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||Neutral Citation Number:  EWHC 1388 (Admin)
||Case No: CO/7906/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||27 May 2011
B e f o r e :
MR STEPHEN MORRIS QC
Sitting as a Deputy Judge of the High Court
|| THE QUEEN
on the application of
ATAPATTU LIYANARALALAGE LUCK SAMAN ATAPATTU
||- and -
||THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Bojana Asanovic (instructed by Messrs Sam & Co, Solicitors) for the Claimant
John Jolliffe (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 26 November, 9 and 16 December 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Stephen Morris QC:
- The Claimant, Luck Saman Atapattu, ("Mr Atapattu") is a Sri Lankan national, now aged 45. By this action for judicial review, he seeks to recover damages from the Secretary of State for the Home Department ("the Defendant") for her failure, between January and August 2010, to issue him with entry clearance (i.e. a visa) to the United Kingdom and for the wrongful retention of his Sri Lankan passport.
- On 21 July 2010 he commenced this action, complaining of the Defendant's continuing failure, from January 2010 onwards, to grant him a visa to the United Kingdom for the purpose of pursuing his studies towards a ship's master qualification at the Blackpool and the Fylde College in Blackpool ("Fylde College"). He sought an order directing the Defendant to grant entry clearance and to return his passport with a visa endorsement. In addition he claimed damages.
- By the time of the oral permission hearing, the Defendant had given an undertaking to issue to Mr. Atapattu a student visa and to return his passport, once Mr. Atapattu had provided necessary documents. By order dated 23 August 2010 Mrs Justice Dobbs accordingly refused permission in respect of the grant of a visa and the return of his passport. At the same time, upon the giving of such an undertaking, she granted permission to pursue the claim for damages and gave directions for its determination. The claim for damages then came before Mr. Justice Treacy on 21 October 2010 who adjourned the hearing and gave further directions. In this way, Mr Atapattu's claim for damages now falls for determination by this Court . It is agreed by the parties that what falls for determination now are all issues of fact and law on the question of liability for damages, with quantum to be left over until after my ruling. In fact, as became apparent in the course of argument, issues of causation also fall to be left over. My conclusions are stated at paragraph 176 below.
The claim for damages in summary
- Mr. Atapattu works in the merchant navy as a chief officer. In the latter part of 2008, he took steps to obtain qualification as a ship's master and sought to come to the UK to study at Fylde College on a course due to commence in September 2008. His application for UK entry clearance for that purpose was refused, twice. The Asylum and Immigration Tribunal ("AIT") then allowed his appeal against those refusals, and in January 2010, he re-applied for entry clearance, by submitting his passport to the British High Commission in Colombo, Sri Lanka. However, despite being chased persistently, the Defendant did not respond at all and neither granted him entry clearance nor returned his passport. The passport was not returned until late August 2010 after the commencement of these proceedings. Not only did the Defendant not respond to Mr. Atapattu, but, at no time since, has the Defendant given any explanation as to what happened to his passport or visa application during that period. The Defendant simply accepts that she did not reply.
- Mr. Atapattu contends that the Defendant's conduct in the period from January to August 2010 comprised two distinct elements, giving rise to two distinct consequences. First, the Defendant's retention of his passport meant that he was not able, during that time, to pursue employment in the merchant navy. This in turn caused actual loss of earnings as a chief officer. (The claim here is put at about £4000 per month for at least 6 months). Secondly, the failure of the Defendant to grant him a visa meant that he could not pursue his course of study in the UK, and that prevented him from qualifying, and being employed, as a ship's master. That in turn prevented him for enhancing his earnings. (The claim here is for enhanced earnings of £1000 per month). Mr. Atapattu claims damages for these losses on the following three legal bases.
- First, he claims in conversion. Mr. Atapattu contends that the Defendant is liable for retaining his passport in a manner which constituted a wrongful interference with goods under s.1 of the Torts (Interference with Goods) Act 1977. On this legal basis, Mr. Atapattu seeks damages in respect of his actual loss of earnings.
- Secondly, he claims in negligence. Mr. Atapattu contends that, in the particular circumstances of this case, the Defendant owed him a common law duty of care and that, in failing to grant, or at least to consider, his visa application, made on 13 January 2010, at all or within a reasonable time, the Defendant breached that duty. Although not entirely clearly delineated by his counsel, Ms. Asanovic, the primary loss said to flow from this breach, is the loss of enhanced earnings that Mr. Atapattu would earn, or would have earned, upon employment, with the benefit of a master's qualification. In so far as it is said that the breach of duty also comprised the failure to return his passport, then the claim for damages for negligence also covers actual loss of earnings, to the same extent as regards the claim for conversion.
- Thirdly, he claims damages under s.8 Human Rights Act 1998 ("the 1998 Act") and puts his case in two ways. First, it is said, the Defendant's failure to grant a visa infringed his right to respect for his private life under Article 8 ECHR by interfering with his ability to enhance his career prospects (and in this way his personal development). Secondly, he contends that the refusal and/or failure by the Defendant to return his passport deprived him of his ability to work in the merchant navy and that this constituted a distinct infringement of his right to a private life as an interference with his right to work and/or his status. He claims damages under Anufrijeva principles. At a late stage, Mr. Atapattu sought to add in a claim that the above conduct also infringed his rights under Article 1 Protocol 1 ECHR.
- Originally, in his Amended Grounds served on 17 August 2010 and in opening written submissions, Mr. Atapattu sought to rely upon two further legal bases for the claim for damages: namely, breach of statutory duty and breach of legitimate expectation. However, in the course of oral argument, Ms. Asanovic indicated that Mr. Atapattu no longer pursued either as a basis for damages.
- Section 3(1) of the Immigration Act 1971 ("IA 1971") provides that a person who is not a British citizen shall not enter the UK unless given leave to enter and that he may be given leave to enter (or to remain) either for a limited or an indefinite period, and subject to conditions. By s.4 IA 1971, the power to give or refuse leave to enter is exercised by immigration officers. S.33 IA 1971 defines "entry clearance" as a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence or the requisite evidence of a person's eligibility, though not a British citizen, for entry into the United Kingdom.
- Entry clearance (including the grant of a visa) and its relationship with leave to enter is dealt in rules 24 to 30 of the Immigration Rules ("HC 395") and the Immigration (Leave to Enter and Remain) Order 2000. Normally the two concepts are distinct: the effect in law of entry clearance is that it is evidence of eligibility for entry: rule 25. However, in certain circumstances, entry clearance can take effect as leave to enter and the holder will not require leave to enter on arrival: see rule 25A and Article 3 of the 2000 Order. In the present case, the entry clearance sought would have fallen into this category. Rule 26 provides that an application for entry clearance will be considered in accordance with the provisions of HC 395 governing the grant or refusal of leave to enter. Rule 27 provides that an application for entry clearance is to be decided in the light of the circumstances existing at the time of the decision.
- At the time of the Claimant's application for entry clearance in September 2008, the relevant rules for leave to enter the UK as a student were contained in rules 57 to 61 HC 395. Rule 57 set out requirements to be met by a person seeking leave to enter UK as a student. Rule 320 set out a number of grounds for refusal of leave to enter or entry clearance, including false representations, non-disclosure and deception. Since 31 March 2009 entry as a student has been governed by the points based system at paragraphs 245ZT to ZY under Tier 4 (General Student). These were the rules in force at the time of the re-submitted application at the end of January 2010. I address below the relevant principles governing the effect of a successful appeal against an immigration decision.
Approach to evidence and facts
- The current judicial review procedure is not entirely satisfactory for what is now a claim for damages, involving potentially the determination of issues of fact. There have been no pleadings, no disclosure and no oral evidence. Neither party has suggested that these steps should be taken. I thus proceed as best I can on the materials before me, comprising written grounds and submissions, Mr. Atapattu's witness statements and a limited number of contemporaneous documents.
- The following facts are based largely on material submitted by Mr. Atapattu in his Amended Grounds and three signed and attested witness statements from Mr. Atapattu himself dated 17 June 2010, 6 August 2010 and 7 January 2011. The Defendant has not, in the main, contested any of this evidence or factual assertion. In so far as it is necessary for me to make findings of fact, I bear the foregoing in mind.
- In general, I accept the evidence of Mr. Atapattu given in his witness statements. Mr. Atapattu has given careful and detailed evidence as to relevant events. The evidence there is backed up by contemporaneous documents.
- By contrast, the Defendant has adduced no evidence at all before the Court, despite having been given, in the course of oral argument, several opportunities to do so, This is surprising, since events at the British High Commission in Chennai and in Colombo were peculiarly within the Defendant's knowledge. The Defendant has not taken the opportunity to give any explanation. I have been unimpressed by this silence and consider that I am entitled to draw adverse inferences from it: see SSHD v. R (Bakhtear Rashid)  EWCA Civ 744 per Dyson LJ at §§52, 53.
- Towards the end of oral argument Mr Jolliffe said, on instructions, that the reason the visa had not been granted was because the application was defective, as it was not received in time. I then invited the Defendant to provide further information as to what happened at the time of the refusal. But no evidence was provided. Instead Mr Jolliffe sent an email dated 22 December 2010, to which Mr. Atapattu responded in his third signed witness statement. I address the matters raised in this email in paragraphs 31 to 39 below.
Mr. Atapattu's work and qualifications
- Mr. Atapattu works in the merchant navy as a chief officer. He holds Chief Officer Class 1, Certificate of Competency issued by the UK Maritime Coastguard Agency ("MCA"), an agency within the Department of Transport. He started work in the merchant navy in December 1991. He qualified as a second officer at the Australian Maritime College in Tasmania and worked in this capacity until 2001. In December 2001 he enrolled at the Warsash Maritime Centre at Southampton Solent University. In 2003 that institution awarded him a Higher Diploma in Nautical Science. Between September 2003 and May 2005 he studied for, and was subsequently awarded, an MSc in Ship and Shipping Management from Southampton Solent University.
- After completing his course at Solent in May 2005, he submitted a further application for leave to remain for one year, pending the results of his degree. That application was rejected in July 2005 and he returned to Sri Lanka on 31 July 2005 without overstaying. That rejected application underlay the subsequent refusals referred to below.
- From October 2005 to September 2008 he was employed as a chief officer in the merchant navy. He was attached to a company called Anglo-Eastern Ship Management Limited in Mumbai, providing his services on a contract basis.
- Mr. Atapattu then sought to obtain qualification as a ship's master. To become a ship's master he needed a licence issued by the MCA. To acquire that licence, Mr. Atapattu had to pass an oral test, and that in turn required him to undertake a Class 1 Master's course, followed by a further five tests. The MCA advised Mr. Atapattu that he could not sit for "the Orals" in any other country. In this way, in order to become a ship's master, Mr. Atapattu had to study in the UK: see §9 AIT determination and §3 Amended Grounds. Accordingly, Mr. Atapattu, sought to study for his Class I Master's Orals, and to do so, in particular at Fylde College. The course on which he wished to study was due to commence on 22 September 2008.
The application for UK entry clearance
- Accordingly, on 4 September 2008, Mr. Atapattu applied for UK entry clearance and leave to stay to study at Fylde College on the course due to commence in late September ("the first application"). The first application was refused on 28 October 2008. He then applied again, for the same course starting a later date ("the second application"). The second application was refused on 26 November 2008 by the Entry Clearance Officer ("ECO") in Chennai, India.
Appeal to the AIT
- On 23 December 2008, Mr. Atapattu appealed to the AIT against the decisions of the ECO. That appeal was heard by Immigration Judge Ms. P Monro on 9 June 2009. Mr. Atapattu was represented by a Mr. Samarasinge, a solicitor. The ECO in Chennai was not represented and indeed did not respond to further notification from the AIT itself. By its decision promulgated on 22 June 2009, the AIT allowed Mr. Atapattu's appeal under the immigration rules and under Article 8 ECHR.
- The AIT's decision set out the background to the appeal. Mr. Atapattu's first application had been refused for failure to disclose material facts, under paragraph 320(7A) HC 395. The material fact said by the ECO not to have been disclosed was his previous application which had been refused in July 2005. This was said also to cast serious doubts on his circumstances in India, on his intentions in the UK and his intention to leave the UK at the end of his studies; thus the first application was also refused under paragraph 57(vi) HC 395. The second application was refused, under paragraph 320(7B) HC 395, on the basis that the first application had been refused on grounds of deception.
- The AIT held (at paragraphs 21 and 22), as regards the alleged non-disclosure of the failed application in 2005, that this was not material to Mr. Atapattu's first application. As regards his second application, which was based on the refusal of first application, the AIT held that, since the reasons for refusing the first application were wrong, then the second application was also wrongly refused. The AIT found that Mr. Atapattu had every intention of following the course, since this was his route to progressing in his career. The judge concluded that Mr. Atapattu did satisfy the requirements of the rules at the date of the decision and that the decision was not in accordance with the rules applicable.
- This was the AIT's principal reason for allowing Mr. Atapattu's appeal. Mr. Atapattu further contended that the ECO's decision also breached Mr. Atapattu's rights under Article 8 ECHR. He had established a private life in the UK between 2001 and 2005, he had a legitimate expectation that he could return to finish his qualification and he had to take the exam in the UK. His right to personal development was protected by Article 8. The AIT addressed this argument in the following terms:
"23. In relation to the Article 8 appeal, I was assisted by the reference to the decision in Pretty v UK  35 EHRR 1 where at paragraph 61 the Court stated: 'the concept of a private life is a broad terms not susceptible to exhaustive definition; it covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual's physical and social identity ... it protects a right to personal development and the right to establish and develop relationships with other human beings and the outside world.'
24. The Appellant's studies and work have been undertaken in order that he can become a Ship's Master. The Maritime and Coastguard Agency has advised the Appellant that the course he wishes to take is only available in the United Kingdom. ... He has never breached his conditions of entry clearance in the United Kingdom and has been successful in his previous courses of study. The consequence of the refusal is that he cannot progress his chosen career. I have found that he did not attempt to deceive the Entry Clearance Officer on his first application in 2008, and I find that the decision on this application is an interference with his right to respect to a private life and would have consequences of such gravity as potentially to engage the operation of Article 8. I have considered the decisions in MG (assessing interference with private life) Serbia and Montenegro  UKAIT 00113; Razgar  INLR 340 and Huang  UKHL 11; and find that the decision to refuse entry clearance was not proportionate." (emphasis added)
The "Appeal Allowed" Letter
- Following the AIT decision, Mr. Peter Bart Plange, Visa Support Assistant, acting for the Visa Department of the British Deputy High Commission in Chennai sent an "Appeal Allowed" letter dated 31 July 2009 addressed to Mr. Atapattu, which stated as follows:
This is with reference to your appeal against the Entry Clearance Officer's decision to refuse you a visa to the United Kingdom. You will be pleased to know that the appellate authorities have allowed your appeal.
