Simon Aruchanga v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lambert |
| Judgment Date | 10 February 2023 |
| Neutral Citation | [2023] EWHC 282 (KB) |
| Docket Number | Case No: QB-2020-001364 |
| Court | King's Bench Division |
[2023] EWHC 282 (KB)
Mrs Justice Lambert DBE
Case No: QB-2020-001364
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Benjamin Hawkin (instructed by TNA Solicitors) for the Claimant
Christian Howells (instructed by Government Legal Service) for the Defendant
Hearing dates: 10 April 2022 and 29 November 2022
Approved Judgment
This judgment was handed down remotely at 2pm on 10 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The claimant seeks damages for breach of a common law duty of care by the defendant in failing to supply him with confirmation of his refugee status. He alleges that as a consequence of the breach of duty he suffered loss of immigration benefits including accommodation benefits and welfare benefits, which in turn have caused him personal injury in the form of an exacerbation of post-traumatic stress disorder (originally caused by his witnessing atrocities in Rwanda). He was subject to deportation and for a period he was detained pending deportation. The pleadings further include: a claim for breach of the Human Rights Act 1998 arising from the same facts which, it is alleged, amount to a failure by the defendant to act compatibly with the claimant's rights under Article 8 of the ECHR; and a claim under the Data Protection Acts. The defendant applies to strike out the claims on the grounds that they disclose no reasonable cause of action and/or that they amount to an abuse of the court's process.
The Claim
The Amended Particulars of Claim dated 25 March 2022 contain a lengthy summary of the claimant's immigration history. There is only sparse analysis of those facts. However from the factual chronology and the disclosed documents I take the following key points relevant to the claims.
In May 1995, the claimant arrived in the United Kingdom from Rwanda. He claimed asylum on entry. His asylum application is dated 8 May 1995 and is made in the name of Simon Karuchanga. The application recorded his alias as “Everson Chituka.” The Amended Particulars of Claim are silent as to whether the claimant personally filled out the application, or it was completed on his behalf. In other words it is not clear whether the reference to the surname Karuchanga was a mistake and, if so, on whose part. The asylum application was granted in December 1997. The grant letter was addressed to, and concerned, “Simon Karuchanga AKA Everson Chituka.” The letter recorded that: “ you have been recognised as a refugee in the United Kingdom under the United Nations Convention Relating to the Status of Refugees of 28 July 1951 and its Protocol of 1967. You are granted leave to enter the United Kingdom until 31 December 2001. Passports of recognised refugees are not endorsed with conditions of stay and you should keep this letter carefully as your authority to remain in the United Kingdom. Shortly before the end of your 4 years' leave to remain you can apply for indefinite leave to remain.” The letter informed the claimant that, as someone upon whom refugee status had been conferred, he was free to take up a job without the need for permission from the Department of Employment or the Home Office and that he was free to use the National Health Service and the social services and access other help provided by local authorities.
In 1999, the claimant's house was burgled and his personal effects stolen. The stolen items included his Home Office documentation confirming his refugee status.
On 22 February 1999, the Probation Service wrote to the defendant informing her that the claimant was serving a term of imprisonment for burglary and handing stolen goods. It requested clarification of the claimant's immigration status for deportation purposes. The Probation Service queried whether the claimant had applied for political asylum in May 1995 and if so whether he had been given refugee status and leave to remain. The defendant responded that inquiries had returned a “ no trace.” It is not clear whether the inquiries were made in the name of Simon Aruchanga, or Simon Karuchanga.
The Amended Particulars of Claim assert that there were three further occasions between 2000 and July 2001 when the claimant (or someone on his behalf) wrote to the defendant seeking a replacement status document. No response was made to any such request.
In December 2002, the defendant issued a deportation order and the claimant was then detained under Schedule 3, Immigration Act 1971. The claimant appealed the decision to deport, referring to having claimed asylum immediately upon his entry to Britain in 1995 and stating his fears for his safety should he be returned to Rwanda. For various administrative reasons, it appears that the appeal was overlooked and so remained pending until early 2007. In July 2007, shortly before the hearing of the appeal, the defendant withdrew the decision to deport the claimant. The issue concerning the claimant's refugee status therefore remained unresolved.
In April 2018, the claimant was sentenced to a further term of imprisonment, this time for a period of 18 months. In August 2018, the defendant made a further decision to deport the claimant. He was informed that he had no legal basis of stay in the United Kingdom and that there was no evidence to support his claim of having been granted refugee status in 1997 with exceptional leave to remain. In September 2018, the claimant was detained. He was released from detention in March 2019.
On 15 April 2019 the defendant wrote to the claimant stating that she was considering revoking his refugee status. She wrote that: “ In your case, you arrived in the United Kingdom (UK) on 7 May 1995 and claimed asylum immediately on arrival. By letter dated 31 December 1997 you were informed that you had been recognised as a refugee and granted leave to remain until 31 December 2001. … As your convictions have made you subject to deportation your immigration status has come under review. Consequently your refugee status must be reviewed before any further consideration can be given to your deportation.”
The context of this letter is not clear from the pleadings or the disclosure, but it is, so far as the claimant is concerned, a significant document. It is the first occasion upon which the defendant appears to accept that the claimant had been recognised as a refugee and granted refugee status in 1997 with leave to remain (at least until 2001). This was the confirmation that the claimant had been seeking repeatedly throughout the course of his immigration history. It is also the basis of the claim in negligence.
The Amended Particulars of Claim grapple with the circumstances in which a public authority may owe a duty of care in negligence in the discharge of its public law functions by referring to the need to engage the general principles of the law of negligence and, in particular, to apply the three-stage test in Caparo Industries Ltd v Dickman [1990] 2 AC 605. The pleadings refer to, and 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.
The claim in negligence was amplified by Mr Hawkin for the claimant in written and oral submissions in the following way.
Mr Hawkin submits that the class of individuals to whom such a duty of care might be owed was relatively small and easily capable of identification by the defendant. He submits that, it is the defendant who has accorded those persons a special status defined in both domestic and international law. He submits that, by granting that group of individuals refugee status, the defendant has assumed responsibility in respect of that status, not least because only the defendant is able to grant such status. As pleaded: “ All manner of public bodies, institutions, organisations, officials and individuals from whom a refugee in the UK will require assistance or may have dealings – including but not limited to local authorities, the Social Services, the Department of Work and Pensions, employers, landlords, colleges, the...
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