ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGES ESHUN AND CANAVAN
Appeal No IA/16041/2012
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SHARP
LORD JUSTICE HICKINBOTTOM
| THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
|- and -
Anthony Metzer QC and Alexis Slatter (instructed by Fadiga & Co Solicitors)
for the Respondent
Hearing date: 27 July 2017
Crown Copyright ©
Lord Justice Hickinbottom :
"… the court may by order authorise his admission to and detention in such hospital as may be specified in the order…".
Such an order is known as "a hospital order" (section 37(4)), and it authorises the managers of a hospital to detain the offender in accordance with the provisions of the 1983 Act (section 40(1)(b)). Generally, the offender is treated as a patient who has been compulsorily admitted under Part II of the 1983 Act (section 40(4)).
"A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of in-patient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts."
That emphasis is reinforced in the Secretary of State's guidance, "Mental Health Act 2007: Guidance for the courts on remand and sentencing powers for mentally disordered offenders" (March 2008), to which we were also referred. Section 37(8) of the 2003 Act effectively proscribes the imposition of a sentence of imprisonment or other order designed to punish the offender, if a hospital order is imposed.
"In the context of that wider question the matters to which a judge will invariably have to have regard include (1) the extent to which the offender needs treatment for the mental disorder from which the offender suffers, (2) the extent to which the offending is attributable to the mental disorder, (3) the extent to which punishment is required and (4) the protection of the public including the regime for deciding release and the regime after release."
"32. Automatic deportation
(1) In this section "foreign criminal" means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that—
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
(a) he thinks that an exception under section 33 applies,
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies…
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights…
(6) Exception 5 is where any of the following has effect in respect of the foreign criminal—
(a) a hospital order… under section 37 of the [2003 Act]…
(7) The application of an exception—
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4.".
i) For the purposes of section 32(2) (Condition 1), by section 38(1)(c) and (d), references to "a person who is sentenced to a period of imprisonment of at least 12 months":"(c) includes a reference to a person who is sentenced to a period of detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders) for at least 12 months, and(d) includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for 12 months)."
ii) For the purposes of section 32(3)(a) (Condition 2), the Secretary of State has made a relevant order, namely the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (SI 2004 No 1910), Schedule 2 of which classifies affray as a specified offence.
iii) For the purposes of section 32(3)(b) (Condition 2), by section 38(2)(b) of the 2007 Act, references to "a person who is sentenced to a period of imprisonment":"(b) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders)".
iv) For the purposes of section 33(2)(a), by section 38(4)(b), "Convention rights" has the same meaning as in the ECHR. Those rights therefore include those falling within the scope of article 8 of the ECHR, which provides that no public authority will interfere with the right to respect for private and family life except as provided by article 8(2), namely "as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others". It is uncontroversial that the public interest in deporting foreign criminals generally falls within the categories involving the prevention of crime and public safety.
v) The exception in section 33(6)(a) applies whilst a hospital order is current.
"21. .... The changes were said to reflect the Government's and Parliament's view of how, as a matter of public policy, the balance should be struck between the right to respect for private and family life and the public interest in public safety by protecting the public from foreign criminals…. The changes were also intended to align the Rules with the body of case law concerning article 8, and in particular to reflect a consideration of the proportionality of deportation in accordance with article 8….