If you still wish to go to the United Kingdom, you may submit your passport with a new offer letter from the University in the UK at the Visa Facilitation Services on any working day Monday-Friday between 0800hrs - 1600hrs.
The Entry Clearance officer will consider your application based on the documents submitted by you. However you may wish to note that you may be called for an interview. If you wish to provide any further documents you may do so at the time of the interview.
Please note that you will not be required to lodge a fresh application or pay a visa fee and ensure that this letter is attached to your passport. If you have any enquiries, you may write to email@example.com.
Please note that your passport must be submitted through VFS office only
[Yours etc ]
Note: Please note that this letter is valid only for 6 months from the date of issue."
- The following is to be noted from the Appeal Allowed letter. First, it invites Mr. Atapattu to submit not only his passport, but also a new "offer letter" from the UK university in question and points out that the submission must be done at the Visa Facilitation Services ("VFS") office. The Appeal Allowed letter itself was required to be attached to the passport when submitted. Secondly, it points out that, upon re-submission, the ECO will "consider" the application. Thirdly, the Appeal Allowed letter is stated to be "valid" only for 6 months i.e. in the present case until 31 January 2010.
- Mr. Atapattu says, and I accept, that this Appeal Allowed letter was first received, by Mr. Atapattu's wife, in the second week of September 2009. At that time, Mr. Atapattu was at sea serving as chief officer on the "MV Kota Hapas". In fact Mr. Atapattu had commenced his work on that vessel on 4 September 2009 at a monthly pay US$6250. He served on the vessel until 9 January 2010 and returned to Sri Lanka on 11 January 2010.
The February Offer Letter
- By letter dated 26 November 2009 to Mr. Atapattu, Fylde College confirmed his acceptance on the Orals Course due to commence on 15 February 2010 ("the February Offer Letter"). The letter, clearly written with visa requirements in mind, stated as follows (italics are my added emphasis):
"Dear Mr. Atapattu
VISA LETTER - Confirmation of Acceptance and Official Receipt
ROUTE - Student Visitor Visa
I am pleased to confirm that the following student has accepted a place at Blackpool and The Fylde College and has paid the following fees
Student name: Luck Saman Atapattu
Date of Birth: 25/11/1965
Nationality: Sri Lankan
Passport number: M2296801
Education provider: Blackpool and The Fylde College
Sponsor Licence No: JFRQW7580
Course Title: Master Mariner Orals Course
Qualification awarded on completion: Preparation course for external exam - Master Mariner on successful completion.
Duration: 4 weeks plus 2 weeks for Maritime and Coastguard Agency Orals Examination
Start Date: 15th February 2010
Expected End Date: 12th March 2010
Latest date to join Course: 26th February 2010. Nominally.
In the unlikely event that you are unable to arrive by this date please contact the college for further advice.
[the letter then records that the tuition fee of £630 had been paid in full]
The above student satisfies the entry requirements for the course and has been given an Unconditional Offer.
The College is a member of the British Council and would be obliged if the above named could be granted a Student Visitor Visa
Please note that this letter is only valid for 6 months
*Documents provided to assess the suitability to complete the course
Completed Sea Service Declaration Form
Copy of Passport
Copy of Seafarer's Discharge Book
Copy of Chief Mate Certificate of Competency
You will be required to take all the above original documents to your local entry clearance officer when applying for your visa. If you do not your visa may be refused."
Re-application for a visa: January and February 2010
- In January 2010, Mr. Atapattu re-applied for a visa to enable him to study on the February 2010 course at Fylde College. There is some dispute as to the precise sequence of events in January and February 2010. Mr. Atapattu has given relevant evidence in two signed witness statements with contemporaneous emails. The Defendant has produced one document and relies on a statement made in the email sent by Mr Jolliffe on 22 December 2010. That statement was presumably made on instructions, but not in any way verified by any representative of the Defendant. The position, as I find it to have been, is as follows.
- On 13 January 2010 Mr. Atapattu submitted his passport and the Appeal Allowed letter to the VFS office in Colombo. He did this by handing in these documents in person at the British High Commission in Colombo. Mr. Atapattu said in his witness statement that, at the same time, he had with him the February Offer Letter, but the relevant officer at the VFS office refused to accept that offer letter, saying that it was not necessary at that time. When Mr. Atapattu pointed out that he had been expressly asked to submit the offer letter along with the passport, he was told that the visa officer would call him for an interview to check this and other documents, if need be. In her counsel's email, by contrast, the Defendant asserted merely that Mr. Atapattu "did not provide an offer letter from the college as required". However the Defendant does not respond at all to Mr. Atapattu's account of why he did not provide the offer letter at that time. I prefer and accept Mr. Atapattu's account.
- Subsequently, as he had received no response or acknowledgment regarding his passport and his visa, Mr. Atapattu contacted the High Commission's visa section by telephone and spoke to a Mr. Chanaka Rajaratne. In his first witness statement, Mr. Atapattu said that this call took place in the first week of February 2010. However, upon receipt of Mr. Jolliffe's email, Mr. Atapattu checked back and found some relevant emails which he exhibited to his third witness statement. In that third witness statement, he put the date of the telephone call with Mr. Rajaratne as being on, or just before, 28 January 2010. In that call, Mr. Rajaratne advised Mr. Atapattu to send to him by email a scanned copy of the February Offer Letter. Mr. Atapattu then sent the February Offer Letter by email to Mr. Rajaratne in the VFS Office in Colombo. He produced a copy of an email sent to Mr. Rajaratne dated 28 January 2010 showing that there were three file attachments to the email, including the February Offer Letter and a further copy of the Appeal Allowed letter.
- Mr. Atapattu states, and I accept that, what then happened was that, in the absence of any acknowledgement from Mr. Rajaratne in Colombo, Mr. Atapattu sent the February Offer Letter, together with other documents, to the High Commission in Chennai in India. By email dated Friday 12 February 2010 and sent to the Chennai email address specified at the foot of the Appeal Allowed letter, Mr. Atapattu wrote, under the title "Delay of visa for the appeal allowed letter" as follows:
"I submitted my passport and the appeal allowed letter on 13th January 2010 to the VFS office, Colombo. The person who got those documents refused to take the new offer letter from the University in the UK though I asked him to take it as well. And said you will call for an interview if needed. On 28th January 2010 I e-mailed the college letter to the VFS office Colombo at their request.
My course will start on 15th Feb. 2010. Therefore please be kind enough to make a fair arrangement for me to get visa as soon as you can, to attend the course on time. Please find attached documents enclosed with this letter"
The attached documents included the Appeal Allowed letter and the February Offer Letter.
- On the same day, 12 February 2010, Mr. Atapattu received an immediate "out of office auto reply" from the Chennai email address. This was a lengthy standard form email from Visa section of the British Deputy High Commission in Chennai. It stated, inter alia, as follows:
"We aim to address all frequently asked questions in this automated information sheet, which covers: status enquiries, appeal rights and procedures and withdrawal requests.
In the event that we consider that this reply has not addressed your specific query, we will respond as soon as possible and within a maximum of 20 working days.
STATUS ENQUIRIES (including allowed appeals)
At times due to seasonal high volumes we may be unable to meet the target time scales given below. We apologise for the delay if this has occurred.
Allowed appeals: the AIT will send the determination to our office; you will not need to contact our office to advise. On receipt of the allowed determination from the AIT we will request for you to resubmit your passport and any other relevant documentation required which may be specified.
We aim to send this request to you within 3 weeks of receipt of the appeal allowed determination and on receiving your passport we aim to return the same to you within 15 working days." (emphasis added)
- Finally, in this regard, the Defendant has produced a copy of the February Offer Letter marked with a date stamp "Received 15 February 2010"; and this is said to evidence receipt by the High Commission at Chennai.
- By Mr. Jolliffe's email, the Defendant asserts, first, that there is no record of the Colombo office having received, either by email or fax, the February Offer Letter and secondly, that, as shown by the date stamp, it was only received in Chennai on 15 February 2010, the same date as the course at the Fylde College started. However no evidence to support this assertion is produced, either from Mr. Rajaratne or anyone else in the Colombo office or anyone from the Chennai office or anyone else.
- I am satisfied, on the basis of Mr. Atapattu's witness statements, the email of 28 January 2010 and the two emails of 12 February 2010 that:
i) Mr. Atapattu did send the February Offer Letter to the Colombo office by email on 28 January. The account given in his later email of 12 February to the Chennai office is contemporaneous evidence which supports the evidence provided in his witness statements and by the email of 28 January itself. Further there is no reason to believe that that email was not received by Mr. Rajaratne.
ii) The February Offer Letter was sent to the Chennai office by email on 12 February 2010 and was received by the email system of that office on that date. This is established by the production of Mr. Atapattu's email and of the automatic reply email from the Chennai office of the same date.
iii) Whilst it may be that it was not until after the weekend, on the Monday 15 February 2010, that someone in the Chennai office stamped the Offer Letter as received, this does not alter the fact that on 12 February that office sent out an acknowledgement of receipt, with substantive information, on the previous Friday.
- As to the Defendant's suggestion that the February Offer Letter was received only on the very date that the February course started, and the apparent suggestion that this was the reason, or a reason, why the visa was not granted, I observe as follows:
i) As indicated above, the premise is not correct. The Offer Letter for February was received by the Chennai office on 12 February 2010.
ii) The February Offer Letter itself stated that Mr. Atapattu had until, at least, 26 February 2010, in which to join the course, and further, suggested the possibility of joining the course after that date.
iii) The Defendant has not produced any evidence at all that, as a matter of fact at the time, the reason for the failure to deal with the application was due to the fact that the February Offer Letter had been received late or too late.
February to June 2010
- Mr. Atapattu says, and I accept, that after the events of February, he made regular inquiries with the Colombo office, both by phone and in person, as to the "status of his passport" He was told by officers at the Colombo office that they were waiting for a reply from the Chennai visa office. This suggests that the passport had been forwarded, at some time, from Colombo to Chennai. Again, the Defendant has provided no information to the Court as to what happened to the passport once it had been handed over at Colombo on 13 January 2010. On the advice of the VFS office in Colombo, Mr. Atapattu went to the High Commission in Colombo, but was not allowed entry. The start dates for the February, and the May, courses at the Fylde College came and went.
- On 4 May 2010, Mr. Atapattu wrote to Dr. Peter Hayes, the British High Commissioner in Colombo, setting out the details of what had happened and inquiring about his passport and visa. On the next day, 5 May 2010, he sent a further letter, this time to the Visa Officer at the British High Commission in Colombo. The letters of 4 May and 5 May were in identical terms, save that the later letter had an important additional paragraph towards its conclusion. The 5 May letter stated, inter alia, as follows:
"I would like to inform you that, on 13.1.2010, submitted my Passport & Appeal Allowed letter to the "UK Visa Application Centre" ... Colombo. But until now I couldn't get visa or my passport back.
Apart from all these I inquire about my visa status through telephone from the British High Commission in Colombo, Sri Lanka recently. Although they take my passport no. and telephone no. to call me back, nobody got back to me.
The course I applied for visa was already over on last March 2010 and I could not book a new course immediately this year. In the meantime, my company calling for re-employment as soon as possible, because I gave my rejoining date as mid April 2010 when I signed off from my last vessel on 11th of January 2010.
Due to this matter I could not re-join my company as I informed and also breached the employment contract with them. Therefore I lost most of my earnings for nothing.
I require my passport as soon as possible to go back to my job, because I am not doing a land job in Sri Lanka, I am travelling all over the world as Chief Officer in Merchant Navy
Please be kind enough to let me know why my visa processing is taking so long and where was gone wrong, considering above factors."
The penultimate paragraph in bold above is the passage which had been added to the text of the letter of 4 May 2010. (Italics are my emphasis).
- There was no response to the letters of 4 and 5 May. Over a month later, on 11 June 2010, Mr. Atapattu wrote a letter to Mr. Peter Bart Plange, the Visa Support Assistant in the Visa Department at the British High Commission in Chennai. The letter was in practically the same terms as the letter of 5 May 2010, including the wording of the penultimate paragraph of that letter. There was no response to this letter. Then, on 15 June 2010, Mr. Atapattu's solicitors in London, faxed a letter before action to the British High Commission in Colombo, seeking, as a matter of urgency, the grant of entry clearance and payment of damages. Again, there was no response to this letter.
- The application for judicial review was filed on 21 July 2010. Following the undertaking given to Mrs. Justice Dobbs on 9 August, there was continuing correspondence between the parties as to the grant of a visa for a future course at the Fylde College and the return of the passport. It appears that in fact the passport was returned to Mr. Atapattu at the end of August. On 30 August 2010, Mr. Atapattu's employer wrote a letter, indicating when he left the vessel in January 2010, Mr. Atapattu had told him that he would rejoin in May 2010 after completing his Masters Oral course, but that, from May 2010 he could not offer him employment as he did not have his passport and offered vacancies to others. This letter will be relevant to issues of causation and quantum.
- After the conclusion of the oral hearing, Ms Asanovic referred me to the then pending appeal to the Court of Appeal in a case called Mohammed v Home Office. On her application, which the Defendant did not oppose, on 25 January 2011 I stayed these proceedings until after judgment in that case. Judgment of the Court of Appeal was handed down on 29 March 2011 and the parties then put in written submissions. I consider the Court of Appeal's judgment below.
Effect of a successful appeal to the AIT
- Following a successful appeal to the AIT (and now to the First Tier Tribunal (Asylum and Immigration Chamber), what the Secretary of State is to do depends in part on whether the AIT makes an express direction.
- Section 87(1) of the Nationality Immigration and Asylum Act 2002 provides that where the Tribunal allows an appeal under ss. 82, 83 or 83A, it may give a direction for the purpose of giving effect to its decision. S.87(2) then provides that a person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1). In this event, there is a statutory duty upon the decision maker to follow the AIT's direction
- However, where there is a successful appeal, but the Tribunal does not give a s.87(2) direction, the position is governed by the UKBA's own internal guidance for entry clearance staff on the handling of appeals lodged outside the United Kingdom entitled "Appeal Procedures for Posts" ("the Entry Clearance Guidance" or "the Guidance"). Ms Asanovic contends that this is a published policy. It was certainly publicly available on the UKBA's visa website and thus available (albeit not seen by) Mr Atapattu when he re-submitted his application in January 2010. The version of the Entry Clearance Guidance in force from July 2009 up to 27 May 2010 provided as follows:
"Appeal procedures for posts
This is internal guidance for use by entry clearance staff on the handling of appeals lodged outside the United Kingdom (UK). It is a live document under constant review and is for information only.
