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||Neutral Citation Number:  EWHC 226 (QB)
||Case No: HQ10X04282
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London WC2A 2LL
||16th February 2012
B e f o r e :
MR RICHARD SALTER QC
Sitting as a Deputy Judge of the Queen's Bench Division
|| (1) A.B.
||- and -
The Claimants appeared in person
Mr Navjot Atwal
(instructed by the Treasury Solicitor)
appeared for the Defendant
Hearing dates: 25, 28, 29, 30 November, 1 December 2011, 16 February 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR SALTER QC:
- This is a claim against the Home Office for damages for what the Claimants assert are breaches of the rights of the First Claimant as a citizen of the European Union, and of the Second Claimant as a family member of such a citizen. Both Claimants also claim damages for what they assert have been breaches by the Home Office of their right to respect for their private and family life.
- The Claimants' principal complaint relates to the period of time taken by the Home Office to issue an EEA residence card to the Second Claimant. The Claimants say that the Second Claimant, both as the unmarried partner of the First Claimant and as the mother of another citizen of the Union, their daughter, was entitled to be issued with such a card promptly upon application. It is the Claimants' case that the Home Office's prolonged failure to give effect to that entitlement has caused substantial and unlawful interference with the lives of the Claimants and of their daughter. In particular, they say that the Second Claimant has thereby been prevented from working lawfully in the United Kingdom, where the Claimants have made their home together, and so has been prevented from providing financial support to the Claimants' household. That, in turn, has prevented the First Claimant from completing his studies to qualify as a solicitor, and has wasted the money that he has so far spent on those studies (which he will now have to repeat). In effect, the Claimants say that both of their lives have been put on hold for more than 21/2 years, while they have been waiting for the Home Office to comply with its obligations.
- The Claimants rely upon the totality of the 953 day period from 26th March 2008, the date when the Second Claimant's applied to the Home Office for her EEA residence card, until 5th November 2010, the date when her EEA residence card was finally issued. However, the Claimants particularly complain of the Home Office's delay during the 31/2 month period after 15th July 2010, the date on which the Home Office gave a formal undertaking to an Immigration Judge in the Upper Tribunal that it would issue the Second Claimant with the EEA residence card for which she had applied. The Claimants also complain of the Home Office's conduct in imposing upon the Second Claimant reporting and other conditions of bail when she returned to the UK in February 2010 after spending the Christmas and New Year holiday season overseas, and in refusing promptly to remove those conditions even after her right to reside in the UK had been formally acknowledged by the giving of this undertaking.
- The Claimants rely upon 4 causes of action for their claims:
4.1. First, they say that the conduct of the Home Office failed to give effect to their rights under Articles 20 and 21 of the Treaty on the Functioning of the European Union (the "TFEU") and/or under Articles 7, 8 and 10 of Directive 2004/38 EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ("the Citizens' Directive") and/or Regulations 12 and 17 of The Immigration (European Economic Area) Regulations 2006 (the "2006 Regulations"), and that they are accordingly entitled to damages for breach of statutory duty.
4.2. Secondly, they say the conduct of the Home Office amounted to misfeasance in public office, entitling them to damages in tort.
4.3. Thirdly, they say that they are entitled to compensation or damages for breach by the Home Office of the undertaking which it gave on 15th July 2010.
4.4. Finally, they say that the conduct of the Home Office was incompatible with their right under Article 8 of the European Convention on Human Rights to respect for their private and family life, and was so unlawful under the Human Rights Act 1998 s 6(1). They accordingly claim damages under s 8(1) of that Act.
- On 17th November 2011, Cranston J ordered that the Claimants should be identified only by their initials. In this judgment, I shall refer to the First Claimant as "Mr B", to the Second Claimant as "Ms C", and to their daughter as "D".
- At the hearing before me, Mr B represented himself and (with my permission) Ms C. Ms C was present in court, with D, throughout the hearing. Although he is not yet professionally qualified, Mr B has a degree in European law, and I am grateful to him for his clear and moderate presentation of the Claimants' case. Mr B also gave evidence on behalf of both Claimants. The Home Office was represented by Mr Navjot Atwal of counsel, for whose thoughtful and realistic submissions I am likewise grateful. The evidence called on behalf of the Home Office came from Mr Stephen Walker, the Senior Home Office Presenting Officer who gave the 15th July 2010 undertaking on behalf of the Home Office, and from Mr Peter Iling, who has been the case officer primarily responsible for dealing with Ms C's case on behalf of the Home Office from 21st May 2010 onwards.
The Background Facts
- The principal facts which form the background to this action were largely uncontroversial. As they appear from the documents which I have seen and from the evidence which has been given before me, I find the relevant facts to be as follows.
- Mr B is a Swedish citizen, and therefore a citizen of the European Union. Apart from a period of study at the University of Ghent during the academic year 2002-3, Mr B has lived in the United Kingdom since about 1996. Ms C, who is a Bolivian citizen, came to the UK initially in May 2005. On 27th July 2005 she applied in La Paz for a visa to study in the UK. This was granted on 28th January 2006 for a period of 1 year, and was renewed for a further year until 2008.
- Mr B and Ms C met shortly after her arrival in the UK. They quickly formed an attachment, and have lived together in or near London since about November 2006. In May 2007 their daughter, D, was born in Newham University Hospital, Plaistow, London E13.
- On 26th March 2008, Ms C applied to the Home Office on form EEA2 for the grant of an EEA residence card. The ground specified in her application as entitling her to the grant of an EEA residence card was the existence of a durable relationship between herself and Mr B. Mr B was said to be employed as a Manager and Editor by a company called Capital & General Consultancy (UK) Limited. Ms C also enclosed with that application D's birth certificate and D's passport, which showed that D (who was then about 10 months old) was also a Swedish citizen, and therefore a citizen of the European Union in her own right.
- The Home Office replied on 17th April 2008, providing a Certificate of Application. However, that letter did not reach Ms C, as the address to which it was sent by the Home Office omitted the number of the Claimants' flat and gave the wrong postcode.
- Ms C sent the Home Office a letter dated 26th June 2008, informing the Home Office that she had not yet received any "confirmation letter", even though "I know for a fact that you have received the application as I have made several calls making enquiries about the application". In that letter, Ms C also asked for the return of her own and D's passports, as she planned to go on holiday. The Home Office's response, dated 3rd September 2008, indicated that the passports were being returned as requested, and pointed out that Ms C and D would need an EEA family permit to re-enter the UK, were they to leave. However, it did not give the requested confirmation, or any information about the progress of Ms C's application.
- In autumn 2008, Mr B took up new employment as a part-time lecturer in law at the University of Westminster.
- On 28th October 2008, Mr B wrote to the Home Office, pointing out that 9 months had by then passed since Ms C's application without any "acknowledgement letter" being received. He informed the Home Office of his change of occupation, and repeated Ms C's request for information as to the progress of her application.