22. In relation to the deportation of foreign offenders, in particular, it was explained in the Statement of Intent that the Secretary of State considered that there were some offenders who should almost always be removed because of the seriousness of their crime and the overwhelming public interest in their deportation, despite their family or private life in the UK, and some other offenders who should normally be deported but who might be able to argue in individual cases that their family or private life outweighed the public interest in deportation. There were also cases where the level of criminality was below the automatic deportation threshold, but the offending was so harmful or persistent that deportation would normally be proportionate. The Government believed that a custodial sentence of four years or more represented such a serious level of offending that it would almost always be proportionate that it should outweigh private or family life, even taking into account that the best interests of a child were a primary consideration. Deportation would normally be proportionate where the foreign offender had received a sentence of between 12 months and four years, or where the sentence was of less than 12 months but, in the view of the Secretary of State, the offending had caused serious harm or the person was a persistent offender who showed a particular disregard for the law. Deportation would not, however, be proportionate if the offender had a parental relationship in the UK with a child who was a British citizen or had lived in the UK for the last seven years, the child could not reasonably be expected to leave the UK, and there was no other family member able to care for the child in the UK. Nor would it be proportionate if the offender had a relationship with a partner in the UK who was a British citizen or was in the UK with refugee leave or humanitarian protection, the offender had lived in the UK with valid leave for the last 15 years, and there were insurmountable obstacles to family life with the partner continuing overseas. Nor would it be proportionate if the offender had been continuously resident in the UK for the last 20 years, or was aged under 25 and had spent at least half his life in the UK, and in either case had no ties with his country of origin."
"… the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK".
"(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ('C') who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted."
Given that section 117C(2) provides that there is a direct correlation between the seriousness of offences and the public interest in the deportation of a criminal who commits them, and there is a general correlation between the seriousness of offence and the sentences imposed upon those who commit them, it is unsurprising that the statutory provisions continue to provide for a different approach to article 8 claims on behalf of a potential deportee dependent upon the length of sentence that has been imposed upon him, with different criteria applying to those who are sentenced to at least four years' imprisonment than to those who are sentenced to less. To offenders who are sentenced to at least four years, or who fall outside the exceptions, the new statutory provisions reflect MF (Nigeria) by adopting the wording "very compelling circumstances" instead of the previous "exceptional circumstances".
i) Section 117D(2) defines "foreign criminal" as a person who is not a British citizen and who has been convicted in the United Kingdom of an offence and who (i) has been sentenced to a period of imprisonment of at least 12 months, (ii) has been convicted of an offence that has caused serious harm or (iii) is a persistent offender.
ii) Section 117D(4) provides:
"In this Part, references to a person who has been sentenced to a period of imprisonment of a certain length of time—
(c) include a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders) for that length of time; and
(d) include a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period, provided that it may last for at least that length of time."
"398. Where a person claims that their deportation would be contrary to the UK's obligations under article 8 of the [ECHR], and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
399. This paragraph applies where paragraph 398(b) or (c) applies if—
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (the deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that [partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2 of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) or (c) applies if—
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be significant obstacles to his integration into the country to which it is proposed he is to be deported.
"390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.
390A. Where paragraph 398 applies the Secretary of State will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors.
391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:
(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained, or
(b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,
unless, in either case, the continuation would be contrary to the [ECHR] or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors.
391A. In other cases, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order."
However, although these Rules are unamended, (i) it is clear that, in this context, "exceptional circumstances" means "very compelling circumstances", and; (ii) in any event, the statutory provisions in sections 117A-117D are the relevant drivers in cases which concern the application of article 8(2), and they do apply to consideration of revocation of deportation orders (see paragraph 25 above).
"49. … It is necessary to feed into the analysis the facts of the particular case and the criteria which are appropriate to the context, and, where a court is reviewing the decision of another authority, to give such weight to the judgment of that authority as may be appropriate. In that way, relevant differences between, for example, cases where lawfully settled migrants are facing deportation or expulsion, and cases where an alien is seeking admission to a host country, can be taken into account.
50. In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament's and the Secretary of State's assessments of the strength of the general public interest in the deportation of foreign offenders…, and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest on deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed – very compelling, as it was put in [MF (Nigeria)] – will succeed".
See also  to similar effect.
"… [I]t will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are 'very compelling circumstances, over and above those described in Exceptions 1 and 2' as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within the Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6)."
I respectfully commend such an approach.