APL 2.5 Appeal allowed - no Directions given
Post receives an allowed determination and Tribunal has not given directions. SAT has not applied to court for the case to be reviewed.
Entry clearance appeals are considered on the basis of the facts at the time of the original application not at the date of the appeal hearing. An allowed appeal means that the IJ has ruled that the ECO was wrong to refuse entry clearance not that the applicant is entitled to entry clearance.
If the applicant still wants to travel, the ECO should normally issue the entry clearance as quickly as possible unless :
- there has been a significant and material change in circumstances since the refusal decision of which the Tribunal would be unaware; or
- there has been a material deception which has come to light of which the Immigration Judge would not have been aware;
- the judge has failed to adequately consider the evidence or facts of the case in his determination; or
- the results of checks that instigated prior to refusing applicant came back after the appeal was heard.
If the above circumstances apply, Post should first consider challenging the determination (see APL 2.5 below). If unsuccessful the ECO should then consider re-refusing the applicant (see APL 2.7 below)."
APL 2.5 has been amended with effect from 27 May 2010, substituting the words "within 8 weeks of receiving the determination" for the words "as quickly as possible". The Entry Clearance Guidance continues, at APL 2.7, as follows:
"APL 2.7 Re-refusing an application where appeal is allowed but no directions given
An ECO should normally act in accordance with a determination unless the circumstances in APL 2.5 apply
Before re-refusing an applicant, Post must first ask the UKBA Specialist Appeals Team (SAT) to challenge the decision (see APL 2.6 above). If the SAT challenge the decision, the ECO must take no action until UKBA inform them of the final appeal determination.
An ECM must endorse any re-refusal. Post must:
- copy the re-refusal notice to the AIT to link with their file;
- send a cover note to advise the Tribunal that the appellant has been re-refused and [the appellant] may seek a direction under Section 87(1) of the 2002 Act to direct the ECO to issue entry clearance;
Thus on any view an ECO could not refuse the re-application, without clear evidence and without giving the applicant an opportunity to apply to the AIT for a s.87(1) mandatory direction in respect of the earlier determination. The policy is that the Defendant should either (a) issue entry clearance quickly or (b) appeal against the AIT's determination or (c) refuse the application, thereby giving the applicant the opportunity to apply back to the AIT for a direction forcing the Defendant to issue entry clearance. If, in such a case, an ECO simply does nothing, this will frustrate the Defendant's own internal policy and leave the applicant, whose appeal to the AIT has been successful, entirely in limbo.
- ask the Tribunal in the covering note to consider the ECO's reasons for refusing to issue entry clearance when considering any application for a direction. The reasons why the ECO was not prepared to issue entry clearance should be clear and factual and any relevant documentary evidence should be provided" (emphasis added)
Finally, APL 2.15 is headed "Appeal allowed - contacting the appellant" and provides, inter alia, as follows:
"APL 2.15.1 What is the timeframe?
Once Post is notified of an allowed appeal, the appellant should, within a maximum of three weeks, either be invited to resubmit their passport so that a visa can be issued or (in a limited number of cases) so that a visa can be re-refused. Unreasonable delays in contacting appellants with allowed appeals often result in complaints and requests for judicial review."
As regards the effect of the Entry Clearance Guidance documents, the Defendant contends that they are no more than targets for internal purposes only; they do not impose upon the Defendant obligations either to all the world or to this particular claimant.
Judicial consideration of allowed appeals: the Rahman case
The predecessor to the Entry Clearance Guidance - the Diplomatic Service Procedures (DSP) - was considered by Newman J in R (on the application of Azazur Rahman) v Entry Clearance Officer  EWHC 1755 (Admin). The relevant provisions of the DSP were in terms similar to the current Guidance; in particular they provided that, following an allowed appeal, on re-application "entry clearance should be issued UNLESS there has been significant and material change of circumstances ... or a material deception". In that case, the issue was whether, following an allowed appeal to an adjudicator with no s.87 direction, it was open to an ECO to re-refuse an application for entry clearance or rather whether, even in a case of fraud or deception, the ECO's only remedy was to proceed by way of further appeal from the adjudicator's decision. Newman J held that it was open to the ECO to re-refuse in the circumstances where further evidence had come to light suggesting the use of forged documents in the application. Newman J made a number of points relevant to the present case. First, the DSP constituted only instruction to ECOs; they do not have the force of law (judgment §2); Secondly, however, the judge held that the DSP summarised accurately the effect, in law, of an appeal allowed decision (§§2, 3, 4 and 8). Thirdly, entry clearance falls to be determined in accordance with the facts as they exist at the time that the ECO makes his decision (§8). Fourthly, the effect of allowing an appeal is a finding that the initial refusal was unjustified (§§23, 24). Fifthly, on re-application following appeal, an ECO is entitled to reach a different conclusion, if there is a material change of circumstances. However, on re-application, the ECO may not attempt deliberately to circumvent an adverse appeal decision (§26). Finally, at §41, Newman J said:
"So far as the more general submissions of [counsel for the applicant] are concerned, namely his plea that this court should accord due respect to the binding judicial determination of an adjudicator, I should add that the upshot of the argument and the decision of this court is not that the decision of the adjudicator is not binding and effective as between the ECO and the applicant at all. It will, in the circumstances which I have indicate, be effective to the limits which the law permits it to be effective. It will be effective so as to provide the framework for the decision which has to be made, and the framework of the decision is the facts as they are at the time the Entry Clearance Officer has to reconsider the matter in the light of the adjudicator's decision. The Entry Clearance Officer would not be free to depart without reason from the determination of the adjudicator so far as it relates to facts which remain the same at the time the Entry Clearance Officer is considering his position." (emphasis added)
Summary of position
The Defendant says, and I agree, that in general there is no duty to decide visa applications within a specified time or a reasonable time. However this does not necessarily apply where there has been an allowed appeal.
As regards Mr. Atapattu's re-submitted application for entry clearance made in January 2010, the position as a matter of statutory duty and/or public law was as follows. First, the Defendant was not under any absolute duty, whether statutory or by way of public law generally, to implement the immigration judge's decision and to grant the application without more. Secondly, however, there was a clear internal policy of the Defendant's to grant that application in certain circumstances, or more accurately to do so unless certain circumstances pertained. Thirdly, I consider that, as a matter of public law, the Defendant was under the following duties:
i) to consider the re-submitted application;
ii) at the very least, to do so within a reasonable time (see APL 2.15.1 - contact within 3 weeks);
iii) in doing so, to apply its own internal guidance, unless there was good reason to depart from that guidance (see generally De Smith's Judicial Review (6th edn) §§5-120 to 5-121 and, most recently R(WL Congo) v SSHD  UKSC 12  2 WLR 671 per Lord Dyson at §§28 to 30, 35 and 36;
iv) applying the Guidance at the relevant time, to consider the application as quickly as possible;
v) both under the Guidance and as a matter of general law confirmed in Rahman, to grant the application as quickly as possible unless one of the four exceptional circumstances identified in APL 2.5 applied.
Finally, as a matter of public law, the Defendant was required, within that reasonable time, either to grant the application or to refuse the application and, in either event to return the applicant's passport. (see APL 2.15.1 - "grant or refuse"). It is plain, from the Guidance, that time is an important factor. If an ECO does not follow guidance, then prima facie there is a breach of public law either because (a) internal guidance actually represents law established by cases or (b) because the Defendant is required to follow its own guidance, unless there is good reason to depart from it.
In my judgment, and absent any further explanation, there was no justification for the Defendant, after the expiry of a reasonable time, having done nothing and retaining the passport. Accordingly, on the facts of this case, I consider that the failure of the Defendant to deal with the re-submitted application until, at the earliest August 2010, constituted a breach of public law (whether that breach is characterised as being unlawfulness, or Wednesbury unreasonable or a breach of a legitimate expectation or unfairness amounting to an abuse of power or improper failure to exercise a power.)
The Parties' contentions and the issues
Against this factual and legal background, Mr. Atapattu contends that the Defendant:
i) wrongfully retained his passport and is thus liable for damages for conversion of the passport;
ii) owed him a common law duty of care in relation to his re-submitted application for entry clearance, and was in breach of that duty (and thus negligent) in not dealing with that application;
iii) interfered, without justification, with his right to respect for his private life under Article 8 (1) ECHR and further his right to peaceful enjoyment of his possessions under Article 1 Protocol 1 ECHR by (1) failing to return his passport and (2) failing to grant entry clearance.
The Defendant submits as follows:
i) the retention of the passport did not amount to the tort of conversion because (a) Mr. Atapattu did not have a sufficient interest in the passport to bring a claim and/or (b) Mr. Atapattu did not make an unconditional demand for the return of the passport and/or (c) the Defendant did not unconditionally refuse to return the passport to Mr. Atapattu;
ii) she did not owe any common law duty of care to Mr. Atapattu in relation to the re-submitted application for entry clearance; in exercising entry clearance powers, the Defendant was discharging a statutory function, in respect of which there was no basis for the imposition of a private law duty of care;
iii) Article 8 ECHR does not apply to the present case; neither the retention of the passport nor the failure to grant entry clearance in good time or at all related to Mr. Atapattu's private life within the meaning of Article 8; nor did they interfere with Mr. Atapattu's private life sufficiently to give rise to a breach of Article 8; as to Article 1 Protocol 1, neither a passport nor the claim to the future grant of a visa is a "possession" within the meaning of the term in that Article.
Thus there are essentially three issues between the parties - conversion, negligence and ECHR claims, and I now deal with each in turn.
Relevant legal principles
Conversion is the unauthorised dealing with the claimant's chattel so as to question or deny his title to it: Clerk & Lindsell on Torts (20th edn) §17-06. Claims for conversion are now brought under the Torts (Interference with Goods) Act 1977 ("the 1977 Act"), which, in the main, made only procedural changes and collectively re-named conversion and other torts as "wrongful interference with goods". However the 1977 Act did abolish the common law tort of "detinue"; whilst at the same time, in s.2(2), introducing a new statutory form of conversion tort to cover a lacuna which would otherwise have arisen.
Title to sue
A person has title to sue for conversion if and only if he had, at the time of the conversion, either actual possession or the immediate right to possess the property concerned. It is possession, not ownership, which gives title to sue. See Clerk & Lindsell §17-43.
Conversion can be committed in a myriad of circumstances. The most relevant category of conversion, for present purposes, is described in Clerk & Lindsell as "wrongful retention" and explained, at §17-22, under the heading "Conversion by keeping or refusal to return", as follows:
"Conversion by keeping: demand and refusal The ordinary way of showing a conversion by unlawful retention of property is to prove that the defendant having it in his possession, refused to surrender it on demand. Indeed such a demand is generally a precondition of the right of action for detention1: the mere unpermitted possession of another's chattel is not as such a conversion of it".
Clerk & Lindsell continues, at §17-24:
"Demand must be unconditional and specific The demand should be unconditional in its terms, .... ,. If the demand is unclear or equivocal, for example because it is merely a request for "immediate commencement of the process of return" of goods, it may not be enough."
Then at §17-25 Clerk & Lindsell deals with refusal as follows:
"Refusal must be unconditional. The refusal must also be unconditional115. A person on whom a demand for goods is made may not have them immediately available even though they are under his control;... he cannot be required to act at a moment's notice, or refuse at his peril. . .... a person in possession of another's goods has the right to a reasonable opportunity to check whether the person asking for them is really entitled to them."
Footnote 115 highlights the issue in the present case, in the following terms:
"Mires v. Solebay (1678) 2 Mod 242. In Schwarzschild v. Harrods  EWHC 521 (QB)... the court seemingly thought that mere inaction in the face of a demand could not be a refusal, but this must be doubtful. A defendant in possession can hardly be allowed to stymie conversion proceedings by simply doing and saying nothing."
Finally at §17-26, Clerk & Lindsell still under the heading of "wrongful retention" addresses delay as follows:
"Delay in complying with demand. A bailee or person in possession of the goods of another must normally deliver them up forthwith on demand. .... delay in complying with the demand will not only render the defendant liable in conversion, but will normally make him an insurer of the goods in respect of all subsequent damage on the basis that he is thereafter in breach of bailment ... . However in the event of doubt as to the claimant's entitlement the defendant is entitled to a reasonable time to make enquiries. ... But, once the reasonable time has elapsed the defendant must hand over the goods. If he does not do so he will be liable in conversion and in addition the goods will be entirely at his risk thereafter."
Mitchell v Ealing LBC  1 QB 1 is cited as authority for these propositions.
Indeed, the case where the goods are lost or destroyed (rather than merely kept) is also identified by Clerk & Lindsell as a distinct category of conversion: see §17-20. At common law, where a defendant, following a demand, failed to return goods, because the goods had been lost or destroyed, the position was as follows. First, if the goods had been lost before demand (or before the lapse of a reasonable time after demand), then the defendant was only liable if the goods were lost as a result of the defendant's own negligence. The claimant had a claim for breach of bailment and also for detinue. Secondly, if the goods had been lost after the lapse of a reasonable time following demand, then the defendant was strictly liable for their loss; here the claimant had, at least, a claim for detinue. This strict liability for loss after demand was commonly referred to "liability as an insurer". Thirdly, in either event, there was no claim for conversion, because there was no voluntary act by the defendant. As a result of the abolition of detinue in the 1977 Act, s.2(2) was introduced to make the bailee liable in (statutory) conversion in this situation.
The central issues here
Against this background, the following issues of law and fact fall for determination:
i) Does Mr. Atapattu have title to sue for conversion?
ii) Did Mr. Atapattu make a sufficient demand for the return of his passport?
iii) Refusal to return:
a) As a matter of law, does Mr. Atapattu have to show that the Defendant "refused" to return the passport or is mere failure to return sufficient?
b) Depending on the answer to (a) above, did the Defendant's conduct amount to a refusal or failure to return?
(i) Title to sue
The Defendant argued that Mr. Atapattu does not have title to sue because his Sri Lankan passport is the property of the Sri Lankan government, rather than his property, and relied on In re Suwalsky  B & C R 142 to support her argument. I do not accept this argument. Re Suwalsky does indeed establish that, at least in the case of a British passport, the passport is "the property" of the Crown, rather than the passport holder. However it is possession, or the immediate right to possession, which is relevant to title to sue, and the facts in Suwalsky illustrate clearly the distinction between the concepts of ownership and possession. In Suwalsky a bankrupt sought the return of his passport from the trustee in bankruptcy. The Court held that, since the passport was the property of the Crown, it did not vest in the trustee in bankruptcy. The Court held that the passport holder, remaining the person entitled to possession of the passport, was entitled to the return of possession of the passport. In my judgment, Mr. Atapattu's right to possession of his passport is sufficient to give him title to sue for conversion.