- On 17th February 2009, almost 11 months after the date of Ms C's application, the Home Office finally wrote to Ms C, asking her to provide further documents and information to prove that Mr B was currently exercising Treaty rights in the UK, and that she and Mr B had been living together in a durable relationship for at least 2 years. Unfortunately, although that letter was correctly addressed, it also failed to reach Ms C.
- On 2nd April 2009, Mr B telephoned the Home Office, enquiring again what was happening to Ms C's application. He was, in turn, asked if he and Ms C had received the Home Office's letter dated 17th February 2009. When he said that he had not, he was told over the telephone by the Home Office about the documents that were required. In the course of that conversation, Mr B promised to send the required documents as soon as possible.
- I accept as entirely probable Mr B's evidence, set out in his letter dated 5th November 2009, that he thereafter tendered what he considered were the requested documents during one of the several visits to enquire about the progress of Ms C's application that the Claimants made to the Home Office's Public Enquiry Office at Lunar House in Croydon. However, there is no record in the papers which the Home Office has disclosed in this action either of any of those visits, or of the receipt of any further documents from the Claimants. On the contrary, an entry for 12th May 2009 in the Home Office's computer file for Ms C's case states that "As no documents received, file creation requested for refusal, b/f 26/05/2009". One possible explanation for this state of affairs may be that the physical file relating to Ms C's case was, at this time, with "European Casework" in Liverpool, where her case was being dealt with, rather than at the Public Enquiry Office in Croydon.
- The entry on the Home Office's computer file for 26th August 2009 records "As no evidence of r[elation]ship has been provided, this case is to be refused no ROA [ie, no right of appeal]. However, as this is an unmarried partner case with no valid leave, case to go on hold" pending further policy guidance being formulated and promulgated.
- It does not appear that the official in the Home Office who took that decision to refuse Ms C's application took any account of the fact (clearly recorded on the Home Office case notes) that the letters that the Home Office had sent to Ms C requesting this information had not been received by her (in the case of the first, because it had been mis-addressed by the Home Office). It also does not appear that the official concerned took into account the fact that no attempt had been made to send a further copy of either letter (although Mr B had been orally informed of the requirement to provide further documents when he telephoned on 2nd April 2009).
- On 14th September 2009, Mr B stopped work, and enrolled at BPP Law School as a student on the Legal Practice Course. If Mr B had successfully completed that course, it would have qualified him to undertake a training contract leading eventually to qualification as a Solicitor.
- In October 2009, Ms C asked the Home Office to return her passport and that of D, so that they could travel to Bolivia at the end of November 2009. The Home Office replied by letter dated 30th October 2009, stating that, if Ms C were to leave the UK, she would not be able to return, as she currently had no valid leave to remain. That letter asked Ms C to confirm in writing whether she "still" wished her application for an EEA residence card to be withdrawn.
- In response, Mr B and Ms C both again visited the Home Office's premises in Croydon on 3rd November 2010, and both wrote letters to the Home Office on 5th November 2009. (Ms C's letter was mis-dated 5th October 2009.) Ms C's letter emphasised unequivocally that she did not wish to withdraw her application, as Mr B's partner, for an EEA residence card.
- On 24th November 2009, the Home Office wrote to Ms C, informing her of its decision to refuse her application. The notes made on the Home Office case file on 23rd November 2009 justify this decision on the basis that "no evidence of co-hab received after 2 requests", thus wrongly treating the letters of 17th April 2008 and 17th February 2009 as if they had been received by Ms C, and ignoring the evidence in fact supplied to Lunar House.
- On 26th November 2009, Ms C and D left the United Kingdom to spend the Christmas and New Year holiday in Bolivia. Mr B received the Home Office's letter of refusal on 1st December 2009, a few days after Ms C's departure. In Ms C's absence, by Notice dated 25th December 2009 Mr B gave Notice of Appeal on her behalf to the Asylum and Immigration Tribunal against the Home Office's refusal decision.
- On Ms C and D's return to the United Kingdom in February 2010, the Entry Clearance Officer noted that Ms C's passport had no valid visa or any indication (such as the EEA residence card, for which she had applied but which had been refused) that she had the right to enter or remain in the United Kingdom. Faced with a probable refusal of entry, Ms C applied for asylum, claiming that she would be at risk of attack by Mr B's family were she to return to Bolivia. She was granted temporary admission to the UK, subject to reporting conditions, which were imposed on the basis that she was a person liable to detention.
- On 9th April 2010, the First Tier Tribunal (Asylum and Immigration Chamber) (Immigration Judge Turquet) dismissed Ms C's appeal against the refusal of her application for an EEA residence card. However, on 28th April 2010, another judge of the First Tier Tribunal (Senior Immigration Judge Dr Kekic) granted Ms C permission to appeal to the Upper Tribunal against that decision.
- While Ms C's appeal to the Upper Tribunal was pending, the Home Office refused Ms C's asylum claim. That refusal was communicated in a very detailed letter dated 28th May 2010, which was drafted and signed on behalf of the Secretary of State by Mr Iling. The grounds upon which the Home Office refused Ms C's asylum claim are, in general, not material for the purposes of the present action. However, two points made in that letter are of direct relevance to the Claimants' current claims.
- First, paragraph 102 of the Home Office's letter dated 28th May 2010 effectively conceded that a durable relationship existed between Ms C and Mr B, by stating that:
It has now been accepted that there is family life between you [ie Ms C] and [Mr B]
However, paragraph 103 of the letter went on to note that
.. the HMRC tax credit return for 2007/2008 and a bank statement from Mr [B] from 2009 show that he is in receipt of Income Support.
The relevance of the first of these points to Ms C's application for an EEA residence permit is plain. However, the second point is also potentially relevant because (for reasons that I shall explain later in this judgment) it called into question in Mr Iling's mind Mr B's own immigration status as an EU citizen exercising Treaty rights in the UK, on which Ms C's application for residence as his unmarried partner depended.
- The entry on the Home Office's computer file for 7th July 2010 records Mr Iling as noting that he was
.. genuinely puzzled as to why precisely the [Senior Immigration Judge] granted [permission to appeal] .. [Immigration Judge] Turquet did not deny the existence of family life but found that its existence was not proven by the documents before her to the threshold of the balance of probabilities ..
.. if there is an error here, it is that of [Mr B] in not submitting the required evidence ..
.. He claims that he is exerting [sic] treaty rights but failed to satisfy the Home Office or the Tribunal of this, and indeed, is on income support. This point is crucial as, if [Mr B] is not a qualified person, any appeal is invalid ...
- When Ms C's appeal came on for hearing on 15th July 2010 before Upper Tribunal Judge Moulden, Mr Walker, the Home Office Presenting Officer, cross-examined Mr B, Ms C, and D's godmother, who had appeared as a witness on Ms C's behalf. Mr Walker found that their evidence that a durable relationship existed between Ms C and Mr B seemed to be truthful. Mr Walker also noted the apparent concession made in paragraph 102 of the Home Office's letter dated 28th May 2010.
