Secretary of State for the Home Department v Adiukwu
| Jurisdiction | Scotland |
| Judge | Lord Woolman,Lord Glennie,Lady Dorrian,Lord Justice-Clerk |
| Judgment Date | 14 August 2020 |
| Neutral Citation | [2020] CSIH 47 |
| Court | Court of Session (Inner House) |
[2020] CSIH 47
COURT OF SESSION
Lady Dorrian (Lord Justice-Clerk), Lord Glennie and Lord Woolman
Mr Mcllvride QC and Mr Pugh instructed by Morton Fraser LLP, for the Advocate General for Scotland;
Ms Crawford QC and Mr Dewar instructed by Drummond Miller LLP, for the Claimant.
Caparo Industries Plc v Dickman [1990] 2 AC 605; [1990] 2 WLR 358; [1990] 1 All ER 568
Customs and Excise Commissioners v Barclays Bank Plc [2006] UKHL 28: [2007] 1 AC 181: [2006] 3 WLR 1; [2006] 4 All ER 256
Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057; [2004] 2 All ER 326
Medley Byrne & Company Limited v Heller & Partners Limited [1964] AC 465; [1963] 3 WLR 101; [1963] 2 All ER 575
Henderson v Merrett Syndicates Ltd (No.1) [1995] 2 AC 145; [1994] 3 WLR 761; [1994] 3 All ER 506
Home Office v Mohammed and Others [2011] EWCA Civ 351; [2011] 1 WLR 2862
Kiani v Secretary of State for Business, Innovation and Skills [2013] CSOH 121
M (Algeria) In a petition for judicial review [2013] CSOH 114
McCreaner v Ministry of Justice [2014] EWHC 569 (QB); [2015] 1 WLR 354
Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732; [2015] 2 WLR 343; [2015] 2 All ER 635
MicostaSA v Shetland Islands Council [1984] 2 Lloyd's Rep 525; 1986 SLT 193
Philp v Highland Council [2018] CSIH 53
Poole Borough Council v GN (through his litigation friend “The Official Solicitor”) and Another [2019] UKSC 25; [2019] 2 WLR 1478; [2019] 4 All ER 581
R (on the application of A and Kanidagli) v Secretary of State for the Home Department [2004] EWHC 1585 (Admin)
Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] 2 WLR 595; [2018] 2 All ER 1041
Rowlev v Secretary of State for Work and Pensions [2007] EWCA Civ 598; [2007] 1 WLR 2861
Royal Bank of Scotland Plc v Holmes 1999 SLT 563; 1999 SCLR 297
Sebry Companies House [2015] EWHC 115 (QB); [2016] 1 WLR 2499; [2015] 4 All ER 681
Shetland Line (1984) Ltd v Secretary of State for Scotland 1996 SLT 653
Spring v Guardian Assurance Plc [1995] 2 AC 296; [1994] 3 WLR 354; [1994] 3 All ER 129
Stovin v Wise [1996] AC 923; [1996] 3 WLR 388; [1996] 3 All ER 801
W v Home Office [1997] Imm AR 302
White v Jones [1995] 2 AC 207; [1995] 2 WLR 187; [1995] 1 All ER 691
X v Hounslow London Borough Council [2009] EWCA Civ 286
Courts Reform (Scotland) Act 2014, section 112
Crown Suits (Scotland) Act 1857, section 4A
European Convention on Human Rights, Article 8
Immigration Act 1971, sections 3 & 4
Immigration — leave to remain — delay in granting leave to remain — exercise of statutory functions — no common law duty of care — procedure and process — grounds of appeal — absence of pleading
The Claimant applied for leave to remain in the United Kingdom in March 2010. The Secretary of State for the Home Department refused the application. The First-tier Tribunal (“FtT”) allowed the Claimant's appeal, finding that removal would be incompatible with her rights under Article 8 of the ECHR. The Upper Tribunal (“UT”) dismissed the Secretary of State's appeal against the FtT's decision in March 2015. The Secretary of State did not seek to challenge the UT's decision and she issued the Claimant with a ‘leave to remain’ status letter, in November 2016. No explanation for the delay between March 2015 and November 2016 was provided. The Claimant sought damages in respect of loss and damage allegedly suffered by her because of the failure to issue her with the appropriate status letter for some 20 months between March 2015 and November 2016. She contended in her pleadings that this failure prevented her from obtaining employment as a lawyer within the United Kingdom; that it prevented her from accessing benefits of any kind for herself and her children; and that it made it impossible for her to pay her rent, as a result of which she was evicted from her home and forced to seek refuge in emergency accommodation.
