ImmigrationIllegal immigrant detained in hospital under mental health powers - exceptional leave to remain refused and removal ordered - approval of mental health review tribunal not required - not constituting inhuman treatmentR v Secretary of State for the Home Department, Ex p.

X: CA (Schiemann and Tuckey LJJand Sir Swinton Thomas):7 December 2000The applicant entered the UK without leave and later was detained in a hospital by order of the secretary of state, who found him to be suffering from mental illness.

The secretary of state refused the applicant exceptional leave to remain in the UK and ordered his removal.

The applicant sought judicial review on the grounds that the secretary of state had no power to remove him without the approval of the mental health review tribunal under section 86 of the Mental Health Act 1983, and that the refusal of exceptional leave to remain was contrary to section 3 of the Human Rights Act 1988.

The judge refused the application.

The applicant appealed.Stephanie Harrison (instructed by Gill & Co) for the applicant.

Steven Kovats (instructed by Treasury Solicitor) for the secretary of state.Held, dismissing the appeal, that the secretary of state had power under sections 2(1) and 30 of the Immigration Act 1971 to remove an immigrant when his application to remain had been refused; that Parliament when enacting the 1983 Act, without circumscribing the powers under the 1971 Act, had left in existence two sets of powers either of which the secretary of state could invoke, although his power under the 1983 Act was subject to conditions prescribed by section 86; and that, therefore, the removal order was not contrary to section 3 of the Human Rights Act 1998.