FXJ v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 20 June 2022 |
| Neutral Citation | [2022] EWHC 1531 (QB) |
| Docket Number | Appeal No: QA-2021-000164 |
| Court | Queen's Bench Division |
[2022] EWHC 1531 (QB)
Mr Justice Choudhury
Appeal No: QA-2021-000164
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HHJ BAUCHER
Royal Courts of Justice
Strand, London, WC2A 2LL
D Chirico & A Nicolau (instructed by Wilsons Solicitors LLP) for the Appellant
R Cohen (instructed by Government Legal Department) for the Respondents
Hearing date: Friday 11 March 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 11am on Monday 20 June 2022.
The principal issue in this appeal is whether the Respondent owes a duty of care in tort to the Appellant in circumstances where a delay before withdrawing an appeal against a decision as to immigration status had exacerbated the Appellant's mental health condition thereby leading to his hospitalisation. Following a trial on liability, HHJ Baucher (“the Judge”) sitting in Central London County Court held, inter alia, that no such duty was owed and dismissed the Appellant's claims for damages in negligence. Claims for misfeasance in public office and under s.3 of the Human Rights Act 1998 were also dismissed. The Appellant appeals with permission against those decisions.
Factual Background
The trial proceeded on the basis of agreed facts, although there was some live remote evidence mainly for the purpose of exhibiting documentation.
The Appellant is a Somali national who has a well-founded fear of persecution in Somalia and has consequently been recognised as a refugee in the UK. He suffers from serious mental illness, including paranoid schizophrenia. The Appellant was convicted of robbery in 2007 and sentenced to 18 months' imprisonment, as a result of which the Respondent decided to make a deportation order against him. That deportation order was made once the Appellant's appeal rights had been exhausted, on or around 6 February 2009.
On 4 March 2009, the Appellant made further representations requesting that the Respondent revoke his deportation order. The Respondent refused those representations on 27 January 2014. That was the Respondent's final determination in this matter before litigation ensued.
The Appellant exercised his statutory right of appeal from that decision to the Immigration and Asylum Chamber of the First-tier Tribunal (“FTT”). The responded resisted the appeal.
On 15 May 2015, the FTT dismissed the Appellant's appeal. However, permission was granted to appeal to the Upper Tribunal (“the UT”).
On 16 October 2015, the UT set aside the FTT's decision on the ground that it contained a material error of law, and set the matter down to be reheard in the UT. In directing the rehearing, the UT observed that it was “clear from the medical evidence that any ongoing delay in resolving this case is likely to be detrimental to the appellant's mental health”.
The rehearing took place very promptly on 16 November 2015, and the UT allowed the Appellant's appeal by a decision promulgated on 4 December 2015. In an internal post-hearing note, the Respondent had acknowledged that the appeal would be allowed, in part on the basis of evidence which the Respondent had herself provided about the likely treatment in Somalia of people suffering from serious mental illness.
By an application dated 17 December 2015, the Respondent sought permission to appeal the UT's decision, first from the UT itself. That application was refused by the UT on 5 January 2016. The Respondent was entitled to renew its application for permission to appeal directly to the Court of Appeal. The deadline for doing so was 10 February 2016. That deadline expired without any application to the Court of Appeal being lodged.
On 19 February 2016, the Appellant's solicitors entered into correspondence with the Respondent requesting that the Appellant be granted settled status “forthwith” following his successful appeal, and reminded the Respondent that the Appellant “suffers from serious mental health problems and the delay in granting him status is likely to have a detrimental effect on his mental health”. In the absence of any substantive response, the Appellant's solicitors issued a pre-action letter on 1 March 2016.
On 15 April 2016, some two months after the expiry of the time limit, the Respondent filed an Appellant's Notice with the Court of Appeal with an application for an extension of time. The Judge's detailed findings as to the communications within the Respondent's department leading up to this point need not be set out in full here. Suffice it to say that Mr Chirico's summary of those findings as tending to demonstrate an “apparent breakdown in communication within the Respondent's offices, and between the Respondent and her legal representatives”, is not unfair.
