Hans Husson v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Lord Justice McCombe,Lady Justice Nicola Davies |
| Judgment Date | 10 March 2020 |
| Neutral Citation | [2020] EWCA Civ 329 |
| Date | 10 March 2020 |
| Docket Number | Case No: C2/2019/1561 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 329
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Upper Tribunal Judge King
JR/6642/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lady Justice Nicola Davies
and
Lady Justice Simler
Case No: C2/2019/1561
Mr Russell Wilcox (instructed by Dylan Conrad Kreolle Solicitors) for the Appellant
Mr Richard Evans (instructed by Government Legal Department) for the Respondent
Hearing dates: 18 February 2020
Approved Judgment
Introduction
Mr Husson, a Mauritian national, was granted limited leave to remain in the UK in May 2016, with the right to work during his period of limited leave. A biometric residence permit (referred to below as a “BRP”) confirming his entitlement to work should have been sent to him within a matter of weeks. It was not sent to him until more than two years later. He sought to challenge the delay by an application for judicial review but was refused permission to do so. One of the questions he sought to raise on judicial review was whether the delay was unlawful and gives rise to a claim for damages. This appeal challenges the refusal to permit him to advance this case at a substantive judicial review hearing.
The impugned decision was made by Deputy Upper Tribunal Judge King (UTJ King), who refused permission at an oral hearing. His oral reasons were transcribed and approved. Subsequently in a written decision dated 17 June 2019 (which is worded differently), UTJ King set out his reasons for refusing permission, concluding so far as material: first, there is no jurisdiction to consider an action for damages for breach of a duty of care or breach of statutory duty in the circumstances of this case; and secondly, although there may be a cause of action for damages for breach of human rights, to mount such a claim it was necessary to establish a deprivation of the right to work altogether, which the appellant could not show as he had the right to work clearly endorsed on his passport. Further, on the evidence, UTJ King did not find it arguable that the appellant had established a prima facie case to support a claim for damages flowing from the loss of work.
The appellant challenges these conclusions as wrong in law. First, in relation to the human rights based claim, Mr Russell Wilcox contends on his behalf, that there was clear evidence that he was denied any real prospect of employment since his passport was not in fact endorsed with the right to work, and there was sufficient evidence of consequent financial loss to establish an arguable case. Secondly, it was arguable that the unlawful delay could found a claim for damages resulting from the respondent's negligence in issuing the BRP so late, particularly in circumstances where the appellant contends the respondent voluntarily assumed responsibility for issuing it within an agreed time-frame. Thirdly, by reference to the reasons given orally at the hearing (as set out in the approved transcript), UTJ King was wrong to exercise discretion against the appellant at the permission stage. If the application was arguable, it should have been permitted to proceed, and the decision to exercise discretion to refuse relief if appropriate, should have been taken at the substantive hearing.
The appeal is resisted. On behalf of the respondent, Mr Richard Evans now accepts that the appellant's passport was not endorsed with the grant of leave to remain or the right to work and that the passport was not a document which would have been acceptable to any employer as demonstrating the appellant's right to work. Nonetheless, and in summary, he contends that in circumstances where the appellant no longer seeks a public law remedy as part of his judicial review claim, there is no jurisdiction to award damages. In any event, he submits the judge was both entitled and correct to conclude that there was no arguable prima facie case to support a claim for damages for alleged breach of the appellant's human rights. Further, no arguable duty of care arose. Finally, the judge did not refuse to exercise a discretionary remedy. Rather, he concluded that no arguable prima facie case to support a claim for damages had been established.
Accordingly the issues on this appeal are as follows:
i) Whether there is in fact no jurisdiction to award damages in this case because no public law remedy is sought.
ii) If there is jurisdiction, did the appellant establish an arguable claim of breach of his human rights with sufficient evidence of loss to support his damages claim?
iii) Is it arguable that an actionable duty of care arises in the circumstances of this case?
iv) Did the judge refuse to exercise a discretionary remedy at the permission stage?
The Facts
The appellant is a national of Mauritius. He came to the UK as a visitor on 25 July 2004 when aged 17, and applied for (and obtained) leave to remain (“LTR”) as a student nurse, which was thereafter extended until 30 November 2007. In 2008 he applied for LTR under articles 3 and 8 of the European Convention on Human Rights (“the Convention”). His application was refused.