- In the light of that evidence, and of that apparent concession, it seemed to Mr Walker that the reason given by the Home Office in its letter dated 12th November 2009 for refusing Ms C's application – that she had not proved the existence of a durable relationship with Mr B – was no longer tenable.
- Mr Walker therefore decided that he should effectively concede Ms C's right to the issue of an EEA residence card, by giving to the Upper Tribunal an undertaking on behalf of the Home Office that it would issue such a card to Ms C. Before giving that undertaking, Mr Walker did not consult Mr Iling. Nor did he address his mind to the issue of Mr B's immigration status, a point which Mr Iling regarded as "crucial".
- On the basis that her claim had been conceded by the undertaking given by Mr Walker, Ms C formally withdrew her appeal. Upper Tribunal Judge Moulden recorded the undertaking given on behalf of the Home Office in the Decision which he promulgated on 27th July 2010, as follows:
4. .. Mr Walker conceded and I find that [Immigration Judge Turquet] made a material error of law. There was evidence before her which was clearly relevant to the question of whether [Ms C] and [Mr B] had been living together in a stable relationship which she failed to consider, notably the letter from [D's godmother].
5. Having found that there was a material error of law, I was invited to and agreed to hear all the evidence. I heard evidence from [Ms C], [Mr B] and [D's godmother] and Mr Walker cross-examined them. At the conclusion of [Ms C's] case Mr Walker reconsidered [the Home Office's] position, and conceded that [Ms C] was entitled to the grant of a residence card as a family member of an EEA national. On behalf of the Secretary of State he gave an undertaking that a residence card would be issued to her and, relying on that undertaking, [Ms C] withdrew her appeal. I record the undertaking given on behalf of [the Home Office] and that [Ms C] has withdrawn her appeal.
- Mr B and Ms C (in my judgment, perfectly reasonably) thought that the Undertaking given by Mr Walker to Upper Tribunal Judge Moulden on 15th July 2010 would be the end of the matter and that, very shortly thereafter, Ms C would receive the residence card for which she had applied. In an email dated 16th July 2010, Mr B therefore recorded what had happened before the Upper Tribunal and, on that basis, asked Mr Iling to suspend forthwith the reporting requirements and other bail conditions imposed upon Ms C.
- Mr Iling's reply, sent by email the same day, stated that "until the Tribunal has served its determination upon all parties its Order cannot take effect .. I cannot act until the Tribunal has notified us officially of its decision"; that "I will [then] need to arrange for the file to be passed to a different team to process the EEA permit for [Ms C] so there will be a purely administrative delay in issuing the permit"; and that "Regardless of the EEA permit [Ms C] remains a Bolivian citizen, subject to immigration control. Consequently the reporting restrictions will remain in place while the asylum claim is outstanding. However, once I receive confirmation of the allowed EEA application, I will be happy to reduce [Ms C's] reporting restrictions to once a month".
- On 16th July 2010, Mr Walker made a formal note on the Home Office records, noting that [Ms C] had withdrawn her appeal because he had given "an undertaking that a residence card would be issued" to her.
- When Mr Iling learned of what had happened at the hearing before Upper Tribunal Judge Moulden, Mr Iling was displeased. In Mr Iling's view, no concession should have been made and no undertaking should have been given by Mr Walker. Mr Iling therefore consulted the Home Office's Specialist Appeal Team to enquire whether it was legally possible for the Home Office to concede what (in Mr Iling's view) was an invalid appeal. In the meantime, he took no action to implement (or to procure the implementation by the appropriate Home Office team of) the undertaking which Mr Walker had given.
- On 3rd August 2010, Ms C's appeal against the refusal of her asylum claim came on for hearing before Immigration Judge Martins. The Home Office was represented at that hearing by Mr Sanjay Vaghela. Ms C was not present. Immigration Judge Martins pointed out to Mr Vaghela that the notes on Ms C's case recorded that the Home Office had given an undertaking to Upper Tribunal Judge Moulden on 15th July 2010 to issue Ms C with an EEA residence card, and that the date fixed for her asylum appeal was therefore to be vacated. Immigration Judge Martins asked Mr Vaghela whether that undertaking had yet been performed. When Mr Vaghela said that he did not know, Immigration Judge Martins asked Mr Vaghela for an undertaking (which he gave) to inform Immigration Judge Martins of the outcome.
- Mr Vaghela recorded all of this in an email dated 4th August 2010, which he sent to Mr Walker and to Mr Iling. That email attached a copy of the formal Determination which had by then been promulgated by Upper Tribunal Judge Moulden. Mr Iling responded by sending an email in the following terms to a senior executive officer at the Specialist Appeal Team, Mr John McGirr:
Please see below. I am sorry to say that I am becoming rather irritated that I have had no real response from SAT yet as to the course ahead. I firmly believe that [Ms C] had no valid appeal, as [Mr B] is not a qualified person; and that that no concession should have been made in this case. However we need to know what the current situation is before deciding how to proceed with the EEA application and asylum appeal.
- Mr Iling's evidence was that he did not receive a copy of Upper Tribunal Judge Moulden's Determination until it was sent to him by Mr Vaghela under cover of his 4th August 2010 email, and that he did not consult the Specialist Appeal Team until he had received that copy of the determination. It is plain from the terms of Mr Iling's 4th August 2010 email, which I have quoted above, that at least the second part of that evidence cannot be right. By this time, Mr Iling had (in my judgment) already been well aware for some time of the undertaking which Mr Walker had given, and had already consulted the Specialist Appeals Team for their advice as to whether, in the circumstances, it was necessary for the Home Office to honour that undertaking.
- Mr McGirr responded to Mr Iling on 5th August 2010, saying that he had copied Mr Iling's email to Mr Walker for Mr Walker to make a substantive response. Mr McGirr then forwarded to Mr Walker the email which he had received from Mr Iling, with the comment "He's back. I have washed my hands of this. All yours".
- On 9th August 2010, Mr B telephoned Mr Iling. In the course of that conversation, Mr Iling explained to Mr B that Mr Walker had (in Mr Iling's opinion) exceeded his authority at the hearing before Upper Tribunal Judge Moulden, and that Mr Iling had therefore made a complaint to Mr Walker's managers, from whom Mr Iling was awaiting a substantive response.
- Mr B recorded this conversation in an email dated 9th August 2010 to Mr Iling, in which he requested the Home Office to comply promptly with the undertaking that it had given, so that "[Ms C], D and I can get on with our lives". Having consulted his line manager, Mr Iling responded the following day. In an email dated 10th August 2010, Mr Iling confirmed that he was cancelling Ms C's reporting restrictions with immediate effect. With regard to Ms C's application for a residence permit, Mr Iling informed Mr B that he had "escalated the case to a senior manager in the Specialist Appeal Team", and that it was now that team's responsibility to determine whether a permit would be issued, and if so, when. According to Mr Iling's email, "There is no real deadline set in such cases though the courts do frown on a delay of more than three months".
