Mental Illness and Deportation - Can Someone with Mental Illness Such as ADHD Be Deported from the UK on the Basis of a Crime They Committed?
Under the UK’s deportation rules, any non-EU migrant in the UK who has committed a crime leading to a prison sentence of between one and four years will be deported to their home country unless they can make a strong case based on the European Convention on Human Rights (ECHR). A sentence of more than four years will lead to automatic deportation. But what would happen if the offender has a diagnosed mental illness? On face value, it would seem entirely logical that if it can be proven that a migrant who has committed a crime in the UK due in part to their psychological impairment, they should be afforded some leniency, and hence, not deported. Unfortunately, with the backdrop of the UK’s ongoing hostile environment approach to migrants, this is not necessarily the case, as we will explore in this article.
Can a Diagnosis of a Mental Illness Provide an Exception to Automatic Deportation?
The Home Office’s guidance [PM1] on deportation for offenders with mental disorders states the following, “Foreign criminals held under one of the specified provisions of the Mental Health Act 1983 or associated legislation are not subject to automatic deportation…. Mentally disordered offender cases are dealt with by a specialist team in Criminal Casework”. This confirms that a non-EEA migrant offender will only be exempted from deportation if they have been sectioned under the mental health act, and this will only prevent automatic deportation. If the individual has not been sectioned, then it is unlikely that a diagnosis of mental impairment would be enough to block deportation. Furthermore, even if the person had committed a crime leading to a sentence of more than four years, if the court deems it would be ‘conducive to the public good’, automatic deportation would still stand.
In order for a migrant offender to remain, there would need to be ‘very compelling circumstances.
What is Meant by ‘Very Compelling Circumstances’?
Section 398C of the immigration rules states, “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 in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A”. Sections 399 and 399A of the immigration rules outline grounds on which an offender with a sentence of less than four years may rely, including on the basis of their parental relationship to a child in the UK, their relationship to British or settled person in the UK, or if the person has been in the UK most of their life and is socially and culturally integrated.
As such, in order for a migrant offender facing automatic deportation (due to their sentence of four or more years) to argue they have very compelling circumstances which mean they should remain, they must go beyond the grounds in sections 399 and 399A.
The case of KE (Nigeria)  EWCA Civ 1382[PM2] involved a Nigerian national who arrived in the UK in 1992, aged 11 years. While in the UK, he committed a number of offences including burglary, affray, and assault, and was subsequently handed a deportation order. The judge in the case found that there were ‘very compelling reasons’ to prevent his deportation:
“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”.
In another case, (El Gazzaz  EWCA Civ 532), outlined by Freemovement.org.uk, a deportation order was upheld by the same court. In this case, a man of Egyptian origin with schizoaffective disorder, psychosis and pronounced anxiety, who had committed a firearms offence had been handed a deportation order. During the course of his case, he had been assessed as unfit to give evidence but not exempted from deportation because the court reasoned he could access suitable healthcare in his home country of Egypt. The judge in the case concluded[PM3] , “The Tribunal found that the points made by reference to the appellant's medical condition fell to be qualified somewhat by the facts that appropriate medication would be available in Egypt, as the Tribunal was entitled to find on the evidence, and there was in place in Egypt a system for treatment of people with mental illness which, even though it might not be of the same standard as is available in the NHS, would mean that he would get appropriate treatment if he needed it…. But there is no indication that Egyptian society and its medical system would fail to pick up the appellant as a person suffering from serious mental illness, if that were the result, and then supply appropriate medical assistance much as society and the health system in the United Kingdom would do, without any necessity for self-referral”.
On this basis, where it is necessary to provide evidence of very compelling reasons to stop the deportation of a non-EEA national with a mental illness, much will depend on the health and care resources available in the individuals home country. If it can be shown that sending a person back to their home country may cause them harm because their illness cannot be treated or will deteriorate, this may be sufficient to prevent deportation.
A diagnosis of mental illness may hold little sway when it comes to halting the deportation of a migrant who has committed a crime in the UK. Much will depend on the facts of the case, whether the person was sectioned under the mental health act, how long the sentence was, and whether very compelling circumstances can be identified. It is, therefore, essential to engage the services of expert immigration Solicitors who can provide the guidance and support needed in such a case.