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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> FXJ v Secretary of State for the Home Department & Anor [2023] EWCA Civ 1357 (20 November 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/1357.html Cite as: [2024] 4 All ER 924, [2023] WLR(D) 477, [2023] EWCA Civ 1357, [2024] KB 371, [2024] 2 WLR 843 |
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ON APPEAL FROM KINGS BENCH DIVISION
Mr Justice Choudhury
Strand, London, WC2A 2LL |
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B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL (Civil Division)
LADY SIMLER
and
LADY JUSTICE ANDREWS
____________________
FXJ |
Claimant/Appellant |
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- and - |
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(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) HOME OFFICE |
Defendants/Respondent |
____________________
Robert Cohen (instructed by Government Legal Department) for the Respondents
Hearing date: 4 October 2023
____________________
Crown Copyright ©
Lady Simler:
Introduction
"the Home Office appeal and the resultant delay in his being granted refugee status were significant aggravating factors that rendered his 2016-7 episode of schizophrenic relapse more severe and longer in duration".
i) Negligence: she held that no common law duty of care was owed by the respondent to the appellant in the circumstances of this case: the true relationship between the parties during the material period was one of litigation, and as a litigant the respondent owed no duty to the appellant. But even if the respondent was exercising statutory responsibility for immigration control, the pleaded allegations were directed at omissions rather than actions, and the respondent had not voluntarily assumed responsibility in any sense. No duty of care arose on this basis either accordingly.
ii) Judge Baucher found in the alternative, that there was no breach of duty: although provided with extracts from file notes passing between the respondent's officers at the material time, she did not have a complete picture of what the respondent was doing or thinking, and the file notes were made while the case was the subject of litigation and that formed part of the context. She held that there was no evidence on which she could properly find that the respondent failed to have adequate systems of communication, either internally or with legal representatives. She was not provided with details of exactly what passed internally or externally and observed that litigation privilege would inevitably apply. She also held that there was no evidence that the respondent failed to act expeditiously. Moreover, in relation to the aborted attempt to appeal out of time, the discussions about this case did not disclose any breach of duty.
iii) Misfeasance: Judge Baucher rejected this claim based on untargeted malice in the pursuit of a futile appeal against a known Somali refugee suffering from serious mental illness, and in the sending of misleading correspondence about the appeal. She held that the respondent was entitled to consider the merits of a late appeal and that none of the matters complained of in relation to the appeal, even taken at their highest, could properly be considered unlawful; nor did they disclose subjective recklessness. Likewise, she rejected the claim that the correspondence and application were misleading, but even if they were, there was no unlawful conduct.
iv) Article 8: Judge Baucher held that the respondent's delay in implementing the appellant's grant of status was not substantial. She continued:
"118. … On any consideration, five months was a short period and I am satisfied that period of delay does not engage a breach of Article 8.
119. Even if I am wrong I am satisfied, in any event that any interference would be justified. There is important public interest in immigration control, the deportation of offenders and parties being able to seek permission to appeal so as to engage Article 8(2)."
The facts
"I agree that we should not pursue this case. I have previously expressed concerns about the Home Office position with regards to Somalis with mental illness. The UT finding – extract below – is clear (a) that those with mental health disorders are often subject to humiliating conditions including that they are often chained; and (b) that the chaining of mental health patients amounts to inhuman and degrading treatment.
As I have previously stated, unless we wish to challenge one or other of these findings it follows that Somalis whom we accept have serious mental health issues cannot normally be returned. There would have to be exceptional factors such as a strong family network in the Mogadishu area to have even a chance of overcoming that presumption that Article 3 applies.
Given that, where we accept that a Somali has serious mental health issues and does not have a strong family support network in Mogadishu, I do not understand why we would not grant leave nor why we would incur taxpayers' money on futile attempts to deport."
The respondent's withdrawal of the appeal very shortly afterwards was confirmed by a court order sealed on 13 May 2016. By letter dated 19 May 2016, the respondent wrote to the appellant's solicitors confirming that he would be granted leave to remain for five years. There was then a delay until 16 June when the appellant completed a biometric residence permit application. On 23 July 2016, the respondent granted the appellant refugee status and leave to remain for five years.
"the delay in the Home Office granting him refugee status and the fact that they made a late appeal to the Court of Appeal were important stressors for [him]. In people with schizophrenia, relapse tends to occur at times of stress.