The Legal Proceedings
i) The Respondent's medical condition did not approach the high threshold required to engage article 3.
ii) With regard to KJ and her children, there was no functioning family unit of which the Respondent was part.
iii) Given that the Respondent's relationship with KJ only began in 2010, that the Respondent had been in detention for most of the time since then, and that KJ and her children had coped without the Respondent's assistance in the meantime, the Respondent's removal to Nigeria would not adversely affect the children.
iv) Although there may be practical difficulties in KJ and her children moving to Nigeria, there was no evidence that it would be impossible or exceptionally difficult for them to do so.
v) There was no evidence to suggest that the Respondent could not reintegrate into life in Nigeria without undue hardship.
vi) As a result of his medication, the state of the Respondent's health was reasonable, and "apparently not at threat of diminishing significantly" so long as he continued his medical regime as then prescribed. That medication (or a generic variant) is available in Nigeria. There was no evidence that, if the Respondent were to return to Nigeria on his current medical regime, there would be any appreciable deterioration in his health.
vii) In the free-standing balancing exercise that was then to be performed, given the seriousness of the Respondent's offending, deportation would not be a disproportionate interference with the article 8 rights of the Respondent, KJ or her children.
i) It would be in the best interests of the children to be with their mother in the United Kingdom.
ii) The Respondent's medical condition did not approach the high threshold required to engage article 3.
iii) Furthermore, as in principle treatment and medication for the condition are available in Nigeria, article 8 would not be breached "purely on medical grounds".
iv) However, the tribunal accepted that the Respondent would have no family support in Nigeria; and they accepted the expert evidence of a consultant psychiatrist (Dr Pierzcheniak) that the support of his step-mother and other relatives in the United Kingdom, and their involvement with his treatment, were as important as any medical help. They accepted the evidence of Dr Pierzcheniak that the stress of managing by himself would make a relapse of the Respondent's condition "inevitable" on removal to Nigeria.
v) If he were to remain in the United Kingdom, the combination of appropriate medical treatment and that support, would mean that the risk of the Respondent reoffending would reduce over time.
vi) On the facts of this particular case, the article 8 rights of the Respondent and his family members outweighed the public interest in deporting him.
i) Arguably, the restriction order meant that the Respondent should be considered as having been sentenced to at least four years' imprisonment, and they thus considered the appeal on that basis. Consequently, it would only be in "exceptional circumstances" in which the public interest in deporting the Respondent could be outweighed by other factors.
ii) The Respondent suffered from a dissocial personality disorder, and he had had problems in the past in adhering to rules and walking away from confrontation; but he was engaging in psychology groups to assist with that.
iii) More importantly, the Respondent had been diagnosed as suffering from paranoid schizophrenia; but, since his symptoms had been well-controlled by medication, there had been no further episodes of violence. One of the Respondent's problems was that he believed he did not need medication. The tribunal found that, since he had been receiving injections, the risk of his not taking medication had significantly reduced, thereby significantly reducing his risk to the public that he had previously posed. However, there was no evidence that he would have access to that form of medication in Nigeria, particularly after 21 days when the Respondent would have to fund his own medication. The tribunal found that it was extremely likely that the Respondent would be left without support or effective access to medication in Nigeria. They found that his illness was such that he would be unlikely to take any medication to which he would likely have access in Nigeria, leading to a relapse in his psychiatric condition.
iv) Even taking into account the strong public interest in favour of a foreign criminal being deported, in the light of those circumstances, they found there were exceptional circumstances which meant he should not be deported; and his deportation would be disproportionate in article 8 terms.
i) Whilst section 117D(4)(c) applied to hospital orders of a specified length, section 117D(4)(d) was restricted to indeterminate custodial sentences and did not apply to hospital orders of indeterminate length. The Respondent was thus not restricted to relying upon "exceptional circumstances"; but was able to rely upon the exceptions to deportation in paragraphs 399 and 399A.
ii) There was insufficient evidence to show that the Respondent had a parental relationship with KJ's children; and the Respondent and the children could maintain their relationship, such as it was, by telephone, which had been the main form of communication between them whilst the Respondent had been detained. Furthermore, the Respondent had formed a relationship with KJ at a time when he had been served with a notice of liability to deportation; and it would not be unduly harsh for the relationship to be continued by way of the telephone and occasional visits by KJ to Nigeria. Thus, the Respondent could not bring himself within the exceptions to deportation in paragraph 399(a) or (b) of the Immigration Rules.