(ii) Unconditional demand
It is clear from the foregoing that, as a matter of law, in order to establish this claim for wrongful retention, Mr. Atapattu must show that he made an unconditional demand for the return of the passport. Accordingly, I do not accept Ms. Asanovic's alternative argument that where, as here, goods are given to the defendant for a limited time and purpose, mere retention beyond that time and/or after that purpose cannot be achieved, amounts to a conversion, without the need for a demand for return. There is no authority to support this proposition, and it is contrary to the requirement for a demand.
In some, but not all, of the authorities, the demand required has been characterised as "clear" and/or "unequivocal" (see e.g Schwarzschild). Certainly in some cases, as a matter of fact, the request in question has been construed as being insufficiently clear to constitute a demand for return. In my judgment, the question is really one of determining what, objectively, the recipient of the request in question would reasonably have understand by the words used, against the background of the particular factual circumstances in the case. To this extent, I do not accept the Defendant's submission that if a demand has to be inferred, then it is not possible for it to be characterised as sufficiently clear and unequivocal to constitute a demand.
As regards "unconditionality", a demand for the return of goods after work has been done on the goods (say, in a particular physical state or with repairs completed) may well not be sufficiently unconditional. Such a demand would amount to a request for return, but only if and when the work had been done.
In the present case, therefore, the question is whether, by his letters of 5 May 2010 and 11 June 2010 Mr Atapattu made an unconditional demand for the return of his passport. More specifically, did the letter of 5 May (set out at paragraph 41 above) amount to (1) a demand for the return of his passport, whether with or without a visa endorsed on it or rather (2) a demand for the return of his passport but only with a visa endorsed on it? If the former, the demand was sufficiently clear and unconditional.
In support of the former construction, the Claimant relies upon the penultimate sentence in the letter: "I require my passport as soon as possible to go back to my job, because I am not doing a land job in Sri Lanka, I am travelling all over the world as Chief Officer in Merchant Navy". I accept that, on its own, this constitutes an unconditional demand for return. Additionally, the very fact that Mr. Atapattu had added this sentence in to the letter which he had sent the previous day only serves to emphasise the nature of the request as a demand.
In support of the latter construction, the Defendant argues that the final sentence in the letter: "Please be kind enough to let me know why my visa processing is taking so long and where was gone wrong, considering above factors" demonstrates a continuing and/or renewed request by Mr. Attapattu for the grant of a visa. The use of the present tense "is" indicates that he has a current visa application which he is pursuing.
I do not accept that this is the effect of that sentence. First, Mr. Attapattu's application for a visa had been specifically in respect of the February course at the Fylde College. By the time of this letter that course had been and gone. Secondly, there is no specific mention, in the letter, of the May 2010 course at the Fylde college. Thirdly, at that point in time, Mr. Atapattu did not even have an offer letter for the May 2010 course. Fourthly, Mr. Atapattu had not booked any further course. Indeed in the letter itself Mr. Atapattu made the first and fourth points when he stated: "The course I applied for visa was already over on last March 2010 and I could not book a new course immediately this year." In summary, Mr Atapattu was not, and could not have been, applying for a visa for the May course or indeed for any course.
In these circumstances, I do not consider that the use of the present tense, in "my visa process is taking" to be an indication of a then existing application for a visa. Rather I consider that it is a loose use of grammar by a person for whom English was not his mother tongue. Moreover on the basis of everything that Defendant knew at the time, about the February course and about the requirements for the grant of a visa, she could not reasonably have understood this letter as a request to grant a visa and to hold on to the passport until such visa was granted; not least because in fact no visa could have been granted at that time. Furthermore at that stage since he had no particular future course at Fylde lined up, Mr Atapattu was keen to be able to work with his employers in the meantime, as he made clear in the demand.
For these reasons, the letter of 5 May did amount to a unconditional demand for the return of the passport, with or without a visa. Similarly the request was repeated in precisely the same terms in Mr Atapattu's further letter of 11 June 2010. That he sent a chasing letter in exactly the same terms shows a consistency of purpose, in obtaining the return of his passport.
(iii) Refusal and/or failure to deliver
(a) The law on refusal
Ms. Asanovic submits that, as a matter of law, there is no need for an express refusal to deliver. A failure to deliver in response to a demand, at least after the expiry of a reasonable period, is sufficient. She relies in particular on the decision of O'Connor J in Mitchell v Ealing LBC, citing Shaw v Symmons  1 KB 799. Here the Defendant signally failed to return the passport for some considerable time following the demand made on 5 May 2010, and despite reminders. On the other hand, Mr. Jolliffe submits that a requisite element of conversion by wrongful retention is a clear and express refusal to deliver or return the goods following the demand; and that on the facts, there was no such refusal. The Defendant relies upon a number of cases, of which Schwarzschild v Harrods is the most recent and perhaps the most significant; Eady J's decision in that case was in turn founded upon the majority decision of the Court of Appeal in Clayton v Le Roy  2 KB 1031. I consider the main authorities in chronological order.
In Clayton v Le Roy, the plaintiff had bought a watch from the defendant jeweller. Later it was stolen, thereafter sold at auction, and then sold to a third party, B. B then sent it to the defendant, who recognised it as the watch he had sold to the plaintiff. Upon being notified by the defendant, B told him that he was prepared to sell the watch back to the plaintiff. Thereupon the defendant wrote to the plaintiff (in a letter dated 16 May 1910) acknowledging that the watch had been stolen and "thinking you might like to repurchase the watch" and informing her that B would be willing to sell it to her. The plaintiff issued a writ in detinue against the defendant for the return of the watch. Then she made a demand for the return of the watch, which the defendant refused. The defendant contended that, at the point of issue of the writ, the plaintiff had no complete cause of action in detinue or in conversion on the ground that the letter of 16 May 1910 did not amount to a refusal to return the watch.
At first instance, Scrutton J (as he then was) rejected this argument and upheld the claim. He considered that the letter of 16 May, effectively putting forward the claim of B, was sufficient evidence of a conversion. The majority in Court of Appeal disagreed. Fletcher Moulton LJ said (at p1048)
"In an action for detinue, ... the Statute of Limitations runs from the time when the cause of action arose; consequently, if nothing has happened to give rise to an action of detinue, there is no period of time which can operate to extinguish the title of the real owner. He may have been deprived of control over his chattel for a hundred years, but it still remains his property, and action will lie to recover it, unless there has been a demand and a refusal which would be sufficient to give rise to a cause of action. If there is a demand by the owner from the person in possession of the chattel and a refusal on the part of the latter to give it up, then in six years the remedy of the owner is barred; it is therefore very important for the owner that the law should lay down the principle that some clear act of that kind is required to constitute a cause of action in detinue. It would be mulcting the real owner of his rights, if the law did not thus insist upon some definite act or deliberate withholding as being necessary preliminaries to the arising of this cause of action. ..." (emphasis added)
Fletcher Moulton LJ then turned to the facts of the case. He found, contrary to Scrutton J's view, that the letter of 16 May "could not be construed as indicating the assertion by the defendant of any hostile title or as any evidence whatever of an intention to detain the watch wrongfully". He continued, by referring both to detinue and conversion, and said (probably in relation to conversion specifically):
"It is necessary to find as a fact that there was a demand and refusal before the issue of the writ ... to say that [the letter of 16 May] is to be construed as evidence of any unlawful act is to do violence to its construction ... The conclusion therefore at which I have arrived is that up to [the] date [of issue of the writ] there was nothing equivalent to a wrongful refusal or conversion on the part of the defendant and that the action therefore cannot be maintained."
At the end of his judgment, Fletcher Moulton LJ (at pp. 1051-2) considered the principle that the defendant must be given a reasonable time to inquire as to the plaintiff's title, and concluded on the facts, that "the moment had not then arrived for the defendant's final decision". In this way, he recognised that in general in any case the moment would or might arrive for the defendant to make a final decision. He did not answer the question of what was to happen if, when that moment did arrive, the defendant did nothing and merely retained the goods.
Farwell LJ reached the same conclusion, stating:
"Whether the action is one of detinue or trover [conversion], proof that the detention is wrongful and amounts to a conversion forms the gist of the action; there must be an element of wrong; the mere fact of possession of the article is not enough to support the action."
His analysis concentrated upon the concept of "withholding" rather than refusal. As regards the letter of 16 May, he said he was "quite unable to adopt the construction which was placed on it by Scrutton J", describing the letter as merely "stating [the defendant's] belief that it had been stolen and asking his views upon the matter. (Vaughan Williams LJ dissented, agreeing with Scrutton J's analysis of the 16 May letter.)
I make the following observations on Clayton v Le Roy. First, although it was a claim in detinue, the majority of the Court of Appeal considered that the position was the same in conversion and in fact appeared to apply the law of conversion. Secondly, Fletcher Moulton LJ concluded that for conversion there is a requirement for both a demand and a refusal; Farwell LJ was less clear. Thirdly, it was a case where there was a communication by the defendant to the plaintiff (rather than mere failure to return or inaction). Fourthly, the case turned on the facts, namely the construction of the letter of 16 May. The majority decided in favour of the defendant apparently on the basis that that letter did not amount to an assertion adverse to the title of the plaintiff, although they do not expressly state that the letter did not amount to a "refusal". Fifthly, and importantly, the "refusal" in issue pre-dated any relevant "demand". Thus, as both members of the majority pointed out, the claim failed anyway because there was no relevant demand. Finally of course the case turned on the technical point of whether the cause of action had been completed at the time of the issue of the writ. The court recognised that the plaintiff remained free to issue a further writ, after the later demand and refusal.
In Mitchell v Ealing LBC the defendant council had agreed to store the claimant's furniture. The claimant then demanded its return and a time and place for delivery was agreed. By mistake, the defendant's employee failed to turn up. When the parties turned up on a later agreed date, it was discovered that the furniture had, in the meantime, been stolen. The claimant claimed for the return of the goods or alternatively their value. O'Connor J held the defendant council liable. First, having identified the defendants as gratuitous bailees, he referred to the general principle that such a bailee is bound to deliver up the goods when demand is made and "if the bailee is unable to deliver the goods he is liable for their value unless he can show that they have been lost without negligence or default on his part and again the time of such loss is of importance" (This is the principle referred to in paragraph 61 above). Secondly, he recorded the defendant's case that its failure to turn up on the first date of delivery "cannot be ranked as a refusal to deliver the plaintiff's goods"; it was merely a mistake. The learned judge then cited two leading textbooks on the law of bailment, both of which referred to the concept of "refusal" in the context of conversion. In particular he said (at 8A-C):
"[[Paton] has this to say under the heading "Delay in Returning":
'If the depositee is in mora (i.e. if he improperly refuses to restore the goods), then the goods are held at his peril. This was the rule of civil law, but as the refusal to restore would constitute the tort of detinue, an action for the full value of the chattel would lie at once. Subsequent restitution would merely go to reduction of damages'
The present case it will be seen, does not amount to a refusal. Is then an unequivocal refusal a necessary element before it can be said that he goods are held at the peril of the bailee?"
He then referred to the principle that the bailee is not liable if the goods are lost without any default on his part before the demand for return is made, but that, after demand, he is liable, even without fault, if they are lost after the expiry of a reasonable time between demand and occasion for redelivery. He said: "That that is right is plainly supported by other authorities: see, for example Clayton v Le Roy.... It is unnecessary to refer to the facts of that case, but the case on which the plaintiff is really entitled to rely is Shaw & Co v Symmons & Sons  1 KB 799." After explaining the facts in Shaw, O'Connor J commented on that case (at 9B):
"It will be seen by analogy there was no refusal to deliver the goods in that case. There was merely a delay in complying with the demand and it proved to be inexcusable delay."
On that basis, O'Connor J held that from the moment the defendant failed to turn up at the agreed delivery place, they became insurers of the goods and responsible for their loss thereafter.
Barclays Mercantile Business Finance Ltd v Sibec Developments Ltd  1 WLR 1253 concerned goods leased by the applicants to a company which went into administration. The question before the court was whether the applicant's claim for wrongful interference under s.1(a) of the 1977 Act was sufficiently arguable. In the course of his judgment, Millett J made the following observations on wrongful retention of goods. After citing passages from the then edition of Clerk & Lindsell, he said (at 1257H to 1258H)
"[counsel for the applicants submitted] that the making of a demand is not a precondition of the cause of action for damages in conversion. That is so ... Demand is not an essential precondition of the tort: what is required is an overt act of withholding possession of the chattel from the true owner. Such an act may consist of a refusal to deliver up the chattel on demand, but it may be demonstrated by other conduct, for example, by asserting a lien. Some positive act of withholding, however, is required; so that absent any positive conduct on the part of the defendant, the plaintiff can establish a cause of action in conversion only by making a demand. ... so much is clear from Clayton v Le Roy where the need for a demand in a simple retention case is clearly stated.
Then after citing passages from the judgment of Fletcher Moulton LJ, he continued:
"In my judgment, those [passages] show clearly that an overt act of withholding goods from the true owner as a condition precedent to the tort of conversion and that absent any overt act ... the true owner must establish both demand and refusal before he can establish a cause of action.
In my judgment, therefore, to succeed in the present case where the administrators did nothing save retain the gods and decline to give their consent for the applicants retaking possession, the applicants could not succeed in an action for conversion unless they were to establish: (1) an immediate right to possession (2) a lawful demand for redelivery and (3) unreasonable refusal to redeliver." (emphasis added)
On the facts, the key issue was whether the request for return amounted to a demand and not whether there had been a refusal: see 1259D. The case did not address the question of what is sufficient to constitute a refusal and whether it needs to be express. In the above passages, Millett J, whilst referring to the need for an overt or positive act by the defendant, did not say that the refusal itself has to be express or overt; rather that demand and refusal was an alternative to a positive act.
Finally and most recently, Schwarzschild v Harrods a claim for statutory conversion under s.2(2) of the 1977 Act in respect of personal items which had been placed in a safe deposit box at the defendant's premises almost 50 years earlier. Thus it was a claim for "loss or destruction" and not merely wrongful keeping. The defendant contended that the claim was time-barred because the cause of action had accrued in September 1998, by which time the claimant had made a demand which had not been complied with. The Master granted the defendant summary judgment on this basis. The claimant appeal's was heard by Eady J.
