FXJ v SSHD [2022] EWHC 1531 (QB)
ICLR
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Queen’s Bench Division
FXJ v Secretary of State for the Home Department and another
2022 March; June 20
Choudhury J
Negligence— Duty of care— Public authority— Claimant refugee with serious mental illness successfully appealing deportation order— Secretary of State lodging late appeal and seeking extension of time but ultimately withdrawing appeal— Claimant seeking damages for deterioration in mental health caused by delay— Whether Secretary of State owing duty of care to claimant— Whether parties to be treated for that purpose as opponents in litigation— Whether duty of care in tort owed in exercise of Secretary of State’s statutory responsibility for immigration— Whether claimant’s Convention rights breached— Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8
The claimant, a Somali national who suffered from serious mental illness, came to the United Kingdom where he was recognised as a refugee. However, as a result of the claimant’s subsequent conviction for robbery the Secretary of State made a deportation order against him. The claimant appealed unsuccessfully to the First-tier Tribunal, which upheld the deportation order, but the claimant’s further appeal to the Upper Tribunal was successful. The tribunal having refused the Secretary of State’s application for permission to appeal, the deadline for a renewed permission application directly to the Court of Appeal passed without the Secretary of State making such an application. However, around two months later the Secretary of State filed an appellant’s notice together with an application for an extension of time. About a month after that, the appeal was withdrawn, a review by one of the Secretary of State’s officers having concluded that it ought not to be pursued given that conditions in Somalia for those with serious mental health issues were such that a person with an illness of that kind could not normally be returned. However, in the meantime the claimant’s mental health had deteriorate and he had been hospitalised compulsorily under section 2 of the Mental Health Act 1983 for 43 days. Thereafter, the Secretary of State granted the claimant leave to remain for five years and refugee status. The claimant issued a claim for damages against the Secretary of State alleging, inter alia, negligence consisting of breach of a duty of care to act with reasonable competence, diligence and in good faith to make decisions without unreasonable delay and to have regard to any particular vulnerabilities of any individual applicant. Dismissing the claim, the County Court judge concluded that the relationship between the parties was effectively that of opponents in litigation, so that the claim fell foul of the principle that no duty of care was owed by one litigant to another as to the manner in which litigation was conducted. The judge further concluded that no separate duty of care arose in the exercise of the Secretary of State’s statutory responsibility for immigration in circumstances where the matters complained of amounted to omissions, rather than positive acts, of the Secretary of State. The judge likewise rejected the claimant’s other grounds of claim including one based on breach of his rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
On appeal by the claimant—
Held, appeal dismissed. (1) The general principle that one party to litigation did not owe the other a duty to take reasonable care in the issuing or conduct of proceedings applied whether the proceedings involved personal damage, such as psychiatric injury, or economic damage, and it was not displaced simply because one party to the litigation was a public authority. Whether resisting or initiating proceedings in relation to another party, a public authority had a legitimate interest in achieving the outcome for which the framework of litigation existed. In all adversarial proceedings there would be a successful and an unsuccessful party, each with their own interests, and that applied as much to the Secretary of State seeking to appeal against a decision of the Upper Tribunal as it did to a claimant suing a defendant in court. It was the system of procedural rules governing the respective proceedings that provided protection against unreasonable conduct of such litigation and not the law of tort. While there were differences between litigation between private parties and that involving public authorities, the ongoing duty of candour in judicial review proceedings being an example, that was no more than a further rule governing the conduct of parties to the proceedings in a particular type of litigation and it did not mean that the parties thereby ceased to be in a predominantly adversarial relationship. Even where human rights issues were at play, the proceedings between a public authority and an applicant could be considered sufficiently adversarial for the normal rules governing other litigation to apply. While the Secretary of State might well have a “shared interest” with the other party in achieving the correct result, and in doing so would be subject to the duties of candour and co-operation, as well as a special responsibility to ensure that evidence presented to the tribunal was not unsupported, that did not alter the fundamental adversarial characteristic of the relationship. In so far as the public authority resorted to unlawful or unreasonable conduct in its capacity as litigant in asylum and immigration proceedings, there were alternative mechanisms in place to protect parties which obviated the need for any duty in tort to be imposed in addition. Accordingly, the judge had not erred in characterising the relationship as being one of parties in litigation or in concluding that the Secretary of State was under no duty of care to the claimant in that capacity (paras 33–37, 39, 41–45, 95).
Business Computers International Ltd v Registrar of Companies [1988] Ch 229, dicta of Laws LJ in Rahman v Secretary of State for the Home Department [2006] Imm AR 283, para 14, CA and dicta of Lord Scott of Foscote in Jain v Trent Strategic Health Authority [2009] AC 853B, para 35, HL(E) applied.
(2) In determining whether a public authority owed a duty of care in tort a fundamental distinction was to be drawn between cases where the public authority could be said to have caused harm (making things worse) and those where it had failed to confer a benefit (not making things better). While the distinction was often difficult to apply, as most conduct relied upon as amounting to negligence could be said to comprise a series of acts and omissions, a consideration of the purpose of the distinction could assist in reaching a common sense conclusion about which side of the line the inpugned conduct fell. In the present case the judge had asked herself the correct question and, having “stood back” in order to assess what the case was really all about, had properly concluded that it was concerned with omissions rather than a positive act, both because the pleaded case was based primarily on allegations of inaction or omission giving rise to undue delay in the grant of leave to remain and because the situation complained of amounted to the failure to confer on the claimant the benefit of leave to remain status, rather than the Secretary of State’s act of having lodged an appeal. Accordingly, the Secretary of State had owed no duty of care to the claimant in exercising her statutory responsibility for immigration control (paras 49–52, 54, 56, 58, 67).
Robinson v Chief Constable of West Yorkshire Police [2018] AC 736B, SC(E), N v Poole Borough Council [2020] AC 780B, SC(E), Advocate General for Scotland v Adiukwu 2020 SLT 861 , Ct of Sess and dicta of Lambert J in DFX v Coventry City Council [2021] PIQR P18, paras 169–173 applied.
Home Office v Mohammed [2011] 1 WLR 2862B, CA and W v Home Office [1997] Imm AR 302, CA considered.
(3) Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms could be engaged in the context of removal decisions although the threshold for a successful claim was high. The court was to take a structured approach involving a sequential analysis of the various elements that needed to be considered under article 8. The judge had short-circuited the article 8 analysis in the present case by failing to consider whether the delay that had resulted in an exacerbation of the claimant’s mental ill health amounted to an interference with his article 8 rights, despite that matter not being agreed, and in moving straight to a consideration of whether the delay was, in the circumstances, substantial. However, a failure to take a structured approach to the analysis would not warrant any interference by the appellate court if it transpired that the ultimate conclusion reached had been plainly and unarguably correct. As the judge’s analysis had, essentially, focused on the question of justification and whether the effect of delay had amounted to a proportionate means of achieving a legitimate aim, and where she had found the delay to be short and, by inference, not disproportionate, her ultimate conclusion that there was no breach of article 8 had not been wrong (paras 85, 87, 88, 90, 92–94).
Dicta of Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368B, paras 8–10, 17, HL(E) applied.
David Chirico and Angelina Nicolau (instructed by Wilson Solicitors LLP) for the claimant.
Robert Cohen (instructed by Treasury Solicitor) for the Secretary of State.
Catherine May, Solicitor
Referenced Legislation
Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8