A new decision by the Court of Appeal confirms that the Home Office may be held liable in negligence for unreasonable delays in providing visa documents and that the Upper Tribunal can award damages in such claims.
Congratulations! After considerable expense and hard work, you've been granted your UK visa.
Perhaps you've waited an agonisingly long time to get to this point. You might have been refused a visa initially and had to challenge the refusal on appeal or judicial review. You're emotionally exhausted. Your wallet / purse feels considerably lighter than before.
But don't get too carried away. Unless your grant of leave to remain takes a digital form (as it does currently for EEA nationals and their family members who obtain Settled Status), you need to wait patiently to receive a Biometric Residence Permit ('BRP'), a plastic card like this one:
Official guidance says that your BRP should arrive within 7 to 10 working days. The card itself is made by the DVLA, not the Home Office, and communication between the two authorities can sometimes be slow. In unlucky cases, some people can wait for weeks, months or years for their BRP card to arrive.
During that time, lives are placed on hold. People cannot work lawfully due to the 'right to work' legislation that, in effect, obliges employers to check that all staff have a valid document proving their legal status in the UK. Basic services, like healthcare, benefits, further or higher education and funding opportunities may be restricted. Those who need to travel overseas face the unwelcome prospect of being refused re-entry to the UK without physical proof of their leave to remain.
What can be done about unfair, unreasonable delays and maladministration in such cases?
Background
The case of Husson v The Secretary of State for the Home Department [2020] EWCA Civ 329, discusses some of the potential remedies. Husson concerned a significant delay in providing a BRP:
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. (§ 1)
Prior to the Claimant's recent grant of leave to remain, the Home Office initially refused his application. The Claimant challenged that refusal by judicial review and his claim was settled by consent. In the Consent Order agreed between the parties, the Home Office promised to reconsider his application within 3 months of receiving his further representations. Although the Home Office upheld their part of the agreement and granted him leave, it still took 2 years before the BRP card was provided to the Claimant. The Home Office gave no explanation for the delay.
The Upper Tribunal proceedings
Unusually, after receiving his BRP, the Claimant brought a judicial review challenge in the Upper Tribunal, arguing that the the delay in providing him with a BRP card was unlawful and violated his Article 8 rights under the European Convention. He claimed damages to compensate him for financial losses caused by the Home Office's breach of their duty of care or their statutory duty to provide the Claimant with a BRP within a reasonable time. In other words, his judicial review contained a hybrid of public and private law claims.
The Upper Tribunal refused to grant the Claimant permission for judicial review and found that the Tribunal did not have jurisdiction to consider an action for damages in negligence. In any event, in the Tribunal's view, the Claimant could not show that he had been totally deprived of the right to work because his passport had been endorsed with the right to work (unfortunately, that finding turned out to be incorrect on the facts).
The Court of Appeal decision
The Court of Appeal have now reversed the Upper Tribunal's decision and upheld the Claimant's appeal, remitting the case to the Tribunal for a substantive judicial review hearing.
The key findings of the Court of Appeal include:
Jurisdiction
• The Upper Tribunal has jurisdiction to award damages in certain judicial review claims (by the effect of sections 15(1) and 16(6) of the Tribunals Courts and Enforcement Act 2007), namely, claims where there is also an application seeking a public law remedy (ie. a mandatory order, a prohibiting order, a quashing order, a declaration or an injunction);
• As the Claimant was not seeking damages alone but was also seeking declarations of unlawful delay, the Tribunal could award him damages. The Court rejected the arguments of the Home Office that the Claimant no longer required the public law declarations that he sought, because:
…a declaration that the delay was unlawful is not academic if it is the foundation for a damages claim. (§ 28)
Article 8
• Where an individual is 'wholly or substantially' deprived of the ability to work, their Article 8 right to private life is arguably engaged, although the threshold for proving a violation of that right is a high one (§ 36);
• The Home Office's argument that the claimant was free to return to Mauritius to find work was rejected as 'unrealistic' given that his family was here (including a British wife and child) and the fact that he had the right to remain and the right to work in the UK but lacked a BRP to prove it.
Duty of care in negligence
• The imposition of a duty of care of public authorities exercising statutory powers or duties is a 'notoriously difficult' area (§ 42). Intense focus on the factual and statutory context is required (applying Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, at § 2);
• As tort lawyers know, a key question is whether the authority has done something voluntary that amounts to an 'assumption of responsibility' towards the claimant. The Court of Appeal turned to the most recent guidance from the UK Supreme Court on this issue, in Poole Borough Council v GN and another [2019] UKSC 25 at §§ 63 to 65 of that judgment;
• Previous cases in which the Courts had held that there was no cause of action in negligence for unlawful maladministration (such as W v Home Office [1997] Imm AR 302 (CA) and Home Office v Mohammed [2011] EWCA Civ 351) did not concern situations where there had been a voluntary 'assumption of responsibility' towards the claimants and so were not determinative in this case;
• While Lady Justice Simler, with whom the other Lord Justices agreed, harboured 'grave doubts' about the Claimant's prospects of successfully establishing that a duty of care was owed to him, she concluded after careful consideration that his case was 'arguable' (§ 58 to 64);
• Given that the liability of public authorities in negligence when exercising statutory functions is a 'complex' and 'evolving area of law', it was safer that such claims were explored on their particular facts rather than struck out or denied permission as being unarguable (§ 63).
Discussion
The floodgates haven't been thrown open yet for negligence claims against the Home Office in cases of egregious delay, but the signal from the Court of Appeal is that such claims, while difficult, are nevertheless arguable.
Gone are the days that the government could simply say that there is no private law right of action in damages for delays. That is a significant, welcome development in the rule of law.
Husson confirms that the Upper Tribunal can award damages in certain judicial review claims, and can hear complex negligence claims that are brought as part of judicial reviews. The potential implications of this are frankly staggering. The Tribunal is unlikely to be overjoyed with a decision that will only add to the volume and complexity of its substantial caseload – but that's the law, folks.
Immigration advisers would do well to keep their private law text books and colleagues at hand. Clients may require appropriate advice on potential damages claims in serious cases of maladministration, particularly where there has been some form of action by the Home Office (express or implied) promising a particular outcome or timeframe and where delays have caused financial losses. I anticipate that strong cases might be few in number, but they are likely to be out there.
I'm happy to hear from solicitors or affected individuals who require advice.
Credit to the Claimant's lawyers, Russell Wilcox instructed by Dylan Conrad Kreolle (DCK) Solicitors on a good result.