Thus, because the issue arose in the context of a limitation defence, it was the claimant, somewhat unusually, who was seeking to establish that both demand and refusal are required as a matter of law, and further that on the facts, at the time relevant to limitation, there had been neither demand nor refusal. The defendant relied upon a letter of December 1997 as the requisite "demand". As regards refusal, the defendant did not accept that it was necessary to show that there was an "unequivocal" refusal, arguing that in some circumstances it was enough to show that a defendant merely neglected to comply with a demand. Eady J, after referring to the two historic causes of action for detinue and conversion and to the abolition of detinue and the introduction of the new statutory conversion in s.2(2) of the 1977 Act, continued (at §20):
"In this case the Claimant relies upon the statutory tort of conversion, as it is now understood, but the elements of her cause of action correspond to those comprising detinue at common law. It is thus necessary, she submits, to establish both that the goods have been demanded from the Defendant and that there has been an unequivocal refusal. The problem about mere inaction is that it is often likely to be equivocal"
Then, after citing the passages from Clayton v Le Roy, the learned judge continued (at §§22 to 24):
"It is true that there are passing references in some authorities to "neglect" or "failure" (as alternatives to "refusal") . ... Yet these are not easy to reconcile with the much fuller reasoning of Fletcher Moulton LJ above. The answer may be to focus on the absence of equivocation. Inaction or neglect may perhaps in some circumstances be interpreted as an unequivocal response, but that is unlikely to be at all common. At all events, it is right that I should be guided by the Clayton decision in the Court of Appeal ... "
It is not an effective answer for a bailee merely to respond that the relevant goods have ceased to be in his possession. .... In such circumstances, the bailee would have been prima facie liable in detinue ...
A bailee would have to overcome his prima facie liability by demonstrating that the items had left his possession without negligence on his part: ..." (emphasis added)
Then dealing with the events of September 1998 and the issue of whether there was a relevant refusal, the judge continued (at §28):
"…even assuming that the relevant items had gone missing and that the Claimant acquired knowledge of that in or about September 1998, those propositions by themselves would not constitute the ingredients for the pleaded cause of action. Statutory conversion, corresponding to the common law tort of detinue, requires a demand for the goods to be returned and an unequivocal refusal, for the reasons identified by Fletcher Moulton LJ in the passage cited above" (emphasis added)
Having so concluded, the judge considered it strictly unnecessary to determine whether the letter of December 1997 constituted an unequivocal demand, although he observed that its terms appeared to be at least equivocal.
I make the following observations on Schwarzschild. First, Eady J held that a clear refusal is required and, on the facts, there was no such refusal. Notably he accepted that the refusal may arise from inaction or neglect, as long as it is unequivocal. Secondly, however, the claim there was for "lost or destroyed" goods under s.2(2) (which formerly lay in detinue only). It was not strictly a "goods kept" case. Clayton v Le Roy which Eady J applied was, by contrast, a "goods kept" case. Eady J does not refer to any such distinction. Thirdly, in so far as it suggests that, in such a "lost or destroyed" case, there is a requirement for a refusal as well as a demand, then it seems at odds with Mitchell (and Shaw) which the judge does not cite. Those two cases suggest that there is no need for a refusal, whether goods are lost before or after demand. In a s.2(2) "lost or destroyed" claim, there is no additional requirement for a refusal as well as a demand; mere failure to return goods following a demand is sufficient to render the bailee liable as insurer thereafter: see Clerk & Lindsell §17-20 fn 90 citing Mitchell.
It is not straightforward to reconcile the various authorities on this issue, and in particular Mitchell (and Shaw) on the one hand, and Clayton v Le Roy on the other or why, it appears that a refusal is required in a "goods kept" case, but not necessarily in a "goods lost" case. My conclusions are as follows. First, for there to be conversion by "keeping", there has to be conduct which amounts to deliberate withholding or interference: see Clayton, supra, per Farwell LJ in particular and Barclays Mercantile , supra, per Millett J. Secondly, such conduct is commonly, but not invariably, found in a demand followed by a refusal: see Barclays Mercantile supra. Thirdly, where demand and refusal is relied upon, the refusal must be clear or unequivocal. Fourthly, however that does not mean the refusal must be found in express words. A refusal may be inferred from other action or inaction. This is the essence of the analysis in Schwarzschild §22. Whether such action or inaction amounts to an unequivocal refusal is a question of fact, in all the circumstances. Thus, fifthly, delay in responding to a demand, beyond a reasonable time, is a common example of a refusal inferred from circumstances: see Clerk & Lindsell §17-26 above and Mitchell . Further, in any particular case, mere failure to redeliver or inaction or silence may be sufficiently unequivocal to constitute a refusal. In this way, the conduct cited in footnote 115 to Clerk & Lindsell (a defendant who simply does nothing) would be sufficiently unequivocal to constitute a refusal, a result consistent with the analysis in Schwarzschild. To seek to "stymie" proceedings in this way is exactly the sort of case where the inference of refusal would properly be drawn.
(b) Refusal on the facts
Applying this analysis, I am satisfied that, on the facts, the Defendant did, clearly and unequivocally, refuse to return the passport to Mr. Atapattu. Although the refusal was not made expressly, it can be inferred from the facts, for two main reasons. First, the refusal can be inferred from the Defendant's failure, over several months, to respond at all to Mr. Atapattu's demands, made in May and June 2010. There was in fact no response at all until well after the issue of these proceedings. The delay, of over three months, was an unreasonable delay and far beyond any period reasonably required by the Defendant to make inquiries: see Clerk & Lindsell § 17-26. In my judgment, whilst the Defendant might have reasonably taken a few days or perhaps even a couple of weeks to inquire, it was unreasonable of the Defendant not to respond at all. By mid-May a reasonable time for looking into matters had expired, and, from then on, the Defendant had failed to meet the demand for return of the passport. That was certainly a reasonable time; given the High Commission's own statement, in the auto-reply dating back to February 2010, that the passport would be returned within 15 working days (paragraph 35 above). Secondly, this inference is supported by the fact that the Defendant was under a positive duty to act. As a matter of public law, the Defendant was required to return the passport within a reasonable time. This is not a case where inaction was otherwise "neutral".
Finally, I am further fortified in this conclusion by the Defendant's failure ever since to proffer any explanation for the failure to return the passport. If she had provided some evidence explaining what had happened to the passport between May and August, then I might have been in a position to find that this prima facie inference of refusal, drawn from the primary facts, had been rebutted. But she had provided me with nothing which rebuts that inference.
The Defendant further contended that, in any event, she was under no obligation to re-deliver the passport, but only to permit it to be collected. This makes no difference here. The Defendant said nothing and did not even reply by saying that "passport is ready for collection". The inaction constituted not only a refusal to deliver, but a refusal to permit collection by Mr. Atapattu. He did not know where the passport was; indeed it was likely to be in mainland India in Chennai; and without his passport there must be doubt as to whether he would have been able to get there collect it anyway.
For these reasons, I conclude that, in response to Mr. Atapattu's demand, the Defendant refused to return his passport and in this way is liable for wrongful interference, by conversion, of the passport with effect from 19 May 2010.
Mr Atapattu's case is that the Defendant was negligent in failing to grant him his visa. The essence of the claim is that the Defendant delayed, negligently, in dealing with his re-submitted application in accordance with published policy in the Guidance. The loss, for which damages for negligence are claimed, relates primarily to the failure to grant the visa, namely the loss of enhanced earnings as a ship's captain.
The first question here is whether, in principle, the Defendant owed Mr. Atapattu a common law duty of care.
By way of preliminary, the precise content of the duty of care alleged is not clear. There have been no formal pleadings. It seems to me that the alleged duty could be (1) a duty simply to consider the re-submitted application within a reasonable time or (2) a duty to consider the re-submitted application within a reasonable time and in so doing to apply the approach outlined in the Guidance or (3) a duty, within a reasonable time, to consider the application and to proceed either to grant entry clearance or if not to return the passport. On any view, the duty of care could not be a duty to grant entry clearance. For present purposes, I do not need to resolve this particular issue, since I have concluded that, in any event, no common law duty of care arose in this case. I return briefly to the content of the alleged duty in paragraph 130 below.
In many cases the issue will be whether a particular employee of the public authority owed a common law duty of care to the claimant, for breach of which the defendant authority is vicariously liable. In the present case, the claim has not been put by Ms. Asanovic on the basis that the particular employees at the British High Commissions in Colombo and Chennai dealing with Mr. Atapattu's resubmitted application for a visa owed a duty of care. Given the absence of any explanation as to events there, it might have been difficult for Mr. Atapattu to have identified the relevant persons or specific relevant acts or omissions. However I address matters on the assumption that such a basis could have been put forward, and when I refer to the Defendant, I include references to those employees.
Relevant legal principles
The circumstances in which a public authority, when exercising statutory functions, may be held liable in negligence are circumscribed and have been the subject of much judicial authority over the last 15 years. In particular I refer to X (Minors) v Bedfordshire CC  2 AC 633, Stovin v Wise  AC 923, Gorringe v Calderdale MBC  UKHL 15  1 WLR 1057, Carty v. LB Croydon  EWCA Civ 19  1 WLR 2312, Rowley v Secretary of State for Work and Pensions  1 WLR 2861, Martin v HMRC  EWCA Civ 1041 and Jain v Trent Strategic Health Authority  EWCA Civ 1186 (upheld at  UKHL 4). Moreover, in the specific context of the Defendant's statutory functions in relation to immigration control, there are three key decisions: W v. Home Office  Imm A R 302 (CA); R (A and Kanidagli) v. SSHD  EWHC 1585 (Admin) ("Kanidagli") and very recently, the Court of Appeal's judgment in Home Office v Mohammed  EWCA Civ 351. I do not propose citing all these cases in detail; suffice it to say that this is an area of some complexity: see Martin, supra, at §32.
A number of principles are established. First, in the case of a statutory duty, if, as a matter of construction, there is no cause of action for the distinct tort of breach of statutory duty, carelessness in the performance of that duty does not of itself give rise to liability in negligence: Stovin v Wise per Lord Hoffmann at 952H-953A and Gorringe per Lord Scott at §71. Similarly in the case of a statutory power, a common law duty of care cannot be founded simply upon a failure - even a Wednesbury unreasonable failure - to provide some benefit which a public authority has power (or even a public law duty) to provide: Gorringe per Lord Hoffmann at §32. The Defendant places substantial reliance upon these first two principles (as did Chadwick LJ in Martin at §§34, 62).
Thirdly, however, the fact that a public authority is exercising a statutory power or duty (statutory function) does not preclude the existence of a common law duty. Whether such a common law duty does arise is determined, in general, by the application of general principles of the law of negligence, but subject to specific considerations arising from the public law dimension and the particular statutory framework (Martin at §32). These general principles have three strands: (1) the three stage test in Caparo Industries Ltd v Dickman  2 AC 605 (foreseeability of damage, proximity and whether the imposition of a duty is "fair, just and reasonable"); (2) voluntary assumption of responsibility; (3) whether a duty can be established "incrementally" by reference to established categories of duty. See Customs and Excise Commissioners v Barclays Bank plc  UKHL 28  1 AC 181 at §4
Fourthly, if the relationship between the claimant and the defendant is such as to attract, prima facie, a duty of care, it must be further considered whether the particular statutory framework and the fact that defendant was discharging a statutory function or exercising a statutory power modifies or excludes the common law duty of care. The criteria by which to make such a judgment have been stated in various ways: for example, it has been said that certain types of decision are "non-justiciable" and one test for determining what is justiciable has been to distinguish between "policy" decisions and "operational/administrative implementation" decisions. But this approach has not been uniformly adopted. More recently, these factors have been regarded as part of the analysis under the third "fair just and reasonable" stage of the Caparo test.
Four cases in more detail
The relevant principles were analysed by Dyson LJ in Carty. That was a case which concerned the statutory duty of a local authority to provide an education to a claimant with special educational needs. The Court of Appeal upheld the existence of a duty of care. In the course of the leading judgment, Dyson LJ set out the general approach to the liability of public authorities in negligence (at §§20 et seq). He referred to the three "areas of inquiry" identified by Lady Hale in A v Essex County Council but concluded in fact there should only be two such areas. Citing the House of Lords cases of Barrett and Phelps, he summarised the position in the following terms (at §28):
"In my view, there is much to be said for the view that there should only be two areas of potential enquiry where the issue arises whether a public authority is liable for negligence in the performance of its statutory functions. The first is whether the decision is justiciable at all. And the second is to apply the classic three stage enunciated in Caparo Industries Plc v Dickman  2 AC 601, 617-618: foreseeability of damage, proximity, and that the situation is one in which it is fair, just and reasonable that the law should impose a duty of care.
Further, he rejected an argument that Gorringe established that there can be never be a common law duty arising from the failure to exercise a statutory power which an authority has a public law duty to exercise. He pointed out (§40) that Gorringe was "concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty" and not with cases where (in Lord Hoffmann's words) "public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care". He concluded (§§42 and 43):
"the question whether there can be common law duty of care where there is no private law right to claim damages for breach of a statutory duty does not admit of a blanket answer. There may be aspects of the role of an education officer which involve consultation or advice in respect of policy matters" ...
But where an education officer, in the performance of his or her statutory functions, enters into relationships with or assumes responsibilities towards a child, then he or she may owe a duty of care to that child. Whether such a duty is in fact owed will depend on an application of the Caparo test".
In Jain in the Court of Appeal, Arden LJ recorded (§9) that it was common ground that the law relating to the liability of public authorities for negligence in the performance of their statutory duties was substantially set out by Dyson LJ in Carty. At §§60 to 64 of her judgment, Arden LJ identified five points as emerging from the authorities, upon which Ms Asanovic relied in the present case. In summary, those points are (1) the importance of the incremental approach to the duty of case; (2) the courts are reluctant to impose a duty if it would conflict with a duty of care owed to the primary beneficiary of the statutory scheme; (3) where the first two stages of Caparo are satisfied, it is for the public authority to show why a duty of care should not lie; (4) greater weight is to be placed on the third stage of Caparo than on issues of justiciability or Wednesbury unreasonableness and (5) the duty of care remains a major mechanism to control the opening of the floodgates.
Accordingly, it would appear that the proper approach is to apply the three stage Caparo test and to consider matters arising from the public and statutory law setting at the third stage.
Before turning to the specific cases addressing the particular position of immigration control, I refer to two further cases, upon which Mr. Jolliffe places particular reliance. Both cases concern delay, namely failure by a public authority to exercise its powers or carry out its functions within a reasonable time.
In Rowley v SSWP the claim for incompetence in the processing of a child maintenance assessment was struck out on the basis, first, that the Secretary of State did not assume responsibility voluntarily for the carrying out of the maintenance assessment and secondly that such a duty would be inconsistent with the statutory scheme. The claimant made five allegations of negligence against the Child Support Agency, including three allegations of delay. The Court of Appeal rejected liability on the basis that the Secretary of State did not voluntarily assume responsibility:
"51. The principal reason advanced by Mr ter Haar to support the argument that the Secretary of State owes a duty of care on the grounds of an assumption of responsibility is that the person with care is not obliged to have recourse to the 1991 Act. ... But that, in my view, is not a sufficient reason for holding that there is an assumption of responsibility by the Secretary of State whenever he performs his functions under the statutory scheme. The critical question is whether the Secretary of State voluntarily assumes responsibility and that does not depend on whether the parent chooses or is obliged to make an application for a maintenance assessment. ...
