In MZ (Hospital order: whether a ‘foreign criminal’) Pakistan [2020] UKUT 00225(IAC), the Upper Tribunal (Immigration and Asylum Chamber) held that a person sentenced to a hospital order following a finding under section 5(1)(b) of the Criminal Procedure (Insanity) Act 1964 that they were “under a disability and that [they] did the act or made the omission charged against [them], was not a “foreign criminal” within the meaning of section 117C(1) of the Nationality, Immigration and Asylum Act 2002. This, the Upper Tribunal held, was because they were excluded from that provision by section 117D(3)(a) of the 2002 Act, which provided that “a person subject to an order under— (a) section 5 of the Criminal Procedure (Insanity) Act 1964 … has not been convicted of an offence”.
The First-tier Tribunal (“FTT”) had concluded that MZ was not a “foreign criminal” and had therefore allowed MZ’s appeal against a Deportation Order made by the Secretary of State for the Home Department (“SSHD”). The SSHD appealed to the Upper Tribunal and argued that the FTT had erred in law as the Court of Appeal had held in KE (Nigeria) [2017] EWCA Civ 1382 that a person sentenced to a hospital order had, by virtue of sections section 117D(4)(c) and (d) of the 2002 Act, been “sentenced to a period of imprisonment” for the purposes of section 117C.
The Upper Tribunal dismissed the SSHD’s appeal, holding that KE was distinguishable as the deportee in that case had been found guilty of underlying offences. By contrast, in the instant case, MZ had been found unfit to plead, and adverse factual findings had been made against him under the special procedure in section 5(1)(b) of the 1964 Act, the effect of which was that he had been determined to have done the acts in question, but without the requisite mens rea. Accordingly, section 117D(3)(a) applied such that MZ was not a “foreign criminal”; the fact that he had been sentenced to a hospital order did not dislodge the aforementioned analysis.
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