- On 10 August 2010, Mr McGirr sought advice by email from "the relevant Senior Immigration Judge" as to whether the Home Office could rely upon the fact that Mr B (who had represented Ms C before Upper Tribunal Judge Moulden, as he did before me) was not professionally qualified and was therefore "not qualified to act as representative" to argue that the hearing before Upper Tribunal Judge Moulden was "invalid and that a further hearing may need to be arranged". Mr McGirr's email, forwarding to Mr Iling a copy of this request for his information, is revealing:
Peter, This is, I am afraid, a sneaky way of approaching the case. .. I must admit, I don't think we'll get anywhere with this but it was the only near-feasible approach I could think of using here. We should hear in 2-3 weeks so I may be in touch then.
- On 13th August 2010, Mr Iling wrote a letter to Ms C, confirming that her case had been referred to the Specialist Appeal Team, who (according to Mr Iling) had "identified several issues which may affect the validity of the appeal", and had therefore "requested a clarification from the Immigration and Asylum Chamber of the First Tier Tribunal in order to obtain a definitive conclusion".
- On 3rd September 2010, Mr B sent a further email to Mr Iling, asking him to explain the reasons for the continuing delay.
- On 9th September 2010, Mr Walker sent an email to Mr Iling, explaining that his decision to offer an undertaking to Upper Tribunal Judge Moulden had been a "pragmatic [one] after hearing the evidence of the appellant and witnesses". Mr Iling's reply, also dated 9th September 2010, re-iterated his concerns as to why Ms C's appeal should not have been conceded, and concluded "Lastly, my team does not issue EEA residence permits – you should return the file to the team responsible for the original decision for them to process".
- On 10th September 2010, Ms C issued a Claim Form in the Epsom County Court against the UK Border Agency seeking damages. She also issued an Application Notice, in which she sought an injunction against Mr Walker and the Secretary of State requiring them to perform the undertaking given to Upper Tribunal Judge Moulden on 15th July 2010.
- On 29th September 2010, Ms C's asylum appeal came back for hearing, on this occasion before Immigration Judge Khan. When Mr B explained the history of the matter to Immigration Judge Khan, Immigration Judge Khan required Ms Hastings, the Home Office Presenting Officer, to explain why the undertaking given to Upper Tribunal Judge Moulden had not been performed. The explanation given by Ms Hastings (unsurprisingly) did not satisfy Immigration Judge Khan, and he required Ms Hastings to call the Home Office to make sure that the undertaking would be complied with immediately.
- Mr B recorded what had happened before Immigration Judge Khan in an email dated 30th September 2010 which he sent to Mr Iling. Mr Iling forwarded Mr B's email to Ms Hastings, asking "Is this an accurate record of proceedings yesterday? .. What's your prognosis?". He also forwarded it to Mr Walker, saying that
.. as you conceded the recon hearing, leaving us no alternative, please ensure the file is passed to Liverpool .. as they refused the permit originally and upheld it at reconsideration, they should issue the permit and implement the determination ..
Ms Hasting's response to Mr Iling was that she had spoken to Mr Walker, who had been waiting to receive a copy of Upper Tribunal Judge Moulden's Determination before forwarding Ms C's file to Liverpool. Ms Hastings' email to Mr Iling said that she had now supplied Mr Walker with a copy of the Determination, and accordingly "the next you should hear of this is that the residence card has been issued and the appellant writing to withdraw the appeal".
- Ms C's file was eventually received in Liverpool on 12th October 2010. Unfortunately, because Ms C's appeal was shown as "withdrawn" rather than as "conceded", it was placed into the holding file store on 22nd October 2010. It was recalled from there on 26th October 2010, and the permit was finally issued to Ms C on 5th November 2010. On 8th December 2010, the First Tier Tribunal finally dismissed Ms C's claim for asylum.
- Meanwhile, on 15th October 2010, Ms C's proceedings had been transferred from the Epsom County Court to the Queen's Bench Division of the High Court: and it is those proceedings (in substance) which have come before me for trial.
The Relevant Statutory Provisions
- Having set out the facts, I now turn to consider the relevant statutory provisions which form the background to this dispute.
- Under European law, every person holding the nationality of a Member State is a citizen of the Union. As the Court of Justice of the European Union has stated on several occasions, Union Citizenship is destined to be the fundamental status of nationals of the Member States, enabling those citizens who find themselves in the same situation to enjoy within the scope of the Treaty the same treatment in law irrespective of their nationality.
- One of the rights attached to citizenship of the Union is the right to reside in the territory of the Member States. This right is granted directly to every citizen of the Union by a "clear and precise provision" of the TFEU. Articles 20 and 21 of the TFEU (so far as is relevant) provide as follows:
(1) Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
(2) Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States ..
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
- The Court of Justice of the European Union has ruled that citizens of the Union are entitled to reside in another Member State purely as citizens of the Union, thus recognising EU citizenship as a direct source of Citizens' rights. However, as the Court of Justice has also recognised, it is plain from the wording of these Articles of the TFEU that such rights may only be "exercised in accordance with", and are "subject to the limitations and conditions laid down in", the Treaties and the legislative measures which the European Union has adopted in order to give effect to those Treaty rights.
- It follows that the precise extent of the relevant rights, and the limitations and conditions upon the exercise of those rights, can only be ascertained by considering the terms of the subordinate legislation.
The Citizens' Directive
- The legislative measure currently adopted to give effect to these provisions of the TFEU is the Citizens' Directive (to which I shall sometimes refer simply as "the Directive"). This extends to several non-EU countries such as Switzerland and Norway, and so confers rights upon EEA nationals, as well as upon citizens of the Union.
- As Article 1 of the Directive states:
This Directive lays down the conditions governing
(a) the exercise of the right of Citizens' and residence within the territory of the Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.
- Under Article 3, the Directive applies to
.. all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
- The right of an EU Citizen to reside in another Member State is dealt with in Chapter III of the Directive. The Articles of the Directive in that Chapter draw a distinction between short term and longer term residence. Article 6 confers a right of short-term residence in any Member State for up to 3 months "without any conditions or any formalities other than the requirement to hold a valid identity card or passport".
- However, the right to reside in another Member State for more than 3 months is dealt with separately, by Article 7. Article 7(1) confers that right upon EU citizens only if they:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and
– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence
- As Recital (5) to the Directive makes clear, the effective exercise of these rights of residence requires that they should also extend to the family of the EU citizen concerned. Articles 7(2) and 7(4) therefore provide that:
(2) The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c). ..
(4) By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under 1(c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of his/her spouse or registered partner.
- The reference in Article 7(4) to Article 2(2)(b) is to a sub-paragraph of the definition of "family member" in Article 2(2). That definition states that:
"Family member" means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).
- As may be seen, this definition excludes unmarried partners, such as Ms C, and same-sex partners who are not in a civil partnership. Their situation is dealt with separately: and while "family members" are given the automatic right to reside with an EU citizen who satisfies the conditions in Articles 7(2) and 7(4), no such automatic right is granted to unmarried partners or to same-sex partners who are not in a civil partnership.
- In relation to unmarried partners, such as Ms C, Recital (7) states that:
In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.
