B and another v Home Office
| Jurisdiction | England & Wales |
| Judge | MR SALTER QC |
| Judgment Date | 16 February 2012 |
| Neutral Citation | [2012] EWHC 226 (QB) |
| Date | 16 February 2012 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ10X04282 |
[2012] EWHC 226 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Mr Richard Salter Qc
Sitting As A Deputy Judge of The Queen's Bench Division
Case No: HQ10X04282
The Claimants appeared in person
Mr Navjot Atwal (instructed by the Treasury Solicitor) appeared for the Defendant
Hearing dates: 25, 28, 29, 30 November, 1 December 2011, 16 February 2012
Introduction
This is a claim against the Home Office for damages for what the Claimants assert are breaches of the rights of the First Claimant as a citizen of the European Union, and of the Second Claimant as a family member of such a citizen. Both Claimants also claim damages for what they assert have been breaches by the Home Office of their right to respect for their private and family life.
The Claimants' principal complaint relates to the period of time taken by the Home Office to issue an EEA residence card 1 to the Second Claimant. The Claimants say that the Second Claimant, both as the unmarried partner of the First Claimant and as the mother of another citizen of the Union, their daughter, was entitled to be issued with such a card promptly upon application. It is the Claimants' case that the Home Office's prolonged failure to give effect to that entitlement has caused substantial and unlawful interference with the lives of the Claimants and of their daughter. In particular, they say that the Second Claimant has thereby been prevented from working lawfully in the United Kingdom, where the Claimants have made their home together, and so has been prevented from providing financial support to the Claimants' household. That, in turn, has prevented the First Claimant from completing his studies to qualify as a solicitor, and has wasted the money that he has so far spent on those studies (which he will now have to repeat). In effect, the Claimants say that both of their lives have been put on hold for more than 2 1/2 years, while they have been waiting for the Home Office to comply with its obligations.
The Claimants rely upon the totality of the 953 day period from 26 th March 2008, the date when the Second Claimant's applied to the Home Office for her EEA residence card, until 5 th November 2010, the date when her EEA residence card was finally issued. However, the Claimants particularly complain of the Home Office's delay during the 3 1/2 month period after 15 th July 2010, the date on which the Home Office gave a formal undertaking to an Immigration Judge in the Upper Tribunal that it would issue the Second Claimant with the EEA residence card for which she had applied. The Claimants also complain of the Home Office's conduct in imposing upon the Second Claimant reporting and other conditions of bail when she returned to the UK in February 2010 after spending the Christmas and New Year holiday season overseas, and in refusing promptly to remove those conditions even after her right to reside in the UK had been formally acknowledged by the giving of this undertaking.
The Claimants rely upon 4 causes of action for their claims:
First, they say that the conduct of the Home Office failed to give effect to their rights under Articles 20 and 212 of the Treaty on the Functioning of the European Union (the "TFEU")3 and/or under Articles 7, 8 and 10 of Directive 2004/38 EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely1 In practice, an EEA residence card is not always a card.It often takes the form of an endorsement in the holder's passport (which is sometimes referred to as a 'vignette').Alternatively, it may sometimes be a separate card or document called an 'immigration status document'.2 See paragraph 55 below.3 OJ 2010 C83/47.within the territory of the Member States ("the Citizens' Directive")4 and/or Regulations 12 and 17 of The Immigration (European Economic Area) Regulations 2006 (the "2006 Regulations")5, and that they are accordingly entitled to damages for breach of statutory duty.
Secondly, they say the conduct of the Home Office amounted to misfeasance in public office, entitling them to damages in tort.
Thirdly, they say that they are entitled to compensation or damages for breach by the Home Office of the undertaking which it gave on 15th July 2010.
Finally, they say that the conduct of the Home Office was incompatible with their right under Article 8 of the European Convention on Human Rights to respect for their private and family life, and was so unlawful under the Human Rights Act 1998 s 6(1). They accordingly claim damages under s 8(1) of that Act.