54. When a person with care applies to the Secretary of State for a maintenance assessment to be made, he is obliged to make it. In making the assessment, he is not a volunteer in any sense. It is true that the 1991 Act also gives the Secretary of State certain discretionary powers, for example, the power to make an interim maintenance assessment, to collect maintenance and to seek liability orders for the purpose of enforcement. But in my judgment, if he decides not to exercise one of these statutory powers, he is not, in making that decision, assuming a voluntary responsibility towards those who are foreseeably affected by it. Likewise if he decides that he will exercise one of the powers, it is not apt to describe what he does when he exercises the power as a voluntary assumption of responsibility. He is not doing anything that is "akin to contract". In determining whether or not (and if so how) to exercise his statutory powers, the Secretary of State often has difficult and sensitive decisions to make: .... These decisions are amenable to judicial review. They are far removed from a voluntary assumption of responsibility."
The Court of Appeal turned to the Caparo test and the issue of inconsistency with the statutory scheme (at §§61-62):
"In deciding whether it is fair, just and reasonable to impose a duty of care on a public authority in the carrying out of its statutory functions, it is necessary to consider whether such a duty would be inconsistent with the statutory framework in which it is acting. … .
Thus Lord Browne-Wilkinson said in X v Bedfordshire County Council at p 729:
'the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done'.
In Stovin v Wise … Lord Nicholls of Birkenhead said that the common law should not impose a concurrent duty which is inconsistent with the statutory framework:
Finally, the Court went on to consider two other matters which were also relevant to whether it would be fair, just and reasonable to impose a duty. The first was extra-statutory remedies and the second was costs of litigation.
'A common law duty must not be inconsistent with the performance by the authority of its statutory duties and powers in the manner intended by Parliament, or contrary in any other way to the presumed legislative intention.' "
In Martin v HMRC  EWCA Civ 1041 the claim was for damages for negligence on the part to the HMRC in failing to process within a reasonable time the claimant's application for a certificate under a scheme established under relevant tax legislation. The failure arose from specific identified administrative errors on the part of staff at the local tax office. The issue arose as to whether the HMRC owed a common law duty of care to process the application with reasonable expedition. The Court of Appeal held that neither the HMRC nor the specific employees owed any such duty of care (save in respect of the actions of one particular employee who had taken it upon himself to complete a declaration on behalf, but without the authority, of the claimant). Chadwick LJ endorsed the approach of the first instance judge, who had found that the first two stages in the Caparo test had been satisfied, but that it was the third limb which gave rise to difficulty. (The judge had found proximity on the basis that "any duty which [the Revenue employee] owed arose in connection with the processing of a specific application (for a certificate ... ) made by a specific ascertained person" (§37)). The judge concluded that it was not fair just and reasonable to impose a common law duty of care, dealing with a range of factors. He accorded the greatest weight to the absence of an assumption of responsibility, the fact that there was no statutory cause of action and the existence of an alternative remedy. It is worth noting that in the Chadwick LJ (at §49) accepted that HMRC were under a public law duty to act within a reasonable time in determining an application for a certificate. In the Court of Appeal, Chadwick LJ dealt with the position of the employee in the following terms (§72):
"In my view the judge would have been correct to hold that no common law duty of care was owed to the claimant company by either (i) the unidentified employee .. who inserted the incorrect UTR on the ... form ... or (ii) the unidentified employee ... who posted the ... certificate to the wrong address. As it seems to me, those were plainly administrative mistakes made in the ordinary course of processing the application ... . In the circumstances that ... the legislature did not intend to impose a statutory duty, enforceable by an individual in a private law suit, to process such applications within a reasonable time, it would be wrong for the courts to recognise a common law duty owed by the Revenue's employees to take care to avoid delay. ..."
In the case of the employee who took unauthorised positive action Chadwick LJ concluded that that went beyond an administrative mistake made in the ordinary course of processing the application. In so doing, the employee had "assumed a responsibility" towards the applicant and it was fair, just and reasonable to recognise a duty of care .
In summary, in considering whether it is fair, just and reasonable to impose a common law duty of care in these circumstances, it will or may be relevant to take into account one or more of the following factors: (1) whether to do so would be contrary to the statutory scheme and whether it would conflict with a duty owed to the primary beneficiaries of the scheme; (2) whether it would hamper the effective performance of the system and lead the authority to act defensively; (3) whether the error was operational or administrative rather than made at a policy level; (4) whether it would open "the floodgates" to similar claims leading to a diversion of the resources of public servants; (5) the litigation costs of such claims; (6) whether there is an alternative remedy; (7) whether there has been a voluntary assumption of responsibility; and (8) whether the general sense of public duty would be unlikely to be reinforced by liability.
The Home Office and immigration control
I turn to consider the specific position of the exercise of immigration powers by the Defendant under the relevant statutory framework, in particular IA 1971, HC 395 and other rules and guidance, and the circumstances in which a common law duty of care might fall to be imposed on the public authority carrying out the statutory functions - generally the Defendant. In this context, there are two particularly relevant cases, one on each side of the dividing line.
The Defendant relied upon W v Home Office, where the Court of Appeal held that the defendant did not owe a common law duty of care, in circumstances where the claimant was subjected to immigration detention as a result of an error made by one or more immigration officers in the processing of his application for temporary release.
Mr. Atapattu relied upon the later decision in Kanidagli. There Keith J found that the Defendant did owe a common law duty of care, in circumstances where the claimants, who had been granted asylum, were denied welfare benefits to which they were entitled, due to a clerical errors made by individual immigration officers and officials. At §39 of his judgment, Keith J distinguished W v. Home Office on the basis that the error in W, whilst "operational", occurred prior to, and in the course of "the exercise of a judgment which the immigration officer had to make"; whilst in the present case the error was only in respect of the "implementation" of a judgment already made.
The Kanidagli case represents the high water mark of Mr. Atapattu's case in negligence; and it received further support from the decision of HH Judge Oliver Jones QC in the Mohammed case. It was for this reason that the present proceedings were stayed pending the outcome of the appeal to the Court of Appeal in Mohammed.
Home Office v Mohammed
The claimants in the Mohammed case were Iraqi Kurds who claimed damages for the Home Office's delay (of between 6 and 10 years) in granting them indefinite leave to remain. That delay was in breach of the Home Office's duties in public law. The claimants alleged that this amounted to negligent administrative delay which had caused them financial loss (as well as a breach of statutory duty and an infringement of Article 8 ECHR). The Defendant applied to strike out the claims. At first instance, HH Judge Oliver Jones declined to strike out the claims in negligence and under Article 8 ECHR. In relation to the claim in negligence, he relied extensively on Kanidagli (and distinguished W v. Home Office) in concluding that the errors made in the case amounted to "a failure to take care in the administrative implementation of a policy" (§50). As far as concerned Article 8 ECHR, he rejected the argument that "delay" in granting leave to remain could not amount to an interference with the Article 8 right to a private life.
The Court of Appeal allowed the Home Office's appeal on the issue of negligence, whilst dismissing it on the Article 8 claim. Given its direct relevance to the issue of negligence in the present case, in particular its treatment of W v Home Office and Kanidagli, I set out the judgment of Sedley LJ in extenso.
First Sedley LJ summarised the case made by counsel for the Home Office:
"12. ... . The statutory function in issue here is the allocation to the Home Secretary by s.4(1) of the Immigration Act 1971 of the power to give leave to remain in the United Kingdom. This being now conceded not to be the kind of case in which a statutory duty itself carries a civil cause of action for its breach, it is on principle highly unusual for the courts to graft a duty of care on to it. Barrett v Enfield BC  2 AC 550 and Phelps v Hillingdon BC  2 AC 619 are among the rare instances, but they find no analogy in the present claims, not least because what is in issue here is not a duty at all but a power. While common law negligence can occur in the course of exercising a statutory duty or power (a gas meter reader lighting a cigarette, as was suggested in the course of argument, or an environmental health officer breaking the restaurant's china), it cannot on principle occur in the actual discharge of the function and may well be inconsistent with or contra-indicated by the statutory scheme. Here the Home Secretary has public duties to perform, in the course of which she is required to act in accordance with the law. It is public law (including, I would interpose, the law of legitimate expectation, which today is the principal means by which policy is enforced or waived) which sets the remedies for breach – remedies which do not include damages. Save in particular circumstances unlike those we are concerned with, the common law has not recognised a concurrent duty of care outside or alongside the statutory framework, even if there is no other means of claiming damages. Nor, adopting the Caparo test, is it fair or just or reasonable to do so when other recourse is in fact available, in the present cases to the Parliamentary Ombudsman, who has power to recommend the payment of compensation."
In the next paragraph, he concluded that this Home Office case was "made good", and then proceeded to give to give his reasons in paragraphs 14 and following
"14. As a general rule the proximity created by a statutory relationship does not by itself create a duty of care: Stovin v Wise  AC 923; Gorringe v Calderdale MBC  UKHL 15. Particular features of the relationship may do so (Phelps v Hillingdon LBC  2 AC 619), but Mr Drabble has not sought to draw a direct analogy between that decision and these claims. Rather he invites us to follow the decision of Keith J in R (Kanidagli) v Home Secretary  EWHC 1585 (Admin), a case in which the Home Office had duly admitted the wife of a refugee but had wrongly barred her from claiming benefits, with resultant losses which she could not retrieve except by way of damages. Keith J concluded that it was fair, just and reasonable that an administrative error of this kind, involving no judgment but simple administration and with a predictable financial effect for which there was no other remedy, should be regarded as arising out of a sufficiently proximate relationship to found a claim for damages.
15. Keith J distinguished the decision of this court in W v Home Office  Imm AR 302 on the ground that it had been based on an exercise of administrative judgment. In my respectful opinion this was a distinction without a difference: W had been held in immigration detention because of a crass administrative mistake - it really could not be dignified as an error of judgment - about his ability to establish his country of origin. Yet this court held that no claim lay in negligence:
'….. The process whereby the decision making body gathers information and comes to its decision cannot be the subject of an action in negligence. It suffices to rely on the absence of the required proximity. In gathering information, and taking it into account the Defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy. For them to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers. In conducting their inquiries, and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply. ……'
16. The reasoning which underlies W was more fully spelt out by Dyson LJ, as he then was, in Rowley v Secretary of State for Work and Pensions  EWCA Civ 598.....
17. While the Home Office in dealing with asylum claims is, in broad terms, acting under statute, practically everything it does in the exercise of the large s.4(1) function is dictated by policy, whether in the form of immigration rules or of departmental policies or instructions. There is therefore no direct analogy in the decided cases we have looked at. But they have in my view one important theme and one background consideration each of which is relevant to what we have to decide.
18. The theme is the availability of other, possibly equivalent, forms of redress. This is not a simple tick-box indicator. Its absence, however serious its consequences, may not be enough to establish a duty of care: see Jain ... . But its presence, by analogy with a comprehensive statutory scheme such as was present in W, may well be sufficient, even assuming sufficient proximity, to make it less than fair, just and reasonable to add a common law liability in negligence. I will return to this below.
19. The background consideration is the recent work of the Law Commission on the question of damages for public law wrongs and on the related question of redress through a statutory commissioner or ombudsman.
Sedley LJ then set out in some detail the history of the Law Commission's project and its ultimate conclusion not to proceed with any reform of the law on state liability. He continued:
"24. The other, more directly in point, is that, whatever the reason, a faute lourde system of state liability in damages for maladministration, of the kind that has worked well in France for more than a century, is not on the cards in the United Kingdom. Apart from the limited private law cause of action for misfeasance in public office and the statutory causes of action in EU law and under the Human Rights Act, there is today no cause of action against a public authority for harm done to individuals, even foreseeably, by unlawful acts of public administration. The common law cause of action in negligence coexists with this doctrine and may on occasion arise from acts done or omissions made in carrying out a public law function; but it may not impinge on the discharge of the function itself, however incompetently or negligently it is performed.
25. As to this, however, there is frequently, though not always, recourse in the modern state to the independent judgment of an ombudsman. As I said earlier, this too can be relevant to the question whether the common law ought by increment to afford a remedy. ...
26. It is common ground in the present cases that complaints such as those of the claimants fall within the Parliamentary Ombudsman's remit. They have not yet gone that far because they are being considered internally. This is not a statutory process but a voluntary preliminary step. If it affords just satisfaction, well and good. If not, the claimants can invite the Ombudsman to adjudicate and to recommend a payment of compensation. ...
27. A number of leading cases touch on the continuing possibility of incremental change at the margins of common law liability, not in order to commend it but in order not to exclude it. Incremental change has both attractions and problems, not the least of which is that it can go in more than one direction. All that I think it necessary to say here, however, is that while nothing in this judgment is designed to constrict it, there is nothing in the present cases, in the legal situation I have outlined, to call for it."
As a result of the Court of Appeal's judgment in Mohammed, it is clear that the approach in W v Home Office is to be preferred to that in Kanidagli. The fact that the conduct or failure in question might be characterised as "administrative" (rather than a matter of policy or judgment) does not of itself justify the imposition of a common law duty of care. Whilst the Court of Appeal did not expressly overrule Kanidagli, in my judgment it cannot safely be relied upon in preference to the three Court of Appeal decisions in W, Rowley and Martin. Ms. Asanovic seeks to distinguish the present case from Mohammed on the facts, on the basis that here the Defendant's task following an immigration judge's decision was purely administrative, whereas in Mohammed there was a policy decision involving the exercise of judgment. I do not accept this. First, Sedley LJ very much doubted the validity of such a distinction, and, in any event, plainly supported the result in W v Home Office, where the error was clearly a "crass" administrative error. Secondly, the task for the Defendant in the present case on a re-submitted application itself requires proper re-consideration of the application for the visa, in accordance with rules and guidance. The reasoning of Sedley LJ in Mohammed applies equally to the facts of the present case. This is a case of a statutory power, rather than a duty; and the alternative remedy of a complaint to the Ombudsman is available.
Analysis and conclusion
At the heart of Mr. Atapattu's claim for negligence was the failure by the Defendant to consider his re-submitted visa application within a reasonable time. The relevant alleged failure was a failure to exercise a statutory power (rather than a statutory duty) and to do so within a reasonable time. (To that extent, the case is similar to Martin on the facts) For the reasons set out above, I consider that that failure amounted to a breach of public law by the Defendant. But this alone is not sufficient to give rise to a common law duty of care.
