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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Baiai & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2006] EWHC 1035 (Admin) (10 May 2006) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2006/1035.html Cite as: [2006] EWHC 1035 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the applications of MAHMOUD ![]() ![]() LEONARD BIGOKU & LULJETA AGOLLI MELEK TILKI |
Claimants (Linked) |
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and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT & JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS |
Defendant Intervener |
____________________
Baiai
Manjit Gill QC, Ramby De Mello, James Collins and Adrian Berry (instructed by Sheikh and Co) for the other Claimants
Monica Carss-Frisk QC and Angus McCullough (instructed by Treasury Solicitor) for the Defendant
The Intervener was neither present nor represented at the damages hearing.
____________________
Crown Copyright ©
The Honourable Mr Justice Silber:
I. Introduction
II. The Dispute
III. The Claimants
(i) Mahmoud Baiai
and Izabela Trzcinska
(ii) Leonard Bigoku and Luljeta Agolli
(iii) Melek Tilki
IV. The Basis of the Claims for Damages
V The Statutory Provisions on Damages.
"6. Acts of public authorities.
(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently;
or (b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section 'public authority' includes-(a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature…".
"7. Proceedings.
(1) A person who claims that a public authority acted (or proposes to act) in a way which is unlawful by section 6(1) may-(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act"….
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act…
8. Judicial remedies.
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including-(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision(of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining-(a) whether to award damages, or (b)the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention….
(6)In this section-'court' includes a tribunal; 'damages' means damages for an unlawful act of a public authority; and 'unlawful' means unlawful under section 6(1)".
V. The Claims for Pecuniary Loss.
(i) Introduction
(ii) Section 6(2) of the HRA
(a) this claim is based on section 6 (1) of the HRA, which, as I have explained, makes it "unlawful for a public authority to act in a way which is incompatible with the Convention right":
(b) under section 6 (2) of the HRA, it is provided that section 6 (1) of the HRA does not apply to "an act if (a) as a result of one or more provisions of primary legislation, the authority could not have acted differently";
(c) the Secretary of State was obliged to levy a charge because of the provisions of section 25 of the 2004 Act; and
(d) thus no claim for damages can be brought against the Secretary of State in respect of the claim for recovery of the fee of £135 as he in the words of section 6(2) of the HRA "could not have acted differently" in charging this sum to the claimants.
"The Secretary of State may make regulations requiring a person seeking [a Certificate of Approval]-…
(b) to pay a fee.
(2) The regulations shall, in particular, specify-…
(b) the amount of the fee.
(3) The regulations may, in particular, make provision-
(a) excepting a specified class of persons from the requirement to pay a fee;
(b) permitting a specified class of persons to pay a reduced fee;
(c) for the refund of all or part of a fee in specified circumstances.
(iii) Would the claimants have had to pay the fee of £135 even if the Secretary of State had complied with their Convention rights?
"59…The fundamental principle underlying the award of compensation is that the court should achieve what it describes as restitutio in integrum. The applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded…"
(i) "In my view, the jurisprudence of the European Commission on Human Rights permits the introduction of legislation for the purpose of avoiding immigration control notwithstanding that this legislation might interfere with the right to marry." (paragraph 57 of the first judgment);
(ii) "…'the legislative objective [of preventing sham marriages entered into so as to avoid immigration control] is sufficiently important to justify limiting the fundamental [article 12 right]'" (paragraph 73 of the first judgment);
(iii)"...the article 12 claim succeeds as the section 19 regime is not proportionate and it constitutes a substantial interference with article 12 rights…"(paragraph 110 of the first judgment) and
(iv) "...the article 14 claim has to succeed because of the absence of justification" (paragraph 150 of the first judgment).
VI. Non-Pecuniary Loss: Damages for Distress, Humiliation etc
(i) Introduction
"60. None of the convention rights in Section 1 of the Convention is of such a nature that its infringement will automatically give rise to damage that can be quantified in financial terms…The primary object of the proceedings will often be to bring the adverse treatment to an end."
"It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage"
"9. The routine treatment of a finding of violation is, in itself, just satisfaction for the violation found reflects the point already made that the focus of the Convention is on the protection of human rights and not the award of compensation..."
"44…even if the applicant had suffered non-pecuniary damage, it was at most…during a period of eight months".