Although an appeal was lodged, file notes dated 26 and 27 April 2016 record the views of one of the Respondent's officers that “no further challenge [was] proposed” and that a “final sign off [was awaited] from Mike Wells”. It appears therefore that the Respondent was considering withdrawing the appeal.
The appeal was reviewed by Mr Wells on 10 May 2016. Mr Wells appears to be a senior Home Office official with authority to “sign off” on the appeal, although his precise title is unclear. He concluded as follows:
“I agree that we should not pursue this case. I have previously expressed concerns about the Home Office position with regards to Somalis with a mental illness. The UTT finding – extract below – is clear (a) that those with mental health disorders are often subject to humiliating conditions including that they are often chained; and (b) that the chaining of mental health patients amounts to inhuman and degrading treatment.
As I have previously stated, unless we wish to challenge one or other of these findings it follows that Somalis whom we accept have serious mental health issues cannot normally be returned. There would have to be exceptional factors such as a strong family network in the Mogadishu area to have even a chance of overcoming that presumption that Article 3 applies.
Given that, where we accept that a Somali has serious mental health issues and does not have a strong family support network in Mogadishu, I do not understand why we would not grant leave nor why we would incur taxpayers' money on futile attempts to deport.”
Mr Wells' review resulted in the withdrawal of the appeal very shortly thereafter on 13 May 2016. On 19 May 2016, the Respondent wrote to the Appellant's solicitors confirming that the claimant would be granted leave to remain for 5 years. The Respondent granted the Appellant refugee status on 23 July 2016.
During the period leading up to the withdrawal of the Respondent's appeal, the Appellant's mental health had deteriorated, and on 18 May 2016 he was compulsorily hospitalised pursuant to s.2 of the Mental Health Act 1983. He remained in hospital for 43 days.
The Appellant lodged proceedings against the Respondent in the County Court in July 2017, seeking damages for breach of duty on the basis that:
i) The Respondent has a duty of care to act with reasonable competence, diligence and in good faith to make decisions without unreasonable delay and to have regard to any particular vulnerabilities of any individual applicant;
ii) The Respondent was also required to act in compliance with the European Convention on Human Rights (“ECHR”);
iii) In exercising that duty of care to the Appellant, the Respondent was required to have regard to his vulnerabilities, including, in particular, his mental illness and his status as an asylum-seeker.
iv) In breach of that duty of care, the Respondent failed to take reasonable care in reaching its decisions as to the Appellant's status. In particular, the Respondent had failed to complete the process of reaching an informed decision on whether to appeal against the UT's decision, and implementing the UT's decision, with reasonable competence and without unreasonable delay, having regard to the Appellant's circumstances.
v) Further or in the alternative, the Respondent acted illegally and with reckless indifference to the illegality of its actions and/or with reckless indifference to the probability of causing injury to the claimant.
The Judgment below
The question before the Judge was whether the Respondent was liable in tort, misfeasance or under the Human Rights Act 1998 for the harm caused to the Appellant.
The Judge dealt first with the question of whether any duty of care was owed by the Respondent to the Appellant.
The Judge considered that in light of the pleaded issues, the first matter for her determination was whether the claim amounted to a claim by one litigant against another in respect of the conduct of that litigation or was based upon a duty of care arising in the exercise of statutory responsibility. The Judge considered that the “true relationship” between the parties was one of “litigation” [57]; that the Respondent had “determined the claimant's immigration status on 27 January 2014”, following which “the entire matter rested with the progress of the claimant's appeals against that decision and its ultimate determination in the courts” [59]. The Judge considered that the “whole tenor of the claimant's pleaded claim and the allegations of breach of alleged duty related entirely to the litigation process” and that there is “not one single allegation challenging the actual original decision to deport because that was the substance of the litigation” [62]. The Judge “rejected the [Appellant's] contention that the conduct of the litigation and the conduct of...
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