- Article 3(2) then provides that
Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
- For many purposes, it is necessary or helpful for a family member of an EU citizen to be able formally to demonstrate the existence of his or her right of residence, by production of a suitable official document. Articles (9) and (1) of the Directive therefore provide for the issue to such a person, first, of a certificate of application, and then of an EEA "residence card".
- Article 9(1) provides that:
Member States shall issue a residence card to family members of a Union citizen who are not nationals of a Member State, where the planned period of residence is for more than three months.
Article 10 then provides that:
(1) The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called "Residence card of a family member of a Union citizen" no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately. ..
(2) For the residence card to be issued, Member States shall require presentation of the following documents: ..
(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen.
The 2006 Regulations
- The Citizens' Directive has been implemented in the UK by the 2006 Regulations.
- Like the Directive, the 2006 Regulations draw a distinction between an "initial right of residence" for less than 3 months (Regulation 13) and an "extended right of residence" for more than 3 months (Regulation 14). The initial right of residence extends to all EEA nationals who hold a valid passport or national identity card. The extended right of residence is only available to "qualified persons". The definition of this term in Regulation 6 in effect describes an EEA citizen who meets the conditions in Article 7(1) of the Directive.
(1) In these Regulations, "qualified person" means a person who is an EEA national and in the United Kingdom as (a) a jobseeker; (b) a worker; (c) a self-employed person; (d) a self-sufficient person; or (e) a student.
(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if .. (d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.
- In order to come within the definition of a "self-sufficient person" or a "student" for these purposes, the person concerned must have (among other things) sufficient resources not to become a burden on the social assistance system of the United Kingdom. Regulations 4(2) and 4(3) make it clear that, where the right of a family member of such a self-sufficient person or a student to reside in the United Kingdom depends upon that self-sufficient person's or student's right of residence, the resources of both of them must, taken together, be sufficient to avoid either of them being a burden on the system. Under Regulation 4(4), that will be the case where those resources
.. exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system ..
- Also like the Directive, the 2006 Regulations draw a distinction between a "family member" of a citizen (defined in Regulation 7 in materially similar terms to the definition in Article 2(2) of the Directive), and an "extended family member". Regulation 8(5) (in words which reflect the terms of Article 3(2)(b) of the Directive) defines "extended family member" to include a person who is:
.. the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national ..
- The initial right of residence under Regulation 13 extends to a family member of an EEA National provided that he holds a valid passport. The extended right of residence under regulation 14 applies also to
.. a family member of a qualified person residing in the United Kingdom .. for so long as he remains the family member of the qualified person ..
- Regulation 7(3) includes an "extended family member" within the definition of "family member" provided that certain criteria are satisfied. The parts of Regulation 7(3) and 7(4) that are material to this action provide that:
(3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the condition .. [that he is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national] in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.
(4) Where the relevant EEA national is a student, the extended family member shall only be treated as the family member of that national under paragraph (3) if .. the residence card was issued under regulation 17(4).
- It follows that Ms C, as the unmarried partner of Mr B, would have been entitled to an extended right of residence in the United Kingdom under Regulation 14 only if (a) Mr B was a qualified person within the meaning of Regulation 6, and (b) having proved to the decision maker that she was in a durable relationship with Mr B, she had been issued by the Home Office with an EEA family permit, a registration certificate, or a residence card.
- The issue of an EEA residence card (which is what Ms C applied for) is dealt with in Regulation 17. So far as material, that Regulation provides that:
(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of:
(a) a valid passport; and .
(b) proof that the applicant is such a family member.
(2) The Secretary of State must issue a residence card to a person who is not an EEA national but who is a family member who has retained the right of residence on application and production of:
(a) a valid passport; and.
(b) proof that the applicant is a family member who has retained the right of residence. .
(3) On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State shall immediately issue the applicant with a certificate of application for the residence card and the residence card shall be issued no later than six months after the date on which the application and documents are received.
(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if
(a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under Regulation 15; and
(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.
- As can be seen, Regulation 17 reflects the distinction drawn in the Directive and elsewhere in the Regulations between the position of a "family member" and that of an "extended family member". The Secretary of State "must" issue a residence card within 6 months of application, and "shall" immediately issue a certificate of application to a "family member". He "may", but is not required to, act in that way in the case of an application by an "extended family member" such as Ms C.
- Moreover, proof that the applicant comes within the definition of "extended family member" in Regulation 8(5) is a threshold condition:
Without proof of a durable relationship, the Regulation 17(5) duty does not apply. That becomes clear when the Regulations are considered in the light of Article 3(2) of the Citizenship Directive, by which the obligation to undertake and extensive examination applies to a "partner with whom the Union citizen has a durable relationship, duly attested.
Ms C's right to reside in the United Kingdom
- Very properly and fairly, the Home Office has not sought to go behind the concession implicit in the undertaking which Mr Walker gave to Upper Tribunal Judge Moulden on 15th July 2010. This case has therefore been argued before me on the basis that Ms C has at all material times (at least since July 2010) been entitled to reside in the UK as a family member of a qualified person residing in the UK, Mr B.
- However, in order properly to consider the claims made in this action (and, in particular, the claim that the Home Office, through Mr Iling, was guilty of the tort of misfeasance in public office), it is necessary for me to examine in a little more detail the nature, extent and legal source of Ms C's rights.
- Mr B's first and most fundamental submission was that Ms C, as a member of Mr B's family, enjoyed a right of residence which arose directly under the TFEU, as an adjunct to the right of residence conferred on him as an EU citizen by TFEU Articles 20 and 21. In Mr B's submission the right of Ms C, as his partner and the mother of his child, to live with him in the United Kingdom, arose by necessary implication from the fact that a right of residence in the UK was granted by the TFEU to him. If his partner and child were not entitled to live with him, his own right of residence (he submitted) would be deprived of any useful effect. To the extent that the Citizens' Directive or the 2006 regulations sought to restrict his and Ms C's rights in any way, or to impose conditions, they were inconsistent with the fundamental provisions of the TFEU, and so should be ignored.
- In support of this submission, Mr B relied upon the cases of Baumbast, Chen, and Ibrahim. He also pointed out that the Court of Justice has said in terms, both in Rottmann and in Zambrano, that TFEU Art 20 "precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union".
- Attractively though Mr B presented this submission, I cannot accept it. As I have already noted, the wording of TFEU Articles 20 and 21 makes it clear that the rights of residence which those articles confer upon EU citizens can only be "exercised in accordance with", and are "subject to the limitations and conditions laid down in" (inter alia) the Citizens' Directive. The Directive is not a "national measure", but a piece of EU legislation in its own right.
- In order for Ms C to establish that she was entitled to a right of residence in the United Kingdom as Mr B's unmarried partner, it was therefore (in my judgment) necessary for her to show that her situation met the relevant conditions prescribed by the Directive. And, since the terms of the Directive required the United Kingdom, as the host Member State to facilitate entry and residence for her only "in accordance with its national legislation", it was also necessary for her to comply with the requirements of the 2006 Regulations.
