R v. Secretary of State for the Home Department, Ex parte Yassin Talmasani

R v The Secretary of State for the Home Department ex parte Yassin Talmasani

Court of Appeal (Civil Division)

[1987] Imm AR 32

Hearing Date: 15 October 1986

15 October 1986

Index Terms:

Deportation -- person suffering from clinical depression -- whether it was proper for the Secretary of State to initiate deportation proceedings under the Immigration Act 1971 -- whether he ought to have proceeded under the provisions of the Mental Health Act 1983. Immigration Act 1971 s3(5)(a); Mental Health Act 1983 ss 48, 86.

Held:

The applicant for judicial review was an overstayer against whom the Secretary of State had proceeded under s 3(5)(a) of the Immigration Act 1971. There was eivdence, not before the Court below, that the applicant was suffering from clinical depression. Counsel submitted that the Secretary of State, in those circumstances, ought not to have acted under the provisions of the Immigration Act 1971, but should have exercised his powers under the appropriate sections of the Mental Health Act 1983. Held: 1. There was no reason in principle, on the facts, why the Secretary of State should have proceeded under the Mental Health Act and not under the Immigration Act. 2. There was no evidence of a mental illness of a severity which required the Secretary of State to take account of the mental condition of the applicant upon a deportation order taking effect. 3. Obiter: it would have been different if the applicant had been so severely mentally ill as to make it inhumane for the Secretary of State to deport him without making the necessary arrangements for his reception in the country of destination.

Cases referred to in the Judgment:

No cases are referred to in the judgments.

Counsel:

A Riza for the applicant; IC Katkowski for the respondent PANEL: Sir John Donaldson MR, Dillon, Croom-Johnson LJJ

Judgment One:

SIR JOHN DONALDSON MR: This is a renewed application for leave to apply for judicial review of a refusal by the Secretary of State of an application not to activate a deportation order originally, but no longer, on the grounds that the applicant had suddenly made an application for political asylum. The application has been previously considered by Turner J, who gave a full judgment on 20 August, when he refused to grant leave. Very briefly, the facts are these. In September 1982 the applicant entered this country as a visitor for one month, having previously been refused permission to come here on an application to visit because the entry clearance officer was not satisfied that he intended to leave the United Kingdom at the end of the stated period. That application was renewed, and the entry clearance officer, with clear reluctance, gave the necessary permission subject to the applicant giving an undertaking that he would not embark on a course of study during his stay in the United Kingdom and then try to lengthen his stay on the ground that he was a student. That is precisely what the applicant did. Within a month he was applying for leave to remain as a student. That took some time to process, but the application was eventually refused. He then proceeded to overstay and could not be found. On 3 August, 1984 a deportation order was signed. It took time to find him, and indeed he only surfaced on 10 January 1985 when he applied to remain on a new basis, namely that he had married a British citizen. That too was investigated -- with remarkable tolerance in view of the history of the applicant -- and it was found that while it was true that he had married a British citizen, that marriage no longer subsisted as an effective marriage. So that application failed. Then in December 1985 he was arrested. It was at that stage that the application for political asylum reared its head. Since the applicant has been in custody he has developed symptoms of depression, which to a layman might not be altogether surprising. However, in fairness to the applicant, it must be said that a consultant psychiatrist has stated that he is suffering from clinical depression which requires treatment. It is on that basis that Mr Riza has raised a new point which was not raised before Turner J. He says that the Secretary of State has power under section 48 of the Mental Health Act 1983 to transfer the applicant, being a person detained under the Immigration Act 1971, to a mental hospital. Mr Riza says that had he taken that course, he then has further power to consider deporting him under section 86 of the Act, but of course that would involve a review by a mental health tribunal and consideration by the Secretary of State as to whether satisfactory arrangements to treat his illness could be made in the country to which he was being deported. It is said by Mr Riza that this is a Wednesbury case. The failure of the Secretary of State to consider this possibility -- if, indeed, he did not consider the possibility; we do not know -- makes his decision vulnerable on Wednesbury grounds. For my part I see no reason at all why in principle the Secretary of State should have considered going the section 86 route when there were abundant reasons for a straight deportation order. If the Wednesbury challenge had been upon the basis that the applicant was so severely mentally ill that it would be inhumane to deport him without the Secretary of State satisfying himself that adequate arrangements had been made for his reception in the receiving country, that would have been a different matter. Lest anybody think I am suggesting for one moment that Mr Riza has omitted to say anything which could be said on behalf of the applicant, let me make it clear that I mention that possibility merely in case this decision could be regarded in any way as a precedent in any other case. But there is no evidence here that I can see of mental illness of a severity which would require the Secretary of State to take account of the mental condition of the applicant upon a deportation order taking effect. No doubt the Secretary of State has had the benefit of reports from the prison hospital and from those doctors qualified in mental illness who visit that hospital. We have not seen those reports, but it would be quite wrong to think that the only information available to the Secretary of State is that contained in the consultant's report provided by the applicant. For those reasons I would refuse this renewed application for leave to apply for judicial review.

Judgment Two:

DILLON LJ: I agree.

Judgment Three:

CROOM-JOHNSON LJ: I agree

DISPOSITION:

Application refused.

SOLICITORS:

North Islington Law Centre, Treasury Solicitor

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