Home Office v Mohammed & Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Thomas,Lord Justice Hooper |
| Judgment Date | 29 March 2011 |
| Neutral Citation | [2011] EWCA Civ 351 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2010/2331 |
| Date | 29 March 2011 |
[2011] EWCA Civ 351
Before: Lord Justice Sedley
Lord Justice Thomas and
Lord Justice Hooper
His Honour Judge Oliver-Jones QC
Case No: B2/2010/2331
Claim nos. 9CV01038 and 9CV01068
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COVENTRY COUNTY COURT
Mr James Eadie QC and Mr Jeremy Johnson (instructed by Treasury Solicitors) for the Appellant
Mr Richard Drabble QC and Mr David Lemer (instructed by Alsters Kelley) for the Respondents
Hearing dates: 9 th and 10 th March 2011
Lord Justice Sedley:
The six respondents to this appeal are Iraqi Kurds who reached the United Kingdom between 1999 and 2001 and who were eventually found to be entitled to be granted indefinite leave to remain. None of them was, however, granted ILR until 2007, and the last of them was not granted it until 2009. In some cases this was because the applications had been put on hold pursuant to a priority policy which was subsequently held to be unlawful 1. In the remainder it was because the Home Office failed to implement the appropriate ministerial policy 2. In their claims for damages, all six respondents contend that but for these unlawful acts and omissions they would have been granted ILR a great deal sooner than they were.
Their claims took the form of a county court action for damages. The predicate of each claim is that the defendant 3 is a public authority within the meaning of s.6 of the Human Rights Act 1998. Having set out the acts or omissions relied on, each pleading asserted claims under four separate heads: breach of statutory duty, negligence, breach of article 5 of the ECHR and breach of article 8. As pleaded, the damage under the last head is simply described as "reducing [the claimant's] ability to develop family and private life ties in the United Kingdom", together with unparticularised special damages for loss of earnings and benefits.
The Home Secretary's application to strike out the entirety of the pleadings as unsustainable, or for summary judgment on the ground that they had no realistic prospect of success, came before His Honour Judge Oliver-Jones QC in the Coventry County Court, sitting at Birmingham. In a carefully reasoned judgment he allowed the application in relation to breach of statutory duty and article 5, but held the claims in negligence and under article 8 to be capable of succeeding and so refused to strike them out or dismiss them. Against the latter holdings the Home Secretary, represented by James Eadie QC, appeals. There is no cross-appeal by the respondents, represented by Richard Drabble QC, against the former.
Time
In the final paragraph of his written submission to this court Mr Eadie took the point that the Human Rights Act claims were brought outside the year set by s.7(5) of the Act, and that no application had been made under s.7(5)(b) for enlargement of time. In oral argument he made no mention of the point, notwithstanding that it was capable of affording a complete answer to the article 8 claims and might have been expected to be in the forefront of his case. We would have taken it that this was because the government wanted the point of substance decided; but, when asked, Mr Eadie indicated, albeit without developing the point, that he stood by it.
The introduction of potentially dispositive points by way of afterthought is not especially helpful to the court. As it happens, the limitation point is answered in the pleaded reply in two ways. The principal reply is that the breach which is complained of was in each case an act which continued until the grant of ILR or the concession of the claim; the alternative reply is that it is equitable in the circumstances to enlarge time. It seems to me that the first of these propositions is correct. In measuring time from "the date on which the act complained of took place", both the language and the purpose of s.7(5) are apt to include the last day of a continuing act. The claim forms were issued in March 2009, which was within the permitted year from the pleaded date for four of the claimants, but outside it for the remaining four. The latter appear therefore to be reliant on the power of enlargement. Since we are not in a position to evaluate their pleaded reasons for exercising the power, the point will have to be canvassed, if it is thought right to persist with it, on remission.