iii) In terms of private life, the tribunal focused on section 117C(4) (Exception 1), as reflected in paragraph 399A of the Immigration Rules. The Respondent had been lawfully resident in the United Kingdom for most of his life. He had moved to the United Kingdom when he was 11 years old, and had spent his formative years and all his adult life here: and the tribunal were satisfied that he was socially and culturally integrated into the United Kingdom. In respect of whether there would be very significant obstacles to the Respondent being able to integrate into Nigeria, they referred to the factual findings of the First-tier Tribunal (which they adopted) that without support the Respondent was unlikely to be able to access his required medication which would lead to a relapse of his condition. They then continued:"Although the First-tier Tribunal made those findings as part of their assessment of whether there were exceptional or very compelling circumstances we are satisfied that the evidence considered by the First-tier Tribunal shows that there would be very significant obstacles to the [Respondent] being able to reintegrate in Nigeria. He left the country as a child and has no meaningful experience of living and working in Nigeria. He has no family members there who would be able to provide his with help and assistance. In the absence of the same level of support he is currently receiving in the UK, both in terms of psychiatric treatment and monitoring, as well as close family support, the evidence shows that his mental health condition is likely to deteriorate rapidly to the extent that he is unlikely to be able to look after himself. At that stage it is possible that he may begin to pose a risk to other people through violent behaviour but that in turn may create a risk of societal violence towards him. After considering all these elements as a whole we conclude that it can properly be said that there would be 'very significant obstacles' to the [Respondent] being able to reintegrate into life in Nigeria and that he therefore meets the requirements of paragraph 399A of the Immigration Rules."
The Respondent thus fell within Exception 1; and, they found, his deportation would be a breach of his article 8 private life rights.
"44. We find that the [Respondent] comes within one of the exceptions to deportation. However, even if we are wrong in relation to that matter, we conclude that the same set of factors would in any event amount to very compelling circumstances over and above those needed to meet the requirements of the exceptions for the purpose of paragraph 398 of the Immigration Rules.
45. In making that assessment we take into account the public interest factors contained in section 117C [of the 2002 Act]. The deportation of foreign criminals is in the public interest. The more serious the offence committed by the foreign criminal the greater the public interest in deportation. We also take into account that offences involving violence, sexual assault or drugs offences are deemed to be particularly serious. We also give weight to the fact that it is in the public interest to deter others from committing similar crimes. We bear in mind that deterrence cannot be an overriding consideration because otherwise no one would be able to resist deportation regardless of the nature of the crime or the level of risk of reoffending. It is nevertheless an important part of the weight to be placed on the public interest in deportation. It is clear that the combined effect of [section 117C] and the amendments made to Part 13 of the Immigration Rules now emphasise the significant weight that should be given to the public interest in deporting foreign criminals. However, the public interest must still be balanced against the individual circumstances of the foreign criminal and their family in order to assess whether a fair balance has been struck in all the circumstances of the case, i.e. whether there are 'very compelling circumstances' that outweigh the public interest in deportation.
46. We have taken into account the [Respondent's] history of offending and give significant weight to the fact that it involves several incidents of violence. Although the victims do not appear to have suffered any significant physical injuries no doubt his behaviour was extremely frightening and caused victims to fear for their safety. However, we also take into account the fact that the [Respondent's] offending behaviour arose out of his mental illness rather than a deliberate and conscious course of criminal offending. This much was recognised by the sentencing judge who found that it was suitable for the [Respondent] to be detained in hospital rather than sentencing him to imprisonment. No sentencing remarks are available for his conviction for common assault. We find it reasonable to infer from the low level of the sentence that this might be because it was dealt with in the magistrates' court although it is not clear from the evidence before the tribunal.
47. In this case the likelihood of reoffending depends largely on whether the [Respondent's] mental illness has been controlled to the extent that he is considered well enough to be released into the community. The [Respondent] will only be released into the community under strict conditions if the risk of serious harm is considered sufficiently reduced. Although the [Respondent] was transferred to hospital from immigration detention in May 2012 he is currently in immigration detention. There is no evidence to show that his condition is not currently under control through regular depot medication. The last report from Dr Taylor showed that his condition had been stabilised to a large extent and that the necessary medication and package of support would be available to him if he was discharged. Even if the [Respondent] was released from immigration detention he would not be released into the community without the consent of the Secretary of State or the [First-tier] Tribunal who would still have to decide whether he was well enough to be conditionally discharged under section 41 of the [2003 Act].