On 20 February 2010 he married a British citizen, Ramnial Nirvashi, and they had a British child.
The appellant challenged the refusal of LTR, seeking reconsideration and making further representations, then by means of judicial review lodged on 2 September 2013. It is unnecessary to describe the detail of the proceedings, save to say that permission was refused at each stage and they reached the Court of Appeal in late 2015.
By consent, terms having been agreed by the parties, the permission to appeal hearing was vacated and the respondent agreed to pay the appellant's reasonable costs of the judicial review proceedings. Since it is important to the appellant's case on voluntary assumption of responsibility, I set out the recitals to the consent order made by Tomlinson LJ dated 26 November 2015 as follows:
“UPON the respondent offering on the 17 November to consider the appellant's submissions of 4 December 2012 in writing;”
UPON the appellant offering on the 18 November to submit updated further representations in writing by post, such representations to be submitted within six weeks of the date of sealing this order;
UPON the respondent agreeing on the 18 November to consider the appellant's submissions of 4 December 2012 and any updated written representations referred to above and provide a new decision within three months of receipt of those further representations, absent any special circumstances;
UPON the appellant's application for oral renewal of his application for permission to appeal having been listed for the 18 November 2015;
UPON that hearing being agreed to be vacated in light of the parties' agreement…”.
Thus, the respondent agreed to reconsider the appellant's position, together with any further representations and material he wished to rely on, and provide a new decision within three months of receiving the appellant's further representations.
By letter dated 20 May 2016, within the agreed three month period, the respondent reconsidered the application and decided to grant the appellant 30 months LTR under D-LTRP 1.2 and Appendix FM (in other words, on family life grounds) of the Immigration Rules. The LTR grant was valid until 20 November 2018. Additionally, the letter of 20 May 2016 explained,
“What this means for you
A Biometric Residence Permit (BRP) will be sent to you under separate cover. We have endorsed your BRP with limited leave to remain in the United Kingdom for 30 months.
If you have not already received it, it should reach you shortly. You should receive your permit within 7 working days. A leaflet will accompany the permit which will give you more information about it.
However, if you do not receive the permit within 10 working days of the date of this letter or you find a mistake on your permit, please use the service at www.gov.uk/brp…”
The appellant's passport was returned under cover of a letter dated 26 May 2016 but he did not receive a BRP within the 7–10 day time frame set out, or at all, until very much later.
The appellant attempted to use the service identified in the letter to submit an online application for a BRP, but without success. By emails on various dates in July, August and October 2016 he notified the respondent that his BRP had not arrived. Automated email responses were sent suggesting that somebody from the BRP management unit would contact him. Again, this appears to have been without success.
By letter dated 13 November 2017, the appellant set out his failed attempts to obtain a BRP and continued, “ I have waited over a year but yet in vain, no contact or any application has been received. Without the permit, I am restricted to great work opportunities, travelling with my family and the right to qualify for my gas safety course which is pending.”
Finally, the respondent issued the promised BRP on 19 June 2018. The appellant was not given any explanation for the lengthy delay, and the respondent has still not provided any explanation for it.
The BRP states: “ Leave to Remain. Work Permitted”. It gives an expiry date of 20 November 2018 in line with the LTR grant.
The appellant lodged a judicial review claim form in the Upper Tribunal (IAC) on 8 October 2018.
Since it is relevant to the question of jurisdiction raised by the respondent, it is necessary to set out the grounds for and relief sought by the judicial review application in a little more detail. The grounds accompanying the application said the following:
i) Ground one: illegality and irrationality in failing to grant the correct leave to remain in the UK as contained in the rules and statute — in other words a challenge to...
To continue reading
Request your trial
-
Simon Aruchanga v Secretary of State for the Home Department
...recite, paragraphs 65 and 73 of Poole Borough Council v GN and Another [2019] UKSC 25 and the more recent case of R(Husson) v SSHD [2020] EWCA Civ 329. 12 The claim in negligence was amplified by Mr Hawkin for the claimant in written and oral submissions in the following 13 Mr Hawkin subm......
-
The Queen (on the Application of Mustapha) v The Secretary of State for the Home Department
...say, just as an addition to my main judgment, that I did not deal with the case of Husson v Secretary of State for the Home Department [2020] EWCA Civ 329 on Ground 4, which was not something that, Mr Malik, you relied on in your submissions, but I do not consider that that is of any assis......