- That conclusion is not in any way inconsistent with the cases relied upon by Mr B. Those cases all involved children who enjoyed an independent right of residence in their own right. In some of the cases, the children were born in, and so were nationals of, the relevant Member State. As was held in Zambrano, the Citizens' Directive cannot apply to such situations, since it applies only to those EU citizens (like Mr B) who move to or reside in a Member State other than that of which they are a national. However, in those cases in which the Directive (or its predecessors) was applicable on the facts, the Court did not ignore the provisions of the Directive. Instead, it focussed upon interpreting the provisions of the Directive having regard to the objectives of the Treaty and to the parties' human rights. In particular, the Court had regard (explicitly or implicitly) in each of these cases to the issue of whether the child met the conditions laid down in (what is now) Article 7(1) of the Directive so as to be entitled in his or her own right to a right of residence.
Rights as mother and carer of D
- Depending upon the facts (which were not fully explored before me), there may be more force in an alternative submission which Mr B formulated in the course of argument. That was that his daughter, D, had an independent right of residence in the United Kingdom, as an EU citizen in her own right, and that Ms C was therefore entitled to reside in the UK for as long as D was exercising that right and needed her, as D's mother and principal carer.
- It seems to me that, provided that it could be established on the facts (which were not explored before me) that D is (having regard to the resources of her family) a "self-sufficient person" within Regulation 6 of the 2006 Regulations (and so meets the condition in Article 7(1) of the Directive), she would indeed have an independent extended right of residence in the United Kingdom in her own right.
- It also seems to me that, in those circumstances, Ms C might well have a right of residence derived from D's right, provided that it could be established on the facts (which, again were not explored before me) that Ms C's presence here is needed (despite the presence here of D's father, Mr B) in order for D effectively to enjoy her right of residence. Ms C is not a "family member" of D, within the meaning of Article 2(2) of the Directive: but it does not seem to me to be implausible that a very young child, such as D, would need to have her mother living with her here in order to enjoy her own right of residence here effectively, even if her father were also here and assisting with her care.
- Fortunately, it is not necessary for the purposes of this case for me to make any final determination about any of these matters, and I do not do so. For present purposes, it is sufficient for me to note that the formal application which Ms C made to the Home Office on Form EEA 2 on 26th March 2008 was not based in any way upon this ground.
- The only basis on which Ms C claimed a right of residence in that Form was that she was the unmarried partner of Mr B. It is true that Ms C also submitted a copy of D's birth certificate with her Form: but that was as evidence of her relationship with Mr B, not as a separate ground of claim.
- In my judgment, the Home Office cannot properly now be criticised for not considering and investigating the facts in relation to the possible alternative bases on which Ms C might have rested her claim, when Mr B and Ms C did not invite the Home Office to do so at the time of Ms C's application.
Rights as the unmarried partner of Mr B
- I therefore turn to consider the basis on which Ms C did, in fact, make her application. Under the Directive and the 2006 Regulations, Ms C had to establish 2 matters: first, that Mr B was a "qualified person"; second, that she was Mr B's partner, and had a durable relationship with him.
- In relation to the first matter, Ms C relied in her Form EEA 2 upon the fact that Mr B was an EU citizen, who was exercising his treaty right to reside in the United Kingdom as a "worker", by virtue of his employment as a Manager and Editor by a company called Capital & General Consultancy (UK) Limited.
- In autumn 2008, Mr B took up new employment as a part-time lecturer in law at the University of Westminster, and informed the Home Office of this fact in October 2008. In evidence before me, Mr B told me that this new post involved him in giving only 6 hours of tuition per week (for which he was paid £46 per hour, making £276 per week) and that he was therefore in a "very sticky financial situation". Nevertheless, even this very part-time work would probably still have qualified him as a "worker" for these purposes.
.. [T]he concept of worker .. has a specific Community meaning . As the Court has already held, any person who pursues an activity which is effective and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, is to be treated as a worker .. The essential characteristic of the employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration ..
- However, in September 2009, Mr B stopped work, and enrolled at BPP Law School as a student on the Legal Practice Course. Despite the fact that Mr B's decision to cease work was entirely voluntary, Regulation 6(2)(d) may well have meant that Mr B did not stop being a "worker" for the purposes of the Directive and the 2006 Regulations, since the course on which he then embarked was one of "vocational training [to qualify as a solicitor] that is related to his previous employment [as a law lecturer]".
- Mr Iling does not appear to have considered this possibility in forming the view (which, as I have recorded above, he expressed on a number of occasions from June 2010 onwards) that Mr B was not a "qualified person" on whose rights Ms C could base a claim to a right of residence.
- In this connection it is right to note that, had the relationship between Mr B's previous employment and his new course not been sufficiently close to bring him within Regulation 6(2)(d), he could only have been a "qualified person" after September 2009 either as a "self-sufficient person" or as a "student": and it is unlikely that he could have qualified under either of those heads if he was (as Mr Iling appears to have believed) in receipt of Income Support at the material time.
- However, it is also right to note that the receipt of Income Support does not prevent an EU citizen from being a "worker" (as Mr B was until September 2009) and so a "qualified person" for these purposes, and that full-time students (as Mr B was from September 2009 until the summer of 2010) are not generally eligible for Income Support (though there are some exceptions). It is also right to note that at least one of the reasons for the low family resources available to Mr B throughout this period was the fact that his partner, Ms C, had not yet been issued with her EEA residence card, and so was not yet able lawfully to work (as she and Mr B intended) to support the family.
- These are all issues which were highly material to the question of whether Mr B was a "qualified person" on whose immigration status Ms C could rely. However, Mr Iling does not appear to have considered it necessary to explore any of them in any depth before reaching his adverse conclusion. This seems to have been because he took the view that "he who asserts must prove", and that it was therefore sufficient to entitle him to form the view that Mr B was not a "qualified person" that the documentary evidence so far provided by Ms C did not (on its own and without further enquiry) unequivocally establish Mr B's immigration status. In my judgment, that was an unduly simplistic and adversarial approach to his task, particular since (as the Home Office's own file notes clearly recorded) the Home Office's letters requesting such documentary evidence had never reached Ms C.
- As for the second element – proving to the Home Office that she was in a durable relationship with Mr B as his unmarried partner – the Home Office applied in considering Ms C's application its policy of requiring (as evidence of a "durable relationship") documentary evidence that Ms C and Mr B had lived together for at least 2 years. At the time when Ms C first applied for an EEA residence card in March 2008, she and Mr B had lived together at the same address for only about 18 months. However, they had by then had a sexual relationship for almost 3 years, and had a 10-month old daughter, D: and by the time that the Home Office finally refused Ms C's application in November 2009, Ms C and Mr B had been living together for about 3 years.