The position here on the facts is materially indistinguishable from those in Mohammed (and W) and the Court of Appeal's decision there that the imposition of a duty of care would not be fair just and reasonable applies with equal force to the present case. It seems to me that the outcome and reasoning in Mohammed is decisively supportive of the Defendant's case on this issue. This result is confirmed by specific consideration of the three tests for a duty of care.
First, applying the analysis in Rowley (§§51 to 54), in the present case the Defendant was not voluntarily assuming responsibility to consider and grant the re-submitted visa application. As Mr Atapattu has contended all along, the Defendant was obliged as a matter of public law, at the very least, to consider that application. Considering such re-applications following an allowed appeal is part of the statutory function being discharged by the Defendant. Thus, no common law duty of care arises on this basis alone.
Secondly, as regards the three Caparo stages, I am prepared to accept that the first two limbs are satisfied. As regards foreseeability, whilst the harm in this case is the loss of a chance of employment, nevertheless it was foreseeable harm. As regards proximity, the previous applications for entry clearance, the appeal, the Appeal Allowed letter and the re-submitted application were sufficient to create a relationship of proximity between this claimant and the Defendant. The position is comparable with that in Martin (at §37).
However, as regards the third Caparo limb, it would not be fair, just and reasonable to impose a common law duty of care upon the Defendant in these circumstances. As regards the various factors relied upon by Mr. Atapattu under this limb, this is not a case where the imposition of a duty would conflict with duties owed to the primary beneficiaries of the statutory scheme and it might be more likely to reinforce the primary public law duties to deal with applications properly and in good time. On the other hand, in W (in a passage cited in Mohammed) Lord Woolf stated that a duty of care "would be inconsistent with the proper performance of their responsibilities as immigration officers". That was said in the context of a finding of absence of proximity. Without further elucidation, I am not persuaded by the Defendant's argument that imposing a duty of care here would unnecessarily hamper the effective performance of the system of immigration control. Further I do not accept the Defendant's submission (based on Rowley) that the costs of litigation here would be out of proportion with the sums potentially at stake. A claim for loss arising out of delay in granting a visa and retention of passport may be more than minimal, as they are in the present case.
Nevertheless, the following factors lead to the conclusion that the third limb is not satisfied. First and foremost, there are alternative remedies here: in particular recourse to the Parliamentary Ombudsman in respect of time already passed. This was the critical factor identified in Mohammed and applies equally here. Secondly, the absence of voluntary assumption of responsibility is a relevant factor here. Thirdly, (and negatively) the fact that the error in question (in failing to act) is purely administrative does not make it fair, just and reasonable to impose a duty. Finally, although not supported by any evidence of substance, I can see that the imposition of a common law duty of care might result in a substantial number of claims and a diversion of the time of public servants.
Thirdly, and finally, far as concerns the "incremental" test for a duty of care, this is addressed in §27 of Sedley LJ's judgment in Mohammed
For these reasons, I conclude that the Defendant did not owe to Mr. Atapattu a common law duty of care to consider and deal with his re-submitted application for a visa within a reasonable time. Accordingly his claim is negligence fails.
Observations on breach and causation
Accordingly, I do not need to go on to consider questions of breach or causation. I would however observe that these issues of breach and causation would have depended on the precise content of the duty of care. As a matter of fact, I would have found that the Defendant did not consider the re-submitted application within a reasonable time. As regards the failure to apply the Guidance and to grant a visa, then, if there had been a duty of care in terms of (2) or (3) in paragraph 96 above, then I would have been prepared to find that the Defendant was in breach of that duty. On the other hand, if the duty had been in terms of (1), then the issue of whether entry clearance would have been granted would have been a matter of causation. On either approach, on the basis of the material before me I would not have been in a position to resolve a number of further issues of causation, even if, on one view, they might have fallen into the issue of liability, rather than quantum. Such issues include whether Mr. Atapattu would have completed the course, obtained his Master's qualification and would have obtained employment as a master during the time in which he was delayed.
Human Rights claim: Article 8 and Article 1 Protocol 1 ECHR
Mr Atapattu claims damages under s.8 Human Rights Act 1998 ("HRA") on the basis that the Defendant's conduct infringed his rights under Article 8 and Article 1 Protocol 1 ECHR.
Relevant legal principles
Article 8 ECHR provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is 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, of the for the protection of the rights and freedoms of others."
In order to establish an infringement of his rights under Article 8, the claimant has to show that there has been a relevant interference with the exercise of his right to respect for his private life and that that interference has had consequences of such gravity as potentially to engage the operation of Article 8: see R (Razgar) v. SSHD  2 AC 368 at §17.
If Article 8 is engaged in this way, then it is for the Defendant to justify the interference, by showing that it is both "in accordance with the law" and in pursuit of, and proportionate to, one of the legitimate public aims, specified in Article 8(2), for whose purpose the action was taken.
In the present case, the Defendant has advanced no evidence at all concerning the circumstances of the delay in considering the re-submitted visa application and the retention of Mr. Atapattu's passport. There is therefore no material before me upon which I could conclude that the Defendant has discharged the burden of demonstrating that this conduct was proportionate to the legitimate end of the pursuit of a lawful immigration policy. Thus, on any view the Defendant could not satisfy the requirements of Article 8(2). In this way, it is not necessary to consider the issue of whether the interference was "in accordance with the law": Ms. Asanovic argued, with some force, that it was not because (a) the Defendant had committed the tort of conversion and (b) in any event the Defendant's failure was in breach of public law.
Accordingly, this part of the claim turns wholly on whether Mr. Atapattu can establish that there has been an interference with his right to respect for his private life under Article 8(1). That in turn raises two issues: whether the consequences of the Defendant's conduct for Mr. Atapattu fell within the scope of the concept of "private life" under Article 8(1) and if so, whether, that conduct amounted to a sufficient interference with Mr. Atapattu's private life.
Turning to Article 1 Protocol 1, it provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
Once it is established that there has been an interference with the right to possessions, then it is for the defendant state to justify the interference as being proportionate to a legitimate aim in the public interest. However, here, no evidence or argument was put forward on this latter issue. So the only question which arises is whether there has been a relevant interference with Mr. Atapattu's "possessions" within the meaning of Article 1 Protocol 1.
There are two aspects to Mr. Atapattu's claim: the first concerns the retention of his passport and its effects; the second concerns the failure in relation to the re-submitted visa application. I address first Article 8 and then Article 1 Protocol 1, and under each provision, will consider the two aspects separately.
(i) Retention of passport
Mr. Atapattu contends that the Defendant's retention of his passport effectively prevented him from continuing to work in his chosen occupation in the merchant navy, and thus, that for so long as the passport was retained, there was a substantial interference with his ability and right to work. At the same time, he was unable to travel at all outside Sri Lanka. He claims that he has a right not to be subject to an arbitrary work and travel ban; and that such a ban interfered with his private life
I accept that, as a matter of fact, without his passport, Mr. Atapattu was unable to take up work as a chief officer with his employer, or, very possibly, any work in his chosen occupation as a seaman. The question is whether this amounted to an interference with his private life within the meaning of that term in Article 8.
There is no direct authority which establishes that a right to work (or indeed a right to follow one's chosen occupation) is, of itself, protected by Article 8. Ms. Asanovic referred me to a number of authorities, including in particular Smirnova v. Russia (2004) 39 EHRR 22, and Sidabras v. Lithuania (2006) 42 EHRR 6
In Smirnova, the Russian authorities retained the applicant's national identity paper, her "internal passport". The European Court of Human Rights (ECtHR) held that this infringed the applicant's right to a private life under Article 8.
"95. The Court has a number of times ruled that private life is a broad term not susceptible to exhaustive definition..... It has nevertheless been outlined that it protects the moral and physical integrity of the individual ... , including the right to live privately, away from unwanted attention. It also secures to the individual a sphere which he or she can freely pursue the development and fulfilment of his personality ... .
96. ... the interference with [the applicant's] private life is peculiar in that it allegedly flows not from an instantaneous act, but from a number of everyday inconveniences taken in their entirety which lasted [for over four years]. ...
97. The Court finds it established that in their everyday life Russian citizens have to prove their identity unusually often, even when performing such mundane tasks as exchanging currency or buying train tickets. The internal passport is also required for more crucial needs, for example, finding employment or receiving medical care. The deprivation of the passport therefore represented a continuing interference with the applicant's private life ..." (emphasis added)
The Court's finding at §97 was in turn based on the applicants' submissions at §90:
"a Russian citizen holding no passport is impaired in his rights to a degree amounting to an interference with his private life. The law requires that a person who wishes to find employment, receive free medical care, receive mail, marry, vote, use notarial services, install a telephone line, save money when buying foreign currency or travel by train or aeroplane must be able to produce a passport. Furthermore, not having a passport is in itself an administrative offence."
It was the cumulative effect on this wide variety of aspects of the applicant's life which was held to constitute the interference with private life. The requirement for proof of identity was "unusually" frequent in Russia. As regards impact upon ability to work, this was one only of a number of effects of the deprivation of the passport, and in any event it appeared to be the case that the internal passport was required to be able to do any work whatsoever.
In Sidabras the applicant worked for the KGB before Lithuania became independent. Following a law passed in 1998, he was, as a former KGB officer, dismissed from his job and debarred from working in a wide range of public and private employment. The Court held that there was a breach of Article 14 (prohibition of discrimination) in conjunction with Article 8. The Court referred to its judgment in Niemietz v Germany (§29), where it had identified, as part of respect for private life, the right to establish and develop relationships with other human beings and to do so within activities of a professional or business nature. After referring to Smirnova, the Court continued (at §46 and following)
"46. The Court has also ruled that access to the civil service as such cannot be basis for a complaint under the Convention ; the above principle was also reiterated in Vogt v Germany . In Thlimmenos v Greece , where an applicant had been refused listing as a chartered accountant because of a previous conviction, the Court also stated that the right to choose a particular profession was not as such guaranteed by the Convention.
47. Nevertheless, having regard in particular to the notions currently prevailing in democratic states, the Court considers that a far-reaching ban on taking up private-sector employment does affect "private life". …
48. Turning to the facts of the present case, the Court notes that…the applicants have been banned from engaging in professional activities in various private sector spheres in view of their status as "former KGB officers". Admittedly, the ban has not affected the possibility for the applicants to pursue certain types of professional activities. The ban has, however, affected the applicants' ability to develop relationships with the outside world to a very significant degree, and has created serious difficulties for them as regards the possibility to earn their living, with obvious repercussions on their enjoyment of their private life.
49. The Court also notes the applicants' argument that as a result of the publicity caused by the adoption of the "KGB Act" and its application to them, they have been subjected to daily embarrassment as a result of their past activities. It accepts that the applicants continue to labour under the status of "former KGB officers" and that fact may of itself be considered an impediment to the establishment of contacts with the outside world—be they employment-related or other—and that this situation undoubtedly affects more than just their reputation; it also affects the enjoyment of their "private life". …..They are marked in the eyes of society on account of their past association with an oppressive regime. Hence, and in view of the wide-ranging scope of the employment restrictions which the applicants have to endure, the Court considers that the possible damage to their leading a normal personal life must be taken to be a relevant factor in determining whether the facts complained of fall within the ambit of Art.8 of the Convention.
50. Against the above background, the Court considers that the impugned ban affected, to a significant degree, the possibility for the applicants to pursue various professional activities and that there were consequential effects on the enjoyment of their right to respect for their "private life" within the meaning of Art.8 . It follows that Art.14 of the Convention is applicable in the circumstances of this case taken in conjunction with Art.8." (emphasis added)
Mr. Atapattu also referred to the case of Riener v. Bulgaria (2007) 45 EHRR 32 §§ 25 and 134, where it was argued that a total travel ban (arising from the confiscation of a foreign passport) infringed Article 8. There it was alleged that the ban had "destroyed" the applicant's private and family life. The Court did not rule on the issue of whether a travel ban could fall within Article 8, since it held, in any event, that there had been an infringement of Article 2 Protocol 4. However Riener does not assist here. The effects of the travel ban there were of a wholly different magnitude to those in the present case.
Finally, Ms. Asanovic relied upon the fact that, in Mohammed, the Court of Appeal dismissed the appeal on the Article 8 claim. However, this takes matters no further. First, the Court of Appeal decided, only, that the Article 8 claim was a triable case. Secondly, the claimants' case under Article 8 was based, again, upon an accumulation of factors, including but not limited to interference with the right to work and the ability to travel: see Sedley LJ at §8. In that respect, the facts in Mohammed would appear to be more akin to those in Smirnova and Sidabras.
Under the ECHR, there is no express right to work and there is no right to choose a particular profession (Thlimmenos cited at §46 Sidabras). In my judgment, Sidabras was a case, where on the facts, the applicants were wholly or very substantially deprived of the ability to work altogether. Furthermore it involved other effects on private life, going well beyond the ability to pursue one own particular chosen career, including public embarrassment as being former KGB officers. (I note in passing that R (Countryside Alliance) v. Attorney General  1 AC 719 Lord Bingham described Sidabras as a "very extreme case on the facts" and that the applicants were "effectively deprived of the ability to work" altogether). The position in Smirnova was even more extreme. The effect of retention of the passport not only precluded all work, but affected almost every reach of daily life in Russia.
In the present case, whilst Mr. Atapattu's ability to pursue his chosen occupation of merchant navy seaman was hampered, there is no evidence that, for the time in which he was deprived of his passport, he was unable to work at all. (The only relevant evidence being that contained in his letters of 5 May and 11 June, where he stated the bare fact that that he was "not doing a land job"). Nor is there any evidence that the withholding of his passport had any other particular effects on the ability of Mr. Atapattu to enjoy his private life, on his relations with other human beings or on his personal development. Article 8 does not give a right to choose one's particular occupation or to pursue it once chosen. The retention of the passport did not interfere with Mr. Atapattu's right to respect for his private life.
(ii) The re-submitted visa application
Mr Atapattu claims that the Defendant's failure to grant him a visa within a reasonable time interfered with his career development. The issue here is whether the ability to obtain further professional qualifications and thereby improve career prospects amount to "personal development" within the concept of "private life" under Article 8. Again there is no direct authority on the point. I proceed on the basis, that as a matter of fact, Mr. Atapattu could only to obtain his master's qualification by attending a course in the UK
By way of preliminary, the Convention does, in Article 2 of Protocol 1, provide distinctly for a right to an education. Mr. Atapattu does not rely on this provision; it is concerned with schooling. I accept Mr. Jolliffe's submission that the right to education, even professional education, does not of itself fall within Article 8. Thus if the facts here were to fall within Article 8 it must be because of the element of personal development arising from enhancement of a chosen career.