48. We have placed significant weight on the public interest in deportation of foreign criminals including the risk that the [Respondent] may pose of reoffending. However, we also take into account the fact that the section 41 order is designed to manage the risk the [Respondent] might pose as a result of his mental illness. We have weighed the nature and seriousness of the crimes committed by the [Respondent] against his personal circumstances. Having done so we are satisfied that there are a number of cumulative factors that outweigh the public interest in the particular circumstances of this appeal including the [Respondent's] age on arrival in the UK, the length of the lawful residence and his close family ties in the UK. The evidence shows that his mental health condition has been stabilised to a large extent through medication and close monitoring. He will continue to be treated and monitored in order to reduce the risk he might pose. In contrast, the [Respondent] has no family or current connections in Nigeria. If removed there he is unlikely to obtain the kind of support he would need to treat his condition, which is likely to deteriorate to the extent that he may pose a risk to others and as a consequence to himself. We do not consider this to be a strict medical case in the light of the [respondent's] significant ties to the UK but it forms one part of our assessment of all the relevant factors that have to be weighed in the balance.
49. For the sake of completeness we have also taken into account the factors outlined in paragraph 390 of the Immigration Rules, which should be considered in an application to revoke a deportation order. We have already outlined what weight we have placed on matters relating to the interests of the wider community and the weight to be placed on the maintenance of an effective system of immigration control. We have also weighed them against the interests of the [Respondent], including the compassionate circumstances surrounding his strong ties to the UK and his mental health condition. For the reasons given above we conclude that the [Respondent] comes within the private life exception to deportation contained in paragraph 399A of the Immigration Rules or in the alternative that the public interest in deportation is outweighed on the facts of this particular case and that the order should be revoked."
The Grounds of Appeal
Ground 1: Section 117D(4)(d)
"In this Part, references to a person who has been sentenced to a period of imprisonment of a certain length of time… include a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period, provided that it may last for at least that length of time."
i) The term "a certain length of time" appears in the initial part of section 117D(4) in the context of the definition in that Part of the 2002 Act to "a person who has been sentenced to a period of imprisonment of a certain length of time" being extended (and, indeed, restricted) in the manner which I have partly described. That part of the Act does not refer to any fixed sentence but only to sentences of periods of imprisonment of "four years or more" (section 117C(3)), or "at least four years (section 117C(6)), or for "at least 12 months" (section 117D(2)(c)(i)). As Mr Metzer accepted, the suggestion in the tribunal's determination that "a certain length of time" meant a fixed period (see, e.g.,  of their determination) therefore cannot be right.
ii) I accept, of course, that the reference in section 117D(4)(d) to "an indeterminate period, provided that it may last for at least that length of time" is a reference back to "a certain length of time" in the preamble to the sub-section. Thus, where there is a reference in that part of the Act to "four years or more" or "at least four years", an actual imposed sentence for an indeterminate period that may last at least four years is included. However, that does not assist the Respondent. Because a hospital order does not have any punitive element, it can have no minimum period representing appropriate punishment for the crime; but it is nevertheless for an indeterminate period, and one that may last four years or more.
iii) Mr Metzer submitted that, in the context of indeterminate sentences, "period of imprisonment of a certain length of time" should be construed as a reference to the minimum period to be served by way of punishment ("the tariff"), but there is nothing in the wording of the statutory provision that warrants that construction. It would require the reading in of the word "minimum" before "period of imprisonment", and would (e.g.) exclude from the scope of section 117C(6) those who are sentenced to indeterminate prison sentences with a tariff of less than four years irrespective of the risk that they continue to pose to the public at the end of that minimum term.
Ground 2: Section 117C(6)
Lady Justice Sharp :
Lord Justice McFarlane :