- Mr B urged me to find that this policy was unlawful under EU law, and drew my attention to a number of published criticisms of the policy. He pointed out that the requirement that unmarried partners should have lived together for at least 2 years did not appear anywhere in the Directive or the Regulations, and submitted that a "durable" relationship could be proved in many other ways. He also invited my attention to the Commission's observation, under the heading "The right to freedom of movement is hindered by divergent and incorrect application of EU law and by cumbersome administrative procedures", that:
.. Obstacles to the right of entry and the issuance of residence cards to third-country family members accompanying or joining EU citizens moving to other Member States include excessive requirements for documents to be submitted, cumbersome administrative procedures and delays. Other family members of EU citizens (eg de facto partners) may encounter problems in having their right of entry and residence facilitated. Further problems occur when the concept of 'other family members' is either not reflected in national legislation or is interpreted in a manner contrary to EU law ..
- However, I do not consider that it would be appropriate for me to accede to Mr B's request, or to attempt to reach any final conclusion as to the legality of this policy in this present action. There are contrary arguments to those put forward by Mr B. The point, which is one of some general importance, has not been fully argued on behalf of the Home Office, and a ruling on this issue is not necessary in order for me to decide the present case. The Home Office did not refuse Ms C's application in November 2009 because she had demonstrated less than 2 years of family life, but because she had (in the Home Office's view) failed adequately to prove that she and Mr B were a family at all.
- Even so, it is right that I should record that, on the basis of the evidence which I have heard and which has been placed before me, I have no doubt whatsoever that Mr Walker's concession to Upper Tribunal Judge Moulden - that Ms C and Mr B had and have an established family life together and were and are in a durable relationship - was rightly made.
The Claimants' Claims
Breach of Statutory Duty
- The first claim put forward by the Claimants is a claim for breach of statutory duty under the TFEU, the Directive and/or the Regulations. Mr B, on behalf of the Claimants, argues that the Home Office is liable to compensate the Claimants, under the principles laid down in Francovich v Italy and R v Secretary of State for Transport, ex parte Factortame Ltd, for two failures:
104.1. First, the Home Office's failure to issue to Ms C a certificate evidencing her application for a residence card. Mr B submits that this certificate should, under Article 10 of the Directive and regulation 17(1) of the 2006 Regulations, have been issued immediately, and would thereafter have allowed Ms C lawfully to work in the United Kingdom; and
104.2. Second, the Home Office's failure to issue a residence card to Ms C. Mr B submits that this should, under Article 10 of the Directive and Regulation 17(3) of the 2006 Regulations, have been issued to Ms C at the latest within 6 months of the date of her application.
- In my judgment, this claim is misconceived in law.
- First of all, the specific provisions of the Directive and the Regulations on which Mr B founds his argument do not apply to Ms C. As I have already explained, an unmarried partner such as Ms C does not come within the definition of "family member" for the purposes of the Citizens' Directive, and can only fall to be treated as a "family member" for the purposes of the Regulations if he or she has already been issued with an EEA family permit, a registration certificate, or a residence card (none of which had happened in Ms C's case).
- The provisions upon which Mr B relies, by their express terms, apply only to a "family member of a qualified person" and not to an "extended family member" such as Ms C. It follows that, in relation to Ms C's claim, no such obligations arose and no such express time limits applied.
- Secondly, although it does not by any means follow from the first point that Ms C had no rights at all under the Directive and the Regulations, the nature of the entitlements which the Directive and the Regulations (relevantly) gave to her were not such as to give rise to a private law claim for damages for breach of statutory duty, either at common law or under the European Communities Act 1972.
- By making her application on the basis that she was the unmarried partner of Mr B (and so an "extended family member"), Ms C was asking the Home Office for the grant of a right of residence, not seeking to enforce a right of residence which she already had. As Recital 7 to the Directive make clear, "those persons who are not included in the definition of family members under this Directive .. do not enjoy an automatic right of entry and residence in the host Member State".
- The entitlement which Article 3(2) of the Directive conferred on Ms C was, upon proof that she had a "durable relationship, duly attested" as the unmarried partner of an EEA citizen, to have the United Kingdom authorities "undertake an extensive examination of [her] personal circumstances", in order to "facilitate [her] entry and residence" "in accordance with [the United Kingdom's] national legislation". It was not an automatic right of entry and residence granted under Community law.
- The 2006 Regulations contain the relevant provisions of that national legislation. Regulation 7(3) of the 2006 Regulations gives unmarried partners who prove the necessary durable relationship an extended right of residence only if (relevantly) they hold an EEA residence card. By Regulation 17, the Secretary of State is given a discretion whether or not to grant a residence card to such a person, subject to the sanction in Regulation 17(5) that he must "undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application [must] give reasons justifying the refusal unless this is contrary to the interests of national security".
- Thus, what Ms C is in reality entitled to complain about is simply the delay by the Secretary of State in exercising, and subsequent refusal to exercise in her favour, the discretion given to him by national law to grant or refuse to grant a residence card and, thus, a right of residence, to her.
- Regulation 26 of the 2006 Regulations provided a right of appeal from the Secretary of State's decision, which Ms C in the event successfully exercised. English law also provided an effective right of Judicial Review (in circumstances not covered by the statutory right of appeal), by which Ms C could have challenged the validity of the 2006 Regulations and their compatibility with EU law, or sought a mandatory injunction to require the Secretary of State to perform his statutory duty.
- Given the discretionary nature of the Secretary of State's duties, the public policy dimension to his role, and the availability of these effective alternative remedies, it is clear that English law would not regard this as the kind of case in which the statutory duty itself carries a civil cause of action for its breach.
- A similar conclusion also seems to me to follow in relation to the Community Law aspects of the Claimants' claims. The conditions which must be satisfied in order for a Member State to be required to make reparation for loss and damage caused to individuals as a result of breaches of Community law for which the state is responsible are now well-settled by the jurisprudence of the Court of Justice of the European Community. The rule of law infringed must be intended to confer rights on individuals. The breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation incumbent on the state and the loss or damage sustained by the injured parties.
- The first step in this analysis must logically be to identify the particular provision of Community law which has been infringed. As I have already explained, there has been no breach of the Community law provisions specifically relied upon by the Claimants, since those provisions do not apply to someone in Ms C's position. The provisions of Article 3(2) of the Directive which do apply do not confer either a right of residence, or a right to the grant of a right of residence. Instead they refer the matter to the "host Member State on the basis of its own national legislation, to decide whether entry and residence could be granted".
- Against that background, it seems to me that these particular entitlements are not such as to have been intended to confer rights on individuals such as Ms C which go beyond those rights provided for under the relevant national laws (such as the 2006 Regulations) which have been enacted compatibly with the relevant Community legislation. United Kingdom national law provides wholly adequate remedies to protect Ms C's Community rights, such as they are.
- Even if I were to be wrong about that, it also seems to me that Ms C's complaint, when properly understood, could not a involve a sufficiently serious breach by the United Kingdom of its obligations under Community law as to give Ms C individually any claim for damages for breach of her Community rights. As observed by the Court of Justice in Brasserie du Pêcheur,
… the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.
The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law ..