I would therefore conclude that the Home Office's late appeal and the delay in the granting of refugee status were important contributors to [the appellant's] relapse which occurred between July 2015 and his hospitalisation in May 2016. His poor medication compliance, his resumption of alcohol and illicit drug use and the ongoing stress of his immigration uncertainty were however also important contributors. Given that his relapse appears to have had its onset well before the Tribunal decision which the Home Office challenged, neither the Home Office appeal against the Tribunal decision nor the resultant delay in his being granted refugee status can be regarded as causative of his relapse (which was already happening). They were however significant aggravating factors."
The judgments below
"89. There are two flaws in that analysis: first, Mr Chirico was not seeking through his submissions to "turn the argument" from delay to the effect of that delay. It had clearly been pleaded that the delay in implementing the Appellant's grant of status "amounted to an interference in his right to respect for his private life (including his mental integrity)". Thus the effect of the delay, i.e. the consequences for the Appellant's mental health, was always part of his case under Article 8. Following a structured approach would have enabled the Judge to identify the distinction between the act complained of (i.e. the delay) and the resultant interference with Article 8 rights (i.e. the effect on the Appellant's mental health). Second, the phrase, "does not engage a breach of Article 8" conflates two separate issues: the first being whether Article 8 is engaged by reason of the alleged interference; and the second being whether Article 8 is breached, which requires a consideration of whether any interference was justified."
The appeal: common law duty of care
"63. Most recently, the decision of this court in 2018 in the case of Robinson v Chief Constable of West Yorkshire Police drew together several strands in the previous case law. The case concerned the question whether police officers owed a duty to take reasonable care for the safety of an elderly pedestrian when they attempted to arrest a suspect who was standing beside her and was likely to attempt to escape. The court held that, since it was reasonably foreseeable that the claimant would suffer personal injury as a result of the officers' conduct unless reasonable care was taken, a duty of care arose in accordance with the principle in Donoghue v Stevenson [1932] AC 562. Such a duty might be excluded by statute or the common law if it was incompatible with the performance of the officers' functions, but no such incompatibility existed on the facts of the case. The court distinguished between a duty to take reasonable care not to cause injury and a duty to take reasonable care to protect against injury caused by a third party. A duty of care of the latter kind would not normally arise at common law in the absence of special circumstances, such as where the police had created the source of danger or had assumed a responsibility to protect the claimant against it. The decision in Hill v Chief Constable of West Yorkshire was explained as an example of the absence of a duty of care to protect against harm caused by a third party, in the absence of special circumstances. It did not lay down a general rule that, for reasons of public policy, the police could never owe a duty of care to members of the public.
64. Robinson did not lay down any new principle of law, but three matters in particular were clarified. First, the decision explained, as Michael had previously done, that Caparo did not impose a universal tripartite test for the existence of a duty of care, but recommended an incremental approach to novel situations, based on the use of established categories of liability as guides, by analogy, to the existence and scope of a duty of care in cases which fall outside them. The question whether the imposition of a duty of care would be fair, just and reasonable forms part of the assessment of whether such an incremental step ought to be taken. It follows that, in the ordinary run of cases, courts should apply established principles of law, rather than basing their decisions on their assessment of the requirements of public policy. Secondly, the decision re-affirmed the significance of the distinction between harming the claimant and failing to protect the claimant from harm (including harm caused by third parties), which was also emphasised in Mitchell and Michael. Thirdly, the decision confirmed, following Michael and numerous older authorities, that public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation requires a departure from those principles. That is the basic premise of the consequent framework for determining the existence or non-existence of a duty of care on the part of a public authority.
65. It follows (1) that public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) that public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and (3) that public authorities can 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 has created the source of danger or has assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation."
"4. The distinction between careless acts causing personal injury, for which the law generally imposes liability, and careless omissions to prevent acts (by other agencies) causing personal injury, for which the common law generally imposes no liability, is not a mere alternative to policy-based reasoning, but is inherent in the nature of the tort of negligence. For the same reason, although the distinction, like any other distinction, can be difficult to draw in borderline cases, it is of fundamental importance. The central point is that the law of negligence generally imposes duties not to cause harm to other people or their property: it does not generally impose duties to provide them with benefits (including the prevention of harm caused by other agencies). Duties to provide benefits are, in general, voluntarily undertaken rather than being imposed by the common law, and are typically within the domain of contract, promises and trusts rather than tort. It follows from that basic characteristic of the law of negligence that liability is generally imposed for causing harm rather than for failing to prevent harm caused by other people or by natural causes. It is also consistent with that characteristic that the exceptions to the general non-imposition of liability for omissions include situations where there has been a voluntary assumption of responsibility to prevent harm (situations which have sometimes been described as being close or akin to contract), situations where a person has assumed a status which carries with it a responsibility to prevent harm, such as being a parent or standing in loco parentis, and situations where the omission arises in the context of the defendant's having acted so as to create or increase a risk of harm."