The case went before the Sheriff of Grampian for debate on the Secretary of State's preliminary plea that the Claimant's pleadings were irrelevant or lacking in specification. The Claimant's written case was that the Secretary of State owed her a duty of care in the administrative implementation of immigration decisions in her favour. It was averred that, as a consequence of the Secretary of State's ‘maladministration’, the Claimant suffered ‘reasonably foreseeable, and predictable, financial loss and damage’. The Secretary of State relied on Home Office v Mohammed and Others[2011] EWCA Civ 351 in her submission that no duty of care was owed to the Claimant in circumstances where the Secretary of State was simply fulfilling her statutory function. On the basis of oral submissions, the Sheriff held that at the relevant time, Home Office policy guidance stated that persons in the Claimant's position should be granted discretionary leave to remain for up to 30 months. The Claimant's written pleadings contained no averments of any policy allegedly operated by the Secretary of State. In making his decision in the Claimant's favour, the Sheriff relied on R (on the application of A and Kanidagli) v Secretary of State for the Home Department[2004] EWHC 1585 (Admin), in which the judge concluded that it was fair, just and reasonable that an administrative error of this kind, involving no judgement but simple administration and with a predictable financial effect, for which there was no other remedy, should be regarded as arising out of a sufficiently proximate relationship to found a claim for damages.
On appeal, the Secretary of State relied on the judgment in Poole Borough Council v GN (through his litigation friend “The Official Solicitor”) and Another[2019] UKSC 25 in support of her argument that, although she could confer a benefit on the Claimant in the exercise of her statutory functions, she did not owe a duty of care to do so. The Court considered whether the Secretary of State owed a duty of care to grant the Claimant discretionary leave to remain and to issue a letter confirming that status within a reasonable time of her decision not to seek to challenge the UT's decision.
Held, allowing the appeal:
(1) The respective tribunals did not make any order in their decisions that the Secretary of State should issue a status letter. They determined that the Claimant's removal would be a disproportionate interference with her rights pursuant to Article 8 of the HCHR. How to address that remained a matter for the Secretary of State. As far as predicated on assertions that the tribunals ordered the Secretary of State to grant leave to remain, the case was irrelevant. It was unsatisfactory and inappropriate that the Sheriff proceeded on the basis of submissions made ‘on the hoof’. If the Claimant's case was said to rest on the existence and operation of a policy, those matters should have been clearly made the subject of averment so that an informed and reliable understanding of the policy and its operation might be achieved. The Claimant now said, orally, that there was ‘a systemic failure’ to ensure that policies were applied. That, rather than foreseeability, was said to be the source from which a duty on the Secretary of State might be deduced. There was no valid issue for inquiry on that matter in the absence of averments. Equally there were no averments which would establish of a duty of care on the Secretary of State for failing to confer a benefit. Whilst the case should not be determined purely on the basis of an absence of pleading, if the absence caused difficulty in reaching a conclusion on any matter, the benefit should be given to the Secretary of State (paras 3 – 5).
(2) The decision in Mohammed was that the Secretary of State did not owe a common law duty of care to applicants for leave to remain in the United Kingdom to avoid maladministration in the exercise of her statutory power to grant leave to remain. Mohammed disapproved the rationale of A and Kanidagli and the Sheriff's reasoning in the instant case could not stand. Neither A and Kanidagli nor Mohammed assisted in determining the correct approach, given the extent to which understanding of the law in this area had been clarified and developed by Michael v Chief Constable of South Wales Police[2015] UKSC 2; Robinson v Chief Constable of West Yorkshire Police[2018] UKSC 4 and GN. In GN, Lord Reed explained, inter alia, that public authorities could come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority had created the source of danger or had assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation. It was common ground in the instant case that no duty of care arose directly from statute. The Claimant suggested that a failure to grant leave to remain was alone sufficient to create liability by reclassifying it as the creation of a danger. Her case was not one of causing harm, but rather one of failing to confer a benefit. It thus fell within the established principle that a duty of care did not arise save in very limited exceptions. The Claimant was in no worse position as a result of the Secretary of State's actions. A failure to act to put the Claimant in a better position could not truly be equated with creating a source of danger (paras 9 – 11).
(3) The basis upon which the Secretary of State might be said to have assumed responsibility towards the Claimant was very difficult to identify. In GN. Lord Reed stated that the operation of a statutory scheme did not automatically generate an assumption of responsibility, but it might have that effect if a defendant's conduct pursuant to...
To continue reading
Request your trial
-
FXJ v Secretary of State for the Home Department
...the very basis upon which the claimant in this case seeks a remedy from the defendant has already been answered in the case of Adiukwu [2020] CSIH 47” [75]; (ii) that while Adiukwu is a Scottish case it is “persuasive” and “essentially on point” [75; 82]; (iii) that Adiukwu could not be dis......
-
FXJ v Secretary of State for the Home Department
...appellant a duty of care in the exercise of her statutory immigration duties, the judge regarded Advocate General for Scotland v Adiukwu [2020] CSIH 47, [2020] SLT 861 as highly persuasive and concluded that there was no relevant distinction between that case and this one. She was satisfied......