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Hospital order not a conviction for purpose of foreign criminal definition

Hospital order not a conviction for purpose of foreign criminal definition

The technical point, or ratio, of MZ (Hospital order: whether a ‘foreign criminal’) [2020] UKUT 225 (IAC) is that a hospital order under section 5(1)(b) of the Criminal Procedure (Insanity) Act 1964 is not a criminal conviction for the purposes of the definition of a ‘foreign criminal’ under Part V of the 2002 Act. Given that the sentencing judge explicitly said “This is not a conviction” it seems …surprising*… that officials at the Home Office tried to argue the point.

On the facts, the appellant won his case:

I find that it is apparent from the judge’s findings that there exist very significant obstacles to the integration in Pakistan of this young appellant, who has resided in the United Kingdom for many years, who suffers from a serious schizoaffective disorder the management of which requires continuous treatment and monitoring and who has nobody in Pakistan able or willing to assist him.

The official headnote:

An individual sentenced to a hospital order following a finding under section 5 (1) (b) of the Criminal Procedure (Insanity) Act 1964 that he ‘is under a disability and that he did the act or made the omission charged against him’ is neither subject to section 117C of the 2002 Act (as amended) nor to paragraphs A398-399 of the Immigration Rules. He is excluded from the statutory provisions by section 117D(3)(a) and from the Immigration Rules concerning deportation.

[Note: The difference between OLO and Andell to which the judge refers at paras [10] to [13] is now resolved in SC (paras A398-339D: ‘foreign criminal’: procedure) Albania [2020] UKUT 187 (IAC).]

The note at the end there does not actually feature in the determination. Neither the judge at the FTT nor UTJ Lane were made aware of the SC case, which had already resolved an earlier …tension in tribunal jurisprudence.

*Not that surprising now I think about it.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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