practice of the Secretary of State to use section 86 only in the cases of persons who have been granted leave to enter the United Kingdom which this applicant has not. He does not regard it as a mechanism for ensuring immigration control. He uses it at the request of an individual’s responsible medical officer in cases where such officer has formed the view that an individual would be better cared for in all the circumstances if returned to his own country. The Secretary of State sees no good reason to depart from his practice in the present case. The Secretary of State believes that the possibility of using the section 86 power does not prevent him using his powers under the Immigration Act as an alternative….

    1. It is plain from the penultimate sentence that the Home Secretary has not shut his mind to the possibility of departing from his practice. We see no legal objection to the usual practice.

Conclusion

    1. For the reasons which we have given we reject each of the submissions made on the appellant’s behalf and we dismiss this appeal.

ORDER: Appeal dismissed with costs paid by Legal Aid Board. Application to appeal to the House of Lords refused.

(Identification restriction)
(This order does not form part of approved judgment) 

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