R (A) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith |
| Judgment Date | 06 July 2004 |
| Neutral Citation | [2004] EWHC 1585 (Admin) |
| Docket Number | Case Nos: CO/3017/01 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 July 2004 |
[2004] EWHC 1585 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MR JUSTICE KEITH
Case Nos: CO/3017/01
C0/5194/02
Mr Stephen Knafler (instructed by Clore & Co (in respect of A) and Duncan Lewis & Co (in respect of Kanidagli)) for the Claimants
Mr Sean Wilken (instructed by The Treasury Solicitor) for the Defendant
Crown Copyright ©
Introduction
The extent to which public authorities can be liable in tort for negligence at common law has been the subject of much debate in recent years. The topic arises in these two cases in the context of maladministration by the Home Office which resulted in asylum-seekers or members of their families who had been granted leave to remain in the UK not receiving the statutory welfare benefits to which they were entitled. Since both cases raise the same issues, they have been heard together.
Both sets of proceedings started life as claims for judicial review. On 14 May 2003, Mr Rabinder Singh QC (sitting as a deputy judge of the High Court) ordered by consent that Mr Kanidagli's claim continue in the Administrative Court as if it had been begun as an ordinary claim for damages. Although a similar order has not been made in Mrs A's claim, the parties have proceeded as if it had been. On 8 December 2003, Maurice Kay J. (as he then was) ordered that the cases be listed for a preliminary hearing to decide whether the defendant, the Secretary of State for the Home Department ("the Secretary of State"), was liable to the claimants in law on the assumed facts set out in the claimants' statements of case. The hearing was not merely to determine whether on the assumed facts there was an arguable case that liability should be imposed on the Secretary of State. The hearing was to decide whether on the assumed facts the Secretary of State was in fact liable to the claimants.
Although the order provided for the assumed facts to be those set out in the statements of case, the parties have agreed what facts should be assumed for this purpose. However, that agreement has been expressed to be "without prejudice to any factual or legal argument that the [Secretary of State] might raise in relation to quantum and associated issues such as causation of loss, remoteness or mitigation". Moreover, the argument before me (leaving aside an associated claim that the Secretary of State abused his power) was limited to whether a duty of care was owed to the claimants. Presumably, the agreement was therefore also without prejudice to whether such a duty of care had been broken. Thus, I have treated the hearing as having been to decide whether, on the assumed facts, the Secretary of State owed a duty of care to the claimants. An anonymity order has been made in the case of Mrs A.
The assumed facts in Mrs A's claim
In 1997, Mrs A's husband arrived in the UK and applied for asylum. On 29 November 1999, the Secretary of State recognised him as a refugee, and granted him indefinite leave to remain in the UK. In due course, the Secretary of State granted Mrs A (and her five children) entry clearance to join her husband. He did so on 4 December 2000. When the Secretary of State grants entry clearance to the family of a person who has been recognised as a refugee, it is his practice to permit the family to enjoy the same benefits as other immigrants are entitled to. In particular, they will be eligible to take employment and to receive welfare benefits. The Secretary of State did not intend to depart from this practice in Mrs A's case. However, the terms of the entry clearance granted to Mrs A which were endorsed on her passport mistakenly prohibited her from having any recourse to public funds.
Mrs A and her children arrived in the UK on 20 February 2001. She wrote on a number of occasions to the Secretary of State and the Treasury Solicitor asking for the terms of her entry clearance to be amended urgently so as to enable her to claim income support for herself, although her husband was able to claim benefits on behalf of their children and did so. Eventually, on 31 July 2001, she issued her claim for judicial review, seeking a mandatory order requiring the Secretary of State to amend the terms of her entry clearance. In due course, she was given permission to amend the claim form to include a claim for financial compensation.