The article 8 case
As to article 8, the judge said:
56. In my judgment, the immigration legislation, and particularly the 1971 Act, is both a legislative and an administrative scheme for protecting, in appropriate cases, the right to respect for private and family life because it deals with the essence of private and family life, namely, the legal status of an individual and thus his social identity. If the legislative scheme is not operated competently so as to achieve its aim, namely the granting of 'settled status' in the UK if appropriate, then maladministration can amount to a breach of Article 8 rights. …..
It is at the heart of Mr Drabble's case that denial of ILR or delay in granting it had immediate and predictable effects. Since this aspect of the claims was barely particularised, we gave Mr Drabble leave at the close of argument to furnish particulars, with liberty to Mr Eadie to formulate a response as to the impact of the particulars on the issues before the court.
The essence of the case now advanced is that "the consequence of the failure of the [Home Secretary] to administer the system lawfully in either category of case was … that the claimants wrongly did not have settled status" for a period of years. By this the claimants mean concretely that they had no right to work (albeit some were given discretionary permission to do so), no entitlement to mainstream welfare benefits, no possibility of travelling abroad (for example to see their families), and no means of opening a bank account or obtaining a driving licence, as well as postponement of the eventual goal of obtaining UK citizenship. In the S cases, where the decisions were unlawfully postponed, this loss occurred from the critical date of April 2002. The claimed consequences were the same in the AH cases, where it is alleged that the claimants were refused ILR for an unlawful reason when a proper application of policy would have resulted, as it finally did years later, in its being granted.
The nature of the article 8 case is thus that the Home Office, by its omissions or its acts, has materially violated the right of each claimant to respect for his private life, and has done so in circumstances which deprive it of the answer under article 8(2) that it was acting in accordance with the law. With his customary candour Mr Eadie, while conceding none of these things, has now accepted that they raise a triable case under article 8.
I agree. But in parting with this limb of the appeal, I wish to say a word about the case known by the name of the first of three appellants, Anufrijeva v Southwark LBC [2003] EWCA Civ 1406. Mr Eadie has placed reliance on the fact that even the second appellant, a Libyan refugee known as N, failed in his article 8 claim. He has pressed the case upon us as showing how steep a hill an article 8 claimant has to climb when relying on a positive obligation. It was, however, a decision on the facts; indeed many might well have taken a very different view of the treatment of N by the Home Office and whether N's clinical depression was not in fact readily foreseeable. It should not therefore be regarded as being of any real assistance in determining what a claimant must show to establish an article 8 claim.
A duty of care?
The judge also concluded that a duty of care could be found, if not within the existing law of negligence, then by a modest incremental extension of it. He said:
50. ….. It is clearly foreseeable that if asylum is refused then the applicant will be unable to obtain employment or welfare benefits; further, when a claimant is, as these claimants were, members of a very specific group and identified as being special by virtue of the relevant policy, there was, in my judgment such a relationship with the Defendant as to make it fair and reasonable for a duty of care to arise. The failure which lies at the heart of this case was the denial, by omission, to these claimants of precisely that which a special policy, designed solely for their benefit, was intended to provide, namely a settled status in the UK.
Mr Eadie submits that neither the present law of negligence nor any acceptable increment in its ambit will accommodate the present claims. If I may attempt to paraphrase his analysis, it is broadly this. The statutory function in issue here is the allocation to the Home Secretary by s.4(1) of the Immigration Act 1971 of the power to give leave to remain in the United Kingdom. This being now conceded not to be the kind of case in which a statutory duty itself carries a civil cause of action for its breach, it is on principle highly unusual for the courts to graft a duty of care on to it. Barrett v Enfield BC [2001] 2 AC 550 and Phelps v Hillingdon BC [2001] 2 AC 619 are among the rare instances, but they find no analogy in the present claims, not least because what is in issue here is not a duty at all but a power. While common law negligence can occur in the course of exercising a statutory duty or power (a gas meter reader lighting a cigarette, as was suggested in the course of argument, or an environmental health officer breaking the restaurant's china), it cannot on...
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