Mr. Atapattu relies upon the express finding, at §24, in the AIT's earlier determination in the present case that the previous, outright, refusals of the visa infringed Article 8: see paragraph 26 above. I agree that that finding necessarily related to the grant of a visa for the purposes of undertaking the Master's course at Fylde College. The AIT implicitly found that the ability to undertake the masters' qualification in the UK came within the Article 8 right to personal development. However I am not bound by that ruling of law within the AIT determination. I have now had the benefit of full argument from both parties. I consider the question as a matter of principle.
Mr. Jolliffe referred me to the judgment of Blake J in CDS (Brazil) v SSHD  UKUT 00205 (IAC), where in considering Article 8 in the context of a student migrant who had already been studying in the UK, he stated (at §17):
"It is difficult to imagine how the private life of someone with no prior nexus to the United Kingdom would require admission outside the rules for the purpose of study. There is no human right to come to the United Kingdom for education or other purposes of truly voluntary migration."
In turn, Ms. Asanovic relied upon the next two paragraphs (§§18 and 19):
"However the appellant has been admitted to the UK for the purpose of higher education and has made progress enabling extension of stay in that capacity since her admission in 2007. We acknowledge that that gives no right or expectation of extension of stay irrespective of the provisions of the Immigration rules ...
Nevertheless people who have been admitted on a course of study at a recognised UK institution for higher education, are likely to build up a relevant connection with the course, the institution, an educational sequence for the ultimate professional qualification sought, as well as social ties during the period of study. Cumulatively this may amount to private life that deserves respect because the person has been admitted for this purpose, the purpose remains unfulfilled, and discretionary factors such as misrepresentation or criminal conduct have not provided grounds for refusal of extension or curtailment of stay." (emphasis added)
In my judgment, the position of Mr. Atapattu is distinguishable from the appellant in CDS. Blake J identified four factors which he concluded "cumulatively" might amount to a private life. One of those factors might be said to be present in Mr. Atapattu's case; namely an educational sequence for an ultimate professional qualification. However two of the remaining factors are not present. Mr. Atapattu has not previously attended any course at Fylde college, and has thus not built up a relevant connection with "the institution"; nor is there any evidence that he has built up social ties, whether at Fylde College or elsewhere. As to the fourth factor, "connection with the course" was, I believe, intended to address the position where a person was already part way through a particular course; and on this basis I do not think that Mr. Atapattu had already made a connection with the Master's course. Even if it could be said that, by dint of having completed his earlier qualifications in the UK, he had built up a prospective connection with the Master's course, wherever offered in the UK, in any event this would mean at most the presence of only two out of the four factors. In my judgment, given Blake J's emphasis on the "cumulative" nature of the factors, the presence of one - or possibly two - such factors are not sufficient to bring the present case within Article 8.
At paragraph 24 of its determination, the AIT referred, briefly, to its own decision in MG (Serbia and Montenegro) v. SSHD  UKAIT 00113. It is not easy to discern the proposition for which that case was cited, and I was not taken to it by either counsel in argument. I have considered it (and in particular §§31, 33 and 37) and apart from providing support for the proposition that a private life may "consist of a person having a job and friends and carrying on a programme of studies", it seems to me not to add very much to the statements by Blake J in CDS.
"Personal development" within the concept of private life in Article 8 does encompass elements relating both to private life and to work life: see Niemietz, cited in Sidabras. This is because both are relevant to developing relations with other human beings, which is the key element of private life which is in play here. However in my judgment, merely enhancing one's qualifications within a particular chosen career path does not necessarily have an impact upon a person's ability to develop relationships with other human beings. Being prevented from gaining further qualifications or even from obtaining a particular appointment within a career path neither substantially hinders a person's ability to find work generally nor, more significantly, necessarily to develop personal relationships within the work environment. As I have already observed, there is no right to work per se and no right to choose one's occupation.
Furthermore, I would add that even if the ability to pursue the master's course within the UK did fall within the Article 8 right to personal development, I would have found that the delay in the grant of the visa causing merely delay in taking the course was not a sufficiently substantial interference with Mr. Atapattu's right to personal development so as to engage Article 8.
Article 1 Protocol 1
Mr. Atapattu's case under Article 1 Protocol 1 is made principally in respect of the retention of the passport. He contends that the Defendant's retention of the passport interfered with his right to peaceful enjoyment of the passport, being his possession. (I deal briefly below with the second aspect, failure to grant a visa).
(i) Retention of passport
The question is whether Mr. Atapattu's passport is a "possession" within the meaning of that term in Article 1 Protocol 1; and a key issue here is whether, even though his passport is a physical chattel, the fact that it is not "marketable" and has no distinct monetary value means that it cannot constitute a "possession".
Two propositions are clear. First, a passport is undoubtedly a tangible object (or a chattel) capable of physical possession (in a non technical sense). Secondly, the claim made here under Article 1 Protocol 1 by Mr. Atapattu relates, in substance, to the interference with his ability to carry on his trade or profession as a chief officer in the navy, which arose from the withholding of his passport.
I have been referred a number of authorities, most particularly R (Nicholds) v Security Industry Authority  EWHC 1792 (Admin)  1 WLR 2067 and R (Malik) v. Waltham Forest NHS Primary Care Trust  EWCA Civ 265  1 WLR 2092. Whilst Ms. Asanovic sought to characterise these two cases as being (merely) "domestic", each contains a sophisticated and detailed analysis of the relevant Strasbourg jurisprudence. Each also referred to the "Countryside Alliance" case on the ban on hunting, and, I note, that, when that case reached the House of Lords, Lord Bingham expressly approved of both Malik and, in particular, the "very convincing analysis" in Nicholds: see R (Countryside Alliance) v. Attorney General, supra at §21.
I derive the following propositions from Nicholds and Malik. First, an individual's economic interest in making a living from employment or self employment is not of itself a "possession" within the meaning of Article 1 Protocol 1. This is because "a future expectation of future income" is not a "possession". see Nicholds §71 Malik §§21, 26, 29 45. Secondly, by contrast, the goodwill of a business is a "possession" where it is marketable and/or has monetary value. see Nicholds §§ 72, 73 Malik §§23, 26, 29 . In this way, the goodwill of a partnership of solicitors or accountants can be a possession, but the "goodwill" of a barrister's practice cannot be possession. Thirdly, a licence or permission to carry on an activity may or may not be a possession, depending upon whether it is marketable and has a monetary value: see Nicholds §§74 to 76 Malik §§38 to 40.
Thus, plainly, Mr. Atapattu's economic interest in his livelihood as a chief officer is not, of itself, a "possession" for present purposes. Equally plainly, Mr. Atapattu's passport is not "marketable" nor has a "monetary value". For this reason, if Mr. Atapattu's passport is characterised as an intangible entitlement, conferred by something akin to a licence or permission, to do certain things (such as travel or enter foreign countries), then it is equally not a "possession". But that still leaves the question whether the fact that the passport is also a tangible object or chattel renders it a "possession" regardless of the fact that it is not marketable.
First, there is support for the proposition that a "possession" within the meaning of Article 1 Protocol 1 is synonymous with an "asset"; and that an "asset" in turn denotes economic value. At §70 in Nicholds, Kenneth Parker QC (as he then was) refers to possessions as "all manner of "things" which have significant economic value". At §73 he concludes:
"... the Convention, differing perhaps in this respect from the law of the European Union, protects assets which have a monetary value not economic interests as such"
In Malik, Auld LJ (§22) and Rix LJ (§) referred to §41 of ECtHR judgment in Van Marle, stating that the accountants' clientele "constituted an asset, and hence a possession" within Article 1 Protocol 1. There is a similar statement in Wendenburg (per Auld LJ §24).
At §§65 and 66, Rix LJ, whilst expressing less certainty about using "marketability" as the only test for the distinction between goodwill and future income only, continued:
"In the present case, however, this difficulty does not need resolving because [the prohibition on selling their practices] effectively means that an NHS doctor's goodwill has no economic value. As such I do not see how it can be regarded as an asset or, therefore, a possession for the purposes of Art 1FP. It is neither a physical thing (land or chattels) nor a right or other chose in action, nor an asset of any kind. In Aston Cantlow v Wallbank ... Lord Hobhouse of Woodborough said (at para 891) that Art 1 FP's "possessions" applied "to all forms of property and is the equivalent of "assets".
Secondly, and on the other hand, Auld LJ expressly referred to "tangible objects" which do not have an economic value, in the following terms:
"36 … it may be helpful to step back for a moment to remember that possessions may be tangible or intangible and that the reach of human rights goes beyond economic protection. In the case of tangible objects, such as land or goods, and also in the case of certain intangible assets, an individual's right to enjoy them as possessions may not be, or not just be, of an economic nature. Something may have value to a person though it may have no value in the market. One cannot comprehensively define possession for this purpose by reference to a person's ability or wish to sell it. … in the case of property other than land, objects that may be of no economic value to their possessors-wholly unmarketable-may have a sentimental or other personal value to them for the protection of their enjoyment of which article 1 should, if necessary, provide.
37. In the case of tangible property, no elaborate argument based on analysis of its value is needed to establish whether it comes within the protection of the article, only the possessory right and the interference with it by reference to which the individual invokes article 1."
He then continued by contrasting such "tangible" objects with "intangible entitlements" in the following terms:
"38 Where, however, the possessory right claimed is, as here, to some intangible entitlement conferred by a licence or other form of permission to the grantee to continue to follow an activity to his advantage, it seems to me that some additional factor is necessary to render it a "possessory" entitlement as distinct from the broader concept of a legal right to do so. In many or most cases, such identification is likely to depend on the existence of some present economic value of the entitlement to the individual claiming it conferred by a licence or other form of permission.
39 The questions of principle in this case-which is concerned with potential loss of livelihood-is, therefore, whether economic value is a distinguishing feature of a possessory right and whether it can only be identified in the sense of marketability. If it is not so confined, where, in any given case is the boundary between an article 1 possession and some other and broader Convention right not amounting to such a possession?
40 In my view, good sense and the Strasbourg and domestic authorities require separate consideration of claimed future monetary entitlements from a claimed future entitlement based on a personal interest in enjoyment of it but not involving any monetary claim. When considering a claimed future monetary entitlement derived from an instrument such as a licence or permit, a court should focus first on whether the entitlement has a present economic value to him in the sense of being marketable by him. Thus, in Legal & General Assurance Co Ltd v Kirk  IRLR 124 ... this court rejected the notion that a licence was itself capable of being an article 1 possession. The court was primarily concerned to distinguish the facts of that case, where the "possession" claimed was the right to seek employment of a particular type, from cases where a public authority has granted a licence to carry on a particular trade. In making that distinction, Jonathan Parker LJ, with whom Ward LJ and Harrison J agreed, noted, at para 41 of his judgment, that in licence cases "the economic interests which derive from the grant of such a licence may fall to be treated as, in effect, rights of property". The corollary of that reasoning would appear to be that the licence itself is not the "possession" and that whether the economic interests that flow from it are a possession depends on the facts, one of which may be the marketable goodwill that can flow from the exercise of a licensed trade, in effect, the Van Marle or Tre Traktörer type of case."
He then concluded:
"44 Mr Engelman submitted that Mr Parker's reliance on transmissibility as a necessary prerequisite of monetary value is unsupported and contradicted by Strasbourg authority, and asked why it should be so where a licensing system removes what would otherwise have been a bien. To an extent, Mr Engelman is, in my view, correct if his criticism is directed to the point that transmissibility cannot always be the touchstone of a possessory entitlement under article 1 . But, as I have said, where the possessory interest claimed is purely a monetary one, how else is it to be identified and valued for the purpose of determining whether there has been interference with it and, if so, whether that interference is justified in the general interest?
45 The matter has, in any event, been put beyond doubt in my view by the ruling of this court in Countryside  QB 305 , which binds us, upholding the reasoning of the Divisional Court that an individual's monetary loss, in the sense of loss of future livelihood, unless based on loss of some professional or business goodwill or other present legal entitlement, cannot constitute a possession attracting the protection of article 1."
I note that in Nicholds itself, it appears that the door supervisors' authorisations were, at least in certain cases, granted or evidenced in physical or documentary form: see §§10-12. Moreover, at §76, Kenneth Parker QC stated:
"It might be thought unfair that a professional person such as a barrister cannot capitalise future earnings and therefore enjoy "goodwill" as a protected possession. However, to address any such unfairness by treating the barrister's practice certificate as a "possession" would seem to me to risk creating unjustified discrimination against those carrying on an unlicensed activity who also do not or cannot capitalise future earnings"
Notwithstanding the observations of Auld LJ at §§36 and 37 in Malik, in my judgment, the mere fact that Mr. Atapattu's passport is a tangible object is not sufficient to constitute it as a "possession" for the purposes of Article 1 Protocol 1. The essence of a passport in general is that it represents some form of intangible privilege or entitlement for the holder. On the particular facts of the present case, the essential characteristic of Mr. Atapattu's passport upon which he seeks to rely here is that it allows him to earn his living in the merchant navy. In both these respects, it is an intangible object, and one which is not marketable nor has a monetary value. In this way, it is not an "asset" and thus not a "possession". This conclusion is supported by the fact that, on the analysis in Nicholds and Malik, it was not, or would not have been, open to the door supervisors in Nicholds to rely upon the fact that their existing authorisation was contained or recorded in a physical document or instrument to avoid the consequences of the fact that their underlying intangible entitlement was not "marketable" nor had monetary value. The same would apply to the barrister who sought to rely upon the physical document or instrument which is his barrister's practising certificate as a relevant "possession".
For these reasons, I conclude that Mr. Atapattu's passport is not a "possession" within the meaning of Article 1 Protocol 1.
(ii) The re-submitted visa application
Ms. Asanovic also appeared, at one stage, to be contending that the failure to grant a visa was also an interference with the peaceful enjoyment of Mr. Atapattu's possessions. In my judgment, such a claim can be dismissed. Whatever, economic benefits for Mr. Atapattu may or may not have flowed from the timely grant of a visa, such a claim does not involve any "possession" held by Mr. Atapattu. At no material time did Mr. Atapattu hold a granted visa (nor did he hold the right to be granted a visa). At most his entitlement was to consideration of his application for a visa within a reasonable time. For this reason alone, there is no possible claim under Article 1 Protocol 1 in respect of the failure to grant a visa. Further, even if a visa had been granted, it would not constitute a "possession"; such a visa is not marketable nor has monetary value.
In the light of my conclusion at paragraph 93 above, in principle, and subject to establishing his loss, the Defendant is liable to Mr. Atapattu for damages for conversion under the 1977 Act. Issues of quantum (and, possibly, causation) remain to be determined. Mr. Atapattu's claims for damages for negligence and under s.8 HRA are dismissed.
I will hear the parties as to the precise terms of the order, costs and any other consequential matters, including directions for the determination of the remaining issues.
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