On 17 th November 2011, Cranston J ordered that the Claimants should be identified only by their initials. In this judgment, I shall refer to the First Claimant as "Mr B", to the Second Claimant as "Ms C", and to their daughter as "D".
At the hearing before me, Mr B represented himself and (with my permission) Ms C. Ms C was present in court, with D, throughout the hearing. Although he is not yet professionally qualified, Mr B has a degree in European law, and I am grateful to him for his clear and moderate presentation of the Claimants' case. Mr B also gave evidence on behalf of both Claimants. The Home Office was represented by Mr Navjot Atwal of counsel, for whose thoughtful and realistic submissions I am likewise grateful. The evidence called on behalf of the Home Office came from Mr Stephen Walker, the Senior Home Office Presenting Officer who gave the 15 th July 2010 undertaking on behalf of the Home Office, and from Mr Peter Iling, who has been the case officer primarily responsible for dealing with Ms C's case on behalf of the Home Office from 21 st May 2010 onwards.
The Background Facts
The principal facts which form the background to this action were largely uncontroversial. As they appear from the documents which I have seen and from the evidence which has been given before me, I find the relevant facts to be as follows.
Mr B is a Swedish citizen, and therefore a citizen of the European Union. Apart from a period of study at the University of Ghent during the academic year 2002–3, Mr B has lived in the United Kingdom since about 1996. Ms C, who is a Bolivian citizen, came to the UK initially in May 2005. On 27 th July 2005 she applied in La Paz for a visa to study in the UK. This was granted on 28 th January 2006 for a period of 1 year, and was renewed for a further year until 2008.
Mr B and Ms C met shortly after her arrival in the UK. They quickly formed an attachment, and have lived together in or near London since about November 2006.
On 26 th March 2008, Ms C applied to the Home Office on form EEA2 for the grant of an EEA residence card. The ground specified in her application as entitling her to the grant of an EEA residence card was the existence of a durable relationship between herself and Mr B. Mr B was said to be employed as a Manager and Editor by a company called Capital & General Consultancy (UK) Limited. Ms C also enclosed with that application D's birth certificate and D's passport, which showed that D (who was then about 10 months old) was also a Swedish citizen, and therefore a citizen of the European Union in her own right.
The Home Office replied on 17 th April 2008, providing a Certificate of Application. However, that letter did not reach Ms C, as the address to which it was sent by the Home Office omitted the number of the Claimants' flat and gave the wrong postcode.
Ms C sent the Home Office a letter dated 26 th June 2008, informing the Home Office that she had not yet received any "confirmation letter", even though "I know for a fact that you have received the application as I have made several calls making enquiries about the application". In that letter, Ms C also asked for the return of her own and D's passports, as she planned to go on holiday. The Home Office's response, dated 3 rd September 2008, indicated that the passports were being returned as requested, and pointed out that Ms C and D would need an EEA family permit to re-enter the UK, were they to leave. However, it did not give the requested confirmation, or any information about the progress of Ms C's application.
In autumn 2008, Mr B took up new employment as a part-time lecturer in law at the University of Westminster.
On 28 th October 2008, Mr B wrote to the Home Office, pointing out that 9 months had by then passed since Ms C's application without any "acknowledgement letter" being received. He informed the Home Office of his change of occupation, and repeated Ms C's request for information as to the progress of her application.
On 17 th February 2009, almost 11 months after the date of Ms C's application, the Home Office finally wrote to Ms C, asking her to provide further documents and information to prove that Mr B was currently exercising Treaty rights in the UK, and that she and Mr B had been living together in a durable relationship for at least 2 years. Unfortunately, although that letter was correctly addressed, it also failed to reach Ms C.
On 2 nd April 2009, Mr B telephoned the Home Office, enquiring again what was happening to Ms C's application. He was, in turn, asked if he and Ms C had received the Home Office's letter dated 17 th February 2009. When he said that he had not, he was told over the telephone by the Home Office about the documents that were required. In the course of that...
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