On 17 August 2001, the Secretary of State acknowledged that the restriction on Mrs A's access to public funds placed on her entry clearance had been a mistake, but it was not until 14 February 2002 that the Secretary of State wrote to her granting her indefinite leave to remain in the UK and removing the restriction on her access to public funds. From then on, she was able to claim income support. She had therefore not been able to claim benefits for herself from 20 February 2001 (when she arrived in the UK) to 14 February 2002 (when the restriction on her access to public funds was removed). Those lost benefits have been calculated on her behalf as amounting to £1,945.28.
The assumed facts in Mr Kanidagli's claim
Mr Kanidagli arrived in the UK on 23 August 1999 and applied for asylum. He received income support and housing benefit. In due course, the Secretary of State refused his application for asylum, and Mr Kanidagli appealed. On 4 February 2002, an adjudicator found that it would be a breach of Art. 3 of the European Convention on Human Rights ("the Convention") to remove him to his country of origin. It is the Secretary of State's practice to grant exceptional leave to remain in the UK in cases where removing someone from the UK would be incompatible with Art. 3 of the Convention, and to set out the grant of exceptional leave to remain in a document ("a status letter"), which also permits the recipient to take employment and to receive such welfare benefits as other immigrants are entitled to. The Secretary of State did not intend to depart from this practice in Mr Kanidagli's case. Indeed, on 27 March 2002, the Secretary of State wrote a status letter to Mr Kanidagli granting him exceptional leave to remain in the UK. However, he did not send it to Mr Kanidagli.
Mr Kanidagli wrote to the Secretary of State on a number of occasions asking for his status letter. He also went to an office of the Department of Work and Pensions ("the DWP") in an attempt to regularise his entitlement to income support, but was unable to do so because he did not have a status letter. On 27 July 2002, the DWP ceased to pay him income support because he had failed to provide a status letter. He was similarly refused a jobseeker's allowance. Eventually, on 13 November 2002, Mr Kanidagli issued his claim for judicial review, seeking a mandatory order requiring the Secretary of State to provide him with a status letter. That prompted the Secretary of State to issue a status letter to Mr Kanidagli, which he did on 21 November 2002. The Secretary of State subsequently admitted that he had not done so earlier owing to administrative error.
Mr Kanidagli has been receiving benefits since 10 December 2002. He had therefore not received benefits from 27 July 2002 (when income support was no longer paid to him) to 10 December 2002. Giving credit for payments of income support received, and on the footing that the DWP will not seek to recoup any of those payments, the lost benefits have been calculated on Mr Kanidagli's behalf as amounting to £3,150.77.
Some preliminary matters
It is obvious that the Secretary of State could have made ex gratia payments to the claimants to compensate them for the losses which they suffered as a result of the maladministration which had admittedly occurred. He has chosen not to do that, and it now has to be decided whether he is liable in law to compensate the claimants. Without wishing to suggest that these cases do not have any importance for the orderly development of public law, the claimants' advisers disavow any intention to establish that there is a general right of reparation for maladministration. Indeed, no such right exists in public law:
"A fundamental tenet of English law is that the failure of a public body to act in accordance with public law principles of itself gives no entitlement at common law to compensation for any loss suffered. Nor does the careless performance of a statutory duty in itself give rise to any cause of action in the absence of a common law duty of care in negligence to a right of action for breach of statutory duty. To recover damages, a recognised cause of action in tort must be pleaded and proved." (De Smith, Woolf & Jowell, "Judicial Review of Administrative Action", 5 th ed., para. 19–003).
Indeed, what the claimants' advisers contend is that these cases fall within the already expanded ambit of actions for negligence against public bodies. A more controversial contention advanced by the claimants' advisers is that it would be an abuse of power for the Secretary of State not to compensate the claimants for their losses as a result of the maladministration which has occurred.
One other point needs to be made. The proportionality of these claims has not been questioned. However, in view of the criticisms levelled by the Court of Appeal in R (on the application of Anufrijeva) v London Borough ofSouthwark [2003] EWCA Civ 1406 at legal advisers who pursued claims for damages against a local authority and the Secretary of State, it is appropriate to make three points. Firs...
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