FXJ v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Simler,Andrews LJ,Underhill LJ |
| Judgment Date | 20 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1357 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA 2022 001350 |
[2023] EWCA Civ 1357
Lord Justice Underhill
VICE PRESIDENT OF THE COURT OF APPEAL (Civil Division)
Lady Simler
and
Lady Justice Andrews
Case No: CA 2022 001350
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGS BENCH DIVISION
Mr Justice Choudhury
Royal Courts of Justice
Strand, London, WC2A 2LL
David Chirico and Angelina Nicolaou (instructed by Wilson Solicitors LLP) for the Appellants
Robert Cohen (instructed by Government Legal Department) for the Respondents
Hearing date: 4 October 2023
JUDGMENT Approved Judgment
This judgment was handed down remotely at 10.30am on 20 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal raises the question whether the Secretary of State for the Home Department, the respondent, owed a duty of care in tort to the appellant and/or breached his article 8 rights, in circumstances where a delay in making a refugee status decision in his case (during which a late appeal was withdrawn) were significant aggravating factors that rendered a relapse in the appellant's mental health more severe and longer in duration.
The appellant is a Somali national (now recognised as a refugee in the United Kingdom in consequence of his well-founded fear of persecution in Somalia). He suffers from a severe and enduring mental illness that includes psychotic and depressive symptoms pre-dating the events that are the subject of this appeal. He first entered the United Kingdom on 1 October 2001 and applied for asylum. His application was refused and his appeal dismissed, but he was granted exceptional leave to remain until 2003. A subsequent application for asylum was also refused and an appeal dismissed but meanwhile, in August 2007, he was convicted of robbery and sentenced to 18 months' imprisonment. As a result, the respondent served him with a deportation order once his appeal rights were exhausted in February 2009. The appellant did not leave but remained as an overstayer. His immigration status was finally determined by the respondent on 27 January 2014, rejecting his asylum claim. The appellant challenged the respondent's decision and was ultimately successful in his appeal on article 3 grounds.
This appeal and the underlying proceedings arise out of the events that followed the appellant's successful appeal against the respondent's refusal of asylum, starting with his asylum appeal being allowed by the Upper Tribunal by a decision promulgated on 4 December 2015, and concluding with the grant of refugee status with five years' leave to remain on 23 July 2016. In particular, the appellant challenged the respondent's delay in granting him status as a refugee from 10 February 2016 (when time for appealing the Upper Tribunal decision expired), together with the respondent's decision to initiate and then withdraw a late application to appeal to the Court of Appeal against the Upper Tribunal's decision.
The appellant brought proceedings for damages in negligence, misfeasance in public office and under section 7 of the Human Rights Act 1998. The negligence claim alleged, in summary, that the respondent owed him a common law “duty to make a prompt decision on the implementation of his successful appeal and on the grant of leave to remain in the UK”, particularly in light of his known vulnerabilities as an asylum seeker suffering from serious mental illness. He alleged that the duty was breached (among other things) by the failure to act properly and expeditiously when taking decisions regarding his immigration status and by making and then withdrawing a late application (characterised as futile) for permission to appeal out of time in the period 10 February to 23 July 2016. The claims were all denied by the respondent.
At the trial (on liability only), the parties' psychiatric experts agreed that:
“the Home Office appeal and the resultant delay in his being granted refugee status were significant aggravating factors that rendered his 2016–7 episode of schizophrenic relapse more severe and longer in duration”.
The trial judge, HHJ Baucher, dismissed all three claims. In summary:
i) Negligence: she held that no common law duty of care was owed by the respondent to the appellant in the circumstances of this case: the true relationship between the parties during the material period was one of litigation, and as a litigant the respondent owed no duty to the appellant. But even if the respondent was exercising statutory responsibility for immigration control, the pleaded allegations were directed at omissions rather than actions, and the respondent had not voluntarily assumed responsibility in any sense. No duty of care arose on this basis either accordingly.
ii) Judge Baucher found in the alternative, that there was no breach of duty: although provided with extracts from file notes passing between the respondent's officers at the material time, she did not have a complete picture of what the respondent was doing or thinking, and the file notes were made while the case was the subject of litigation and that formed part of the context. She held that there was no evidence on which she could properly find that the respondent failed to have adequate systems of communication, either internally or with legal representatives. She was not provided with details of exactly what passed internally or externally and observed that litigation privilege would inevitably apply. She also held that there was no evidence that the respondent failed to act expeditiously. Moreover, in relation to the aborted attempt to appeal out of time, the discussions about this case did not disclose any breach of duty.
iii) Misfeasance: Judge Baucher rejected this claim based on untargeted malice in the pursuit of a futile appeal against a known Somali refugee suffering from serious mental illness, and in the sending of misleading correspondence about the appeal. She held that the respondent was entitled to consider the merits of a late appeal and that none of the matters complained of in relation to the appeal, even taken at their highest, could properly be considered unlawful; nor did they disclose subjective recklessness. Likewise, she rejected the claim that the correspondence and application were misleading, but even if they were, there was no unlawful conduct.
iv) Article 8: Judge Baucher held that the respondent's delay in implementing the appellant's grant of status was not substantial. She continued:
“118. … On any consideration, five months was a short period and I am satisfied that period of delay does not engage a breach of Article 8.
119. Even if I am wrong I am satisfied, in any event that any interference would be justified. There is important public interest in immigration control, the deportation of offenders and parties being able to seek permission to appeal so as to engage Article 8(2).”
The appellant appealed unsuccessfully against all of those conclusions (judgment of Choudhury J, reported as [2022] EWHC 1531 (QB), [2023] QB 390). I shall return to both the judgment of Choudhury J and HHJ Baucher below.
There are three grounds of appeal. The first two challenge Judge Baucher's conclusion that no duty of care was owed by the respondent to the appellant in the circumstances of this case. Ground two (which is logically anterior to ground one) argues that the case falls within an exception to the general rule that public bodies do not ordinarily owe a duty of care when fulfilling their public functions, because the case is properly characterised as involving conduct that caused harm or made things worse. Ground one is only relevant if the appellant succeeds in establishing a prima facie duty on ground two. It contends that once a statutory appeal was under way (with the express function of determining the United Kingdom's responsibilities under international law), the respondent had a dual role as both primary immigration decision-maker and litigant, and so is not caught by the well-established exception identified by the judge. This is a special category of litigation which is exempt from the rule that litigants do not owe any duty of care to one another. The third ground of appeal challenges the conclusion that there was no breach of article 8. The appellant contends that the balancing exercise conducted by Choudhury J was flawed because it failed to adopt an individualised approach to the question of proportionality. There is no challenge to the dismissal of the claim for misfeasance.
The facts
The facts were helpfully set out by HHJ Baucher in her judgment at paragraphs 10 to 15 dealing with events before the material period, and paragraphs 16 to 49 dealing with the material period. They were summarised by Choudhury J and I gratefully adopt much of his summary in what follows.
As indicated, the appellant exhausted his immigration appeal rights in February 2009 at which point the respondent made an order to deport him as a foreign national criminal. On 4 March 2009, the appellant made further representations seeking revocation of the deportation order. The respondent refused those representations on 27 January 2014. That was the respondent's final immigration decision in this matter before litigation ensued.
The appellant appealed the respondent's refusal decision to the First-tier Tribunal (Immigration and Asylum Chamber) (“the FTT”). The respondent resisted the appeal. By a decision dated 15 May 2015, the FTT dismissed the appeal, but granted permission to appeal to the Upper Tribunal (“the UT”). By a decision dated 16 October 2015, the UT set aside the FTT's decision on the ground that it contained a material error of law and ordered a...
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