Anufrijeva v Southwark London Borough Council; R (N) v Secretary of State for the Home Department; R (M) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice |
| Judgment Date | 16 October 2003 |
| Neutral Citation | [2003] EWCA Civ 1406 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: A2/2002/2709; C1/2003/0402; C1/2003/0705 |
| Date | 16 October 2003 |
[2003] EWCA Civ 1406
The Lord Chief Justice of England and Wales
The Master of the Rolls and
Lord Justice Auld
Case Nos: A2/2002/2709; C1/2003/0402; C1/2003/0705
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon Mr Justice Newman
The Hon Mr Justice Silber
The Hon Mr Justice Richards
Mr Richard Clayton, QC and Nicola Braganza (instructed by Ole Hanson & Partners) for the Appellant Anufrijeva
Mr Joshua Swirsky (instructed by Southwark Legal Services) for the Respondent London Borough of Southwark
Mr Richard Clayton, QC and Stephanie Harrison (instructed by TRP) for Respondent 'N'
Mr Philip Sales and Mr Sean Wilken (instructed by the Treasury Solicitor) for the Appellant Secretary of State for the Home Department
Mr Andrew Nicol, QC and Mr Duran Seddon (instructed by Refugee Legal Centre) for the Appellant 'M'
Mr Philip Sales and Mr Jason Coppel (instructed by the Treasury Solicitor) for the Respondent Secretary of State for the Home Department
This is the judgment of the Court
THE SIGNIFICANCE OF THESE APPEALS
This judgment relates to three appeals. They have been heard together because they provide this court with its first opportunity to consider in detail the power of the courts to award damages under the Human Rights Act 1998 (" HRA"). They raise a number of common issues of importance.
The three appeals have the following features in common. Each involves a claimant or claimants who came to this country to seek asylum. This common feature does not bear critically on the issues that we have to resolve. Each claimant complains of a failure by the defendants to comply with a public law duty imposed by statute under which they contend they were entitled to receive benefits or advantages. Each complains that this failure was attributable to maladministration. Each claims that the maladministration and its consequences constituted a breach of the claimant's rights under Article 8 of the European Convention on Human Rights ("the Convention"). Each claims to be entitled to damages under the HRA in respect of the breach in question.
None of these appeals involves an allegation that action was taken by either of these defendants which infringed Article 8. Each alleges that there was a failure by the relevant defendant to take the positive action that was necessary to ensure that the respective claimant's rights under Article 8 were respected.
The common issues of principle raised by these appeals are as follows:
i) What is the nature of Article 8 rights?
ii) When does a duty arise under Article 8 to take positive action?
iii) In what circumstances does maladministration constitute breach of Article 8?
iv) When should damages be awarded?
v) On what basis should damages be assessed?
vi) What procedures should be followed to ensure that the costs of obtaining relief are proportionate to that relief?
THE CLAIMS
We propose to consider the issues of principle before applying these to the individual appeals. In order to place the discussion in context it may, however, be helpful to give a short summary of the claims advanced in each case.
Ala Anufrijeva: The claimants are members of a family who claim that their local authority failed to respect their private and family life, contrary to Article 8. The basis of the claim is that the local authority failed to discharge their duty, under section 21 of the National Assistance Act 1948, to provide them with accommodation that met the special needs of one member of the family, with the result that the quality of family life was drastically impaired.
N: The claimant, an asylum seeker, arrived in this country from Libya on 1 February 2000. He was granted refugee status on 3 May 2002. He complains of maladministration in the handling of his asylum application which caused much of this delay, of receiving inadequate financial support during much of this period and of psychiatric injury caused by the stress of his experience. He contends that these matters infringed his Article 8 rights.
M: The claimant is an asylum seeker from Angola. His right to remain as a refugee was recognised in January 2001. He then applied for permission for his family, whom he had left behind, to be admitted to the country so that he could be reunited with them. The family were not given permission to enter until the end of November 2002. The claimant contends that much of this delay was attributable to maladministration and that it infringed his right to respect for family life under Article 8.
THE NATURE OF ARTICLE 8 RIGHTS
Article 8 of the Convention provides:
"Article 8 —Right to Respect for Private and Family Life"
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others."
In London Borough of Harrow v Qazi [2003] UKHL 43 Lord Bingham observed at paragraph 8 that the Convention was an attempt to identify the rights and freedoms most central to the enjoyment of human life in civil society and to give those rights and freedoms an appropriate measure of protection. Article 3 of the Convention provides protection against inhuman and degrading treatment. What is the nature of the right to respect for private and family life, the home and correspondence afforded by Article 8? In essence it is the right to live one's personal life without unjustified interference; the right to one's personal integrity. In Bensaid v United Kingdom (2001) 33 EHRR 10 the claimant contended that his Article 8 rights would be infringed if he were expelled from this country because of the likely effect that this would have on his mental health. At paragraph 46 the ECtHR had this to say about Article 8:
"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity."
In Pretty v UK (2002) 35 EHRR 1 the issue was whether Article 8 required that the claimant should be permitted to enlist the aid of her husband to commit suicide when immobilised in the final stages of motor neurone disease. At paragraph 61 the ECtHR made the following comment about the ambit of Article 8:
"As the Court has had previous occasion to remark, the concept of "private life" is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established any such right to self determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees."
The reference to the right to develop relationships with other human beings demonstrates the link between the right to private life and the right to family life. If members of a family are prevented from sharing family life together, Article 8(1) is likely to be infringed.
In M the claim is for delay in providing the permission that would enable the sharing of family life to take place. In Anufrijeva the claim is for failure to provide the claimants with the facilities that would enable them to enjoy a satisfactory quality of family life. In N there is a claim for subjecting the claimant to stress resulting in psychiatric injury and also for failing to provide the support necessary to achieve a basic quality of personal life. In each case it is possible to understand the basis upon which the claim is contended to fall within the ambit of Article 8. Each case involves an allegation that the defendant was at fault in failing to take positive action, which would have averted the adverse consequences of which complaint is made.
WHEN DOES A DUTY ARISE UNDER ARTICLE 8 TO TAKE POSITIVE ACTION?
We now turn to the issue as to when Article 8 can impose an obligation on the State to take positive action to secure enjoyment of the rights that Article 8(1) requires should be respected. The jurisprudence of the ECtHR provides some limited assistance with this question.
In Abdulaziz and others v United Kingdom (1985) 7 EHRR 471 the applicants, who were permanently settled in the United Kingdom, alleged that their right to respect for family life was infringed because their...
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