Where a course of conduct involves features that are capable of being analysed in both ways, the real nature and purpose of the distinction must be kept in mind in coming to a common sense decision about how the matters complained of as causing the harm should properly be characterised. These are questions of fact and degree. There may be cases where, as a matter of fact, the significance of one aspect of the course of conduct leads to the conclusion that it was positive conduct that caused harm notwithstanding that other aspects involve failures to act or confer benefits. That however, is not this case.
"49. …there was a delay of over 5 months, from the final determination of the Upper Tribunal allowing his appeal, in granting C leave to remain in the United Kingdom. As a result, C suffered loss and damage, including psychiatric harm ...
50. At all material times, D owed C a duty of care. In particular, and in light of C's particular vulnerability … which was known to D, and in light of the specific finding of the Upper Tribunal about the likely impact of a delay on C's mental health, D owed C a duty to make a prompt decision on the implementation of his successful appeal and on the grant of leave to remain in the UK."
Ground 3: article 8
"D's delay in implementing C's grant of status amounted to an interference in his right to respect for his private life (including his mental integrity). For the reasons set out above, that interference was unjustified (because arbitrary and therefore disproportionate)".
Damages were claimed in respect of that breach of his article 8 rights pursuant to section 7 of the Human Rights Act 1998.
"10. …[T]he rights protected by article 8 can be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even where such removal does not violate article 3, if the facts relied upon by the applicant are sufficiently strong.
…
17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8 , these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?"
"90. However, the failure to take a structured approach to the analysis would not warrant any interference by the appellate court if it transpires that the ultimate conclusion reached was plainly and unarguably correct. It seems to me that, notwithstanding the flaws identified above, the Judge's analysis was, as Mr Cohen submits, essentially focused on the question of justification and whether the effect of delay amounted to a proportionate means of achieving a legitimate aim. That question was considered by the Judge, albeit very briefly, in the penultimate paragraph of the Judgment, which provides:
"119. Even if I am wrong I am satisfied, in any event that any interference would be justified. There is important public interest in immigration control, the deportation of offenders and parties being able to seek permission to appeal so at (sic) to engage Article 8(2)."
91. This is a decision in the alternative to what has gone before; in other words, if the Judge was wrong that there is no engagement or interference with Article 8 rights, the Judge considered whether that interference was justified. Having determined that the delay of five months was "a short period", the Judge's conclusion that the interference was justified "so as to engage Article 8(2)", amounted to a truncated and somewhat infelicitous way of stating that the delay and its consequential effects amounted to a proportionate means of achieving the legitimate aim of having effective immigration control systems with rights of appeal for both parties. In any lawful system of immigration control, an adverse decision or an appeal against a positive decision, would be likely to result in anxiety and stress for affected individuals, and delays in the relevant processes would be likely to add to that stress. However, delays are an occasional unavoidable feature of any system dependent on individual decision-making. The Judge was entitled to conclude that the effect of delay, which was not substantial or serious, was not disproportionate.
92. Mr Chirico submits that the conclusion on justification was inadequate because it is based on "generalities" (namely the important public interest in the deportation of offenders) rather than on the evidence that the attempts to deport were considered by the Respondent's own chief decision-maker as "futile, unlawful, and waste of tax payer's money". I do not accept that submission. Having a system of immigration controls in place (including the deportation of offenders) with appeal rights for both parties is undoubtedly a legitimate aim. The fact that the aim is expressed in high-level and general terms is neither surprising nor unlawful. Furthermore, the pleaded case on Article 8 merely complains that the interference was "unjustified (because arbitrary and disproportionate)"; it makes no reference expressly to Mr Wells' views as giving rise to arbitrariness or disproportionality. Indeed, given that the principal complaint was, as the Judge found, about delay, it is reasonable to infer that it was that factor (i.e. delay) that was complained about as being arbitrary and disproportionate. The Judge's clear conclusion was that the delay was relatively short, and, it may be inferred, that delay and/or its effect was not disproportionate. Furthermore, given that Mr Wells' email resulted in the withdrawal of the appeal within a matter of days of the email being sent, it can hardly be said that the content of that email contributed significantly to the allegedly disproportionate delay.
93. Mr Chirico's final complaint is that by stating that Article 8(2) was not engaged, the Judge asked herself the wrong question. There is nothing in this point: the Judge clearly intended to state that the interference was justified within the meaning of Article 8(2). The infelicitous reference to the language of "engagement" does not render that conclusion incorrect."
"it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for article 8 rights, the more glaring the deficiency in the behaviour of the public authority, the easier it will be to establish the necessary want of respect."
Andrews LJ:
Underhill LJ: