Atapattu Liyanaralalage Luck Saman Atapattu v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Stephen Morris QC
Judgment Date27 May 2011
Neutral Citation[2011] EWHC 1388 (Admin)
Docket NumberCase No: CO/7906/2010
Date27 May 2011

[2011] EWHC 1388 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Stephen Morris QC

Sitting as a Deputy Judge of the High Court

Case No: CO/7906/2010

The Queen on the application of

Between:
Atapattu Liyanaralalage Luck Saman Atapattu
Claimant
and
The Secretary of State for the Home Department
Defendant

Bojana Asanovic (instructed by Messrs Sam & Co, Solicitors) for the Claimant

John Jolliffe (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 26 November, 9 and 16 December 2010

Mr Stephen Morris QC

Introduction

1

The Claimant, Luck Saman Atapattu, ("Mr Atapattu") is a Sri Lankan national, now aged 45. By this action for judicial review, he seeks to recover damages from the Secretary of State for the Home Department ("the Defendant") for her failure, between January and August 2010, to issue him with entry clearance (i.e. a visa) to the United Kingdom and for the wrongful retention of his Sri Lankan passport.

2

On 21 July 2010 he commenced this action, complaining of the Defendant's continuing failure, from January 2010 onwards, to grant him a visa to the United Kingdom for the purpose of pursuing his studies towards a ship's master qualification at the Blackpool and the Fylde College in Blackpool ("Fylde College"). He sought an order directing the Defendant to grant entry clearance and to return his passport with a visa endorsement. In addition he claimed damages.

3

By the time of the oral permission hearing, the Defendant had given an undertaking to issue to Mr. Atapattu a student visa and to return his passport, once Mr. Atapattu had provided necessary documents. By order dated 23 August 2010 Mrs Justice Dobbs accordingly refused permission in respect of the grant of a visa and the return of his passport. At the same time, upon the giving of such an undertaking, she granted permission to pursue the claim for damages and gave directions for its determination. The claim for damages then came before Mr. Justice Treacy on 21 October 2010 who adjourned the hearing and gave further directions. In this way, Mr Atapattu's claim for damages now falls for determination by this Court. It is agreed by the parties that what falls for determination now are all issues of fact and law on the question of liability for damages, with quantum to be left over until after my ruling. In fact, as became apparent in the course of argument, issues of causation also fall to be left over. My conclusions are stated at paragraph 176 below.

The claim for damages in summary

4

Mr. Atapattu works in the merchant navy as a chief officer. In the latter part of 2008, he took steps to obtain qualification as a ship's master and sought to come to the UK to study at Fylde College on a course due to commence in September 2008. His application for UK entry clearance for that purpose was refused, twice. The Asylum and Immigration Tribunal ("AIT") then allowed his appeal against those refusals, and in January 2010, he re-applied for entry clearance, by submitting his passport to the British High Commission in Colombo, Sri Lanka. However, despite being chased persistently, the Defendant did not respond at all and neither granted him entry clearance nor returned his passport. The passport was not returned until late August 2010 after the commencement of these proceedings. Not only did the Defendant not respond to Mr. Atapattu, but, at no time since, has the Defendant given any explanation as to what happened to his passport or visa application during that period. The Defendant simply accepts that she did not reply.

5

Mr. Atapattu contends that the Defendant's conduct in the period from January to August 2010 comprised two distinct elements, giving rise to two distinct consequences. First, the Defendant's retention of his passport meant that he was not able, during that time, to pursue employment in the merchant navy. This in turn caused actual loss of earnings as a chief officer. (The claim here is put at about £4000 per month for at least 6 months). Secondly, the failure of the Defendant to grant him a visa meant that he could not pursue his course of study in the UK, and that prevented him from qualifying, and being employed, as a ship's master. That in turn prevented him for enhancing his earnings. (The claim here is for enhanced earnings of £1000 per month). Mr. Atapattu claims damages for these losses on the following three legal bases.

6

First, he claims in conversion. Mr. Atapattu contends that the Defendant is liable for retaining his passport in a manner which constituted a wrongful interference with goods under s.1 of the Torts (Interference with Goods) Act 1977. On this legal basis, Mr. Atapattu seeks damages in respect of his actual loss of earnings.

7

Secondly, he claims in negligence. Mr. Atapattu contends that, in the particular circumstances of this case, the Defendant owed him a common law duty of care and that, in failing to grant, or at least to consider, his visa application, made on 13 January 2010, at all or within a reasonable time, the Defendant breached that duty. Although not entirely clearly delineated by his counsel, Ms. Asanovic, the primary loss said to flow from this breach, is the loss of enhanced earnings that Mr. Atapattu would earn, or would have earned, upon employment, with the benefit of a master's qualification. In so far as it is said that the breach of duty also comprised the failure to return his passport, then the claim for damages for negligence also covers actual loss of earnings, to the same extent as regards the claim for conversion.

8

Thirdly, he claims damages under s.8 Human Rights Act 1998 ("the 1998 Act") and puts his case in two ways. First, it is said, the Defendant's failure to grant a visa infringed his right to respect for his private life under Article 8 ECHR by interfering with his ability to enhance his career prospects (and in this way his personal development). Secondly, he contends that the refusal and/or failure by the Defendant to return his passport deprived him of his ability to work in the merchant navy and that this constituted a distinct infringement of his right to a private life as an interference with his right to work and/or his status. He claims damages under Anufrijeva principles. At a late stage, Mr. Atapattu sought to add in a claim that the above conduct also infringed his rights under Article 1 Protocol 1 ECHR.

9

Originally, in his Amended Grounds served on 17 August 2010 and in opening written submissions, Mr. Atapattu sought to rely upon two further legal bases for the claim for damages: namely, breach of statutory duty and breach of legitimate expectation. However, in the course of oral argument, Ms. Asanovic indicated that Mr. Atapattu no longer pursued either as a basis for damages.

Legislative framework

10

Section 3(1) of the Immigration Act 1971 (" IA 1971") provides that a person who is not a British citizen shall not enter the UK unless given leave to enter and that he may be given leave to enter (or to remain) either for a limited or an indefinite period, and subject to conditions. By s.4 IA 1971, the power to give or refuse leave to enter is exercised by immigration officers. S.33 IA 1971 defines "entry clearance" as a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence or the requisite evidence of a person's eligibility, though not a British citizen, for entry into the United Kingdom.

11

Entry clearance (including the grant of a visa) and its relationship with leave to enter is dealt in rules 24 to 30 of the Immigration Rules ("HC 395") and the Immigration (Leave to Enter and Remain) Order 2000. Normally the two concepts are distinct: the effect in law of entry clearance is that it is evidence of eligibility for entry: rule 25. However, in certain circumstances, entry clearance can take effect as leave to enter and the holder will not require leave to enter on arrival: see rule 25A and Article 3 of the 2000 Order. In the present case, the entry clearance sought would have fallen into this category. Rule 26 provides that an application for entry clearance will be considered in accordance with the provisions of HC 395 governing the grant or refusal of leave to enter. Rule 27 provides that an application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision.

12

At the time of the Claimant's application for entry clearance in September 2008, the relevant rules for leave to enter the UK as a student were contained in rules 57 to 61 HC 395. Rule 57 set out requirements to be met by a person seeking leave to enter UK as a student. Rule 320 set out a number of grounds for refusal of leave to enter or entry clearance, including false representations, non-disclosure and deception. Since 31 March 2009 entry as a student has been governed by the points based system at paragraphs 245ZT to ZY under Tier 4 (General Student). These were the rules in force at the time of the re-submitted application at the end of January 2010. I address below the relevant principles governing the effect of a successful appeal against an immigration decision.

The Facts

Approach to evidence and facts

13

The current judicial review procedure is not entirely satisfactory for what is now a claim for damages, involving potentially the determination of issues of fact. There have been no pleadings, no disclosure and no oral evidence. Neither party has suggested that these steps should be taken. I thus proceed as best I can on the materials before me, comprising written grounds and submissions, Mr. Atapattu's witness statements and a limited number of contemporaneous documents.

14

The following facts are based largely on material submitted by Mr....

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6 cases
  • Young v Young
    • United Kingdom
    • Family Division
    • 3 February 2012
    ...implications of retaining a passport under article 8 were recently considered by the Administrative Court in R (Atapattu) v SSHD [2011] EWHC 1388 (Admin). In that case, the British High Commission in Sri Lanka had failed to return the claimant's passport, despite repeated requests for its ......
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    • United Kingdom
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    ...were discussed by Mr Stephen Morris QC (as he then was) sitting as a Deputy Judge in the case of R (Atapattu) v Home Secretary [2011] EWHC 1388 (Admin) at paragraphs 60–89. At 60–61, he said the following: “60. “Wrongful retention Conversion can be committed in a myriad of circumstances. T......
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    • Family Division
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    ...Bucuresti v Jipa Case C-33/07 [2008] ECR I-5157, ECJ. R (on the application of Atapattu) v Secretary of State for the Home Dept [2011] EWHC 1388 (Admin), [2011] All ER (D) 20 S v S (ancillary relief: preliminary hearing of oral evidence)[2004] EWHC 2376 (Fam), [2005] 1 FCR 494, [2005] 1 FLR......
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    ...that HMRC had a duty of care under common law R (on the application of Atapattu) v Secretary of State for the Home Department [2011] EWHC 1388 (Admin). Again the HC dismissed this as it would lead to an abuse of process. Finally the question of estoppel was dealt with referring to Virgin At......
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