(ii) Damages for Breach of the Claimants' Article 12 Rights
"..recently the rules have changed and we cannot get married in the United Kingdom anymore and we therefore needed to go over and see our solicitor. At the Civic Centre, we were told by the staff that as we are not British citizens and we are not residents in the United Kingdom (sic). They further told us it would be extremely difficult for us to get permission from the Secretary of State to get married in the United Kingdom and as we are "asylum seekers", we may never be able to get married in the United Kingdom"
(iii) Damages for Breach of the Claimants' Article 14 Rights
"18…In calculating awards for anxiety and frustration, counsel suggested the scales of damages awarded by English courts and tribunals in discrimination cases provided an appropriate comparison.
19. None of the three English cases cited involved a violation of article 6, and to that extent they have only a limited bearing on the present problem. But there are in my opinion broader reasons why this approach should not be followed. First, the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official. Secondly, the purpose of incorporating the Convention in domestic law through the 1998 Act was not to give victims better remedies at home than they could recover in Strasbourg but to give them the same remedies without the delay and expense of resort to Strasbourg. This intention was clearly expressed in the White Paper Rights Brought Home: The Human Rights Bill (1997) (Cm 3782), para 2.6:
"The Bill provides that, in considering an award of damages on Convention grounds, the courts are to take into account the principles applied by the European court of Human Rights in awarding compensation, so that people will be able to receive compensation from a domestic court equivalent to what they would have received in Strasbourg".
Thirdly, section 8(4) requires a domestic court to take into account the principles applied by the European court under article 41 not only in determining whether to avoid damages but also in determining the amount of an award. There could be no clearer indication that courts in this country should look to Strasbourg and not to domestic precedents. The appellant contended that the levels of Strasbourg awards are not "principles" applied by the court, but this is a legalistic distinction which is contradicted by the White Paper and the language of section 8 and has no place in a decision on the quantum of an award, to which principle has little application. The court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflexibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the court might be expected to be, in a case where it was willing to make an award at all".
a. I have not overlooked the direction in paragraph 81(v) of Anufrijeva that in applications for damages, the parties should not cite more than three cases save in exceptional cases. The written skeleton arguments of Mr. Gill cited more than ten authorities and I did not limit him to the three cases because at that time, this application seemed to be "exceptional" because first there had been no previous English authority on damages for breaches of article 12 or of article 14 when associated with an article 12 claim, second these three applications were not identical and third, they were in the nature of test cases with other cases awaiting their outcome. In fact, it was only when I had finished hearing submissions that I realised that these cases did not raise any particular issues of importance, but that all the relevant legal principles were set out in Anufrijeva (supra) and in Greenfield (supra), which could be then applied without difficulty; and that
b. Mr. Gill tried to persuade me to follow some aspects of my decision in R (N) v Secretary of State ([2003] EWCA 207 (Admin)) but an appeal from that decision was allowed in an appeal heard with Anufrijeva (supra)[118- 145]. In Anufrijeva (supra), the Court of Appeal and in Greenfield (supra), the House of Lords also gave guidance on the approach to damages for breaches of the HRA, which are now determinative of the law. Thus N must no longer be regarded as good law.
VI. Conclusion.
APPENDIX
1. As I have explained in paragraph 30 of the first judgment, I was asked at the main hearing to resolve fourteen specific issues and many sub-issues of law but they did not focus on any features of the individual cases of the claimants. Thus, I dealt generally with the issues of compatibility of the section 19 regime with articles 12 and 14 of the ECHR. I, and I suspect all counsel, expected and anticipated that my conclusions on these general issues would resolve all issues in the individual cases.
2. It, however, became clear when dealing with the damages claims a few weeks later that there was a further issue which the Secretary of State wished to have resolved and that was to determine the impact of the section 19 regime on an applicant for a COA who is unlawfully present in the United Kingdom. It was considered that it would be helpful for me to express some views on this issue. Counsel then made written submissions on this issue, which does not affect the only outstanding substantive issue dealt with in this judgment which was the damages claims.
3. I tried my best to resolve this issue without an oral hearing and sent out my provisional conclusions when the draft of this judgment was circulated to counsel but I stressed that that they were put forward with diffidence. Counsel for the Secretary of State then asked me to consider the correctness of the decision to refuse to give a COA to Mr. Baiai. The claimants agreed with this course. I had hoped to have a further oral hearing to resolve this matter but this has not proved possible. So, I have already notified counsel that I will resolve this issue if possible on the basis of further written submissions and I have made provisional suggestions for a timetable for further evidence and further submissions so that this matter can be resolved speedily. In those circumstances, nothing would be achieved by setting out now my provisional views on the impact of the section 19 regime on an applicant for a COA who is unlawfully present in the United Kingdom.