- To the extent (if any) that the Claimants are able to establish that the Home Office acted in deliberate bad faith, national law provides a remedy in the tort of misfeasance in public office (which I discuss below). To the extent that the Claimants' case falls short of that, their complaint is in substance simply about delay and maladministration. That would not involve any sufficient manifest and grave disregard by the Home Office of its Community law obligations as to give rise to a claim for damages.
- The conclusions in paragraphs 108 to 112 above as to the limited nature of Ms C's rights also suffice to dispose of the Claimants' claims insofar as they are based upon the Home Office's decision to impose and to maintain the imposition of reporting requirements upon Ms C.
- At the point at which the restrictions were first imposed on Ms C, on her arrival back into the United Kingdom on 7th February 2010, Ms C had (contrary to the foundation of Mr B's argument on her behalf) no right of entry or of residence here. The Home Office was accordingly entitled to impose conditions (including reporting requirements) on her entry to this country, under regulations 22 and 23 of the 2006 Regulations and the provisions of the Immigration Act 1971 which are referred to in those regulations.
- Strictly speaking, Ms C did not acquire any right of residence in the United Kingdom until the EEA residence card was actually issued to her in November 2009. The Home Office therefore committed no legal wrong against her by maintaining those reporting requirements in place until 9th August 2010.
- It was perhaps unnecessarily formalistic for the Home Office to do so during the three and a half week period after it had given its formal undertaking on 15th July 2010 that such an EEA residence card would be issued to Ms C, given that from that point onwards the restrictions no longer served any practical immigration control purpose. However, although it had refused Ms C's claim to asylum on 28th May 2010, and had consequently served on her a formal refusal of leave to enter, it had already confirmed by letter dated 15th June 2010 that Ms C would not be required to leave the United Kingdom pending the final outcome of her application for an EEA residence card. So the Home Office's insistence upon this minor formality, even if (quite understandably) irritating to Mr B and Ms C, was of little or no practical consequence to them. It cannot, in any event, give rise to a valid claim for breach of statutory duty.
Misfeasance in Public Office
- The second way in which Mr B put the Claimants' case was this. Mr B submitted that that the evidence demonstrated that Mr Iling's actions, particularly in the period following the giving by Mr Walker of the undertaking to Upper Tribunal Judge Moulden, were motivated by a combination of pique and spite, and that Mr Iling's conduct (aided and abetted by his manager, Mr McGirr) therefore amounted to the tort of misfeasance in public office.
- In Three Rivers DC v Governor and Company of the Bank of England (No 3) Lord Steyn defined the two different forms of liability for misfeasance in public office. The first is targeted malice by a public officer; conduct specifically intended to injure a person or persons. The second is where a public officer acts, knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. In Lord Millett's opinion these are merely different ways in which the necessary element of intention is established. The state of mind to be proved against the defendant differs somewhat in the two cases. Common to both forms, however, is the requirement of proving that the misfeasance in question has caused damage and that the public officer was at least reckless whether such damage would be caused or not.
- In relation to the period prior to 15th July 2010, Mr B has not been able to point to any conduct on the part of the Home Office or its officials which, in my judgment, could come close to qualifying as misfeasance. There is simply no evidence that anyone in the Home Office in this period had the necessary intention to injure either of the Claimants, or had any knowledge that they had no power to act in the way which they did.
- Mr B made a large number of detailed criticisms of the way in which the Home Office dealt with Ms C's application. However, in cases such as this, the common-law imposes no duty of care on the Home Office in exercising its statutory functions. One reason for that is that practically everything that the Home Office does in this connection is dictated by policy. There are also resource implications which were not explored in the evidence before me. There is therefore no certain legal yardstick by which to judge the Home Office's performance.
- Even so, the Home Office's conduct in
128.1. Failing correctly to address the Certificate of Application letter dated 17th April 2008 which it sent to C2;
128.2. Failing to send a further copy of that letter and/or of its subsequent letter dated 17th February 2009 upon being informed on 2nd April 2009 that neither letter had in fact been received;
128.3. Deciding Ms C's application on the erroneous basis (a) that those letters had been received, when the Home Office's own records showed that they had not, and (b) that Ms C had therefore failed to provide any sufficient evidence of her durable relationship with Mr B, when sufficient evidence had in fact been provided, but had not found its way onto the file; and
128.4. Taking a total of 19 months, from 26th March 2008 until 11th November 2009, to deal with Ms C's application, even on that erroneous basis;
cannot sensibly be justified by any considerations of policy or by the need to allocate scarce resources (and Mr Atwal did not attempt to do so on the Home Office's behalf). In these respects, the way in which the Home Office dealt with Ms C's application can, in my judgment, properly be criticised by the Claimants as having fallen short of the standard of performance which they were reasonably entitled to expect from a department of Her Majesty's Government.
- However, these are all matters of simple (if regrettable) maladministration. Mere delay or the making in good faith of mistakes, or the taking in good faith but on an erroneous or incomplete factual basis of decisions adverse to the Claimant, cannot, of themselves, constitute misfeasance.
- Regrettably, the conduct of Mr Iling and his superiors in the period following 15th July 2010, when Mr Walker on behalf of the Home Office gave a formal undertaking to Upper Tribunal Judge Moulden that a residence card would be issued to Ms C, stands in a somewhat different category.
- By virtue of the Tribunals Courts and Enforcement Act 2007 s 3(5), the Upper Tribunal is a superior court of record: and, as Mr Iling and his superiors would have been well aware:
.. the Crown has a duty to obey the law as declared by the Courts. .. In ordinary circumstances ministers of the Crown and government departments invariably scrupulously observe decisions of the courts. Because of this, it is normally unnecessary for the courts to make an executory order against a minister or a government department since they will comply with any declaratory judgment made by the courts ..
- A formal undertaking given to a court by an advocate acting for the Crown (as in the leading case of M v Home Office) binds the Crown every bit as much as an order of that court. It was therefore the duty of Mr Iling and the other officials at the Home Office with responsibility for Ms C's case to perform the undertaking which Mr Walker had given, unless and until that undertaking was set aside or the Home Office was released from its performance by the Upper Tribunal.
- No date for performance was specified in the undertaking. However, it was plainly implicit that the promised residence card would be issued promptly, taking account of the inevitable "purely administrative delay" to which Mr Iling referred in his email dated 16th July 2010. Having regard to the period which had already elapsed since Ms C first made her application in April 2008 there was, in my judgment, no justification for Mr Iling to insist (as he did) upon waiting until the Upper Tribunal decision was formally promulgated on 27th July 2010 before taking steps to implement the undertaking. This was, after all, an undertaking which the Home Office itself had given. There can have been no uncertainty about its terms. The fact that the undertaking had been given had already been noted by Mr Walker on the Home Office file on 16th July 2010.
- Making every allowance that I can for inevitable administrative delays, it seems to me that the Home Office ought to have honoured its undertaking, and should have issued Ms C with her residence card, by no later than the end of August 2010. Neither in evidence nor in argument has the Home Office put forward any adequate reason for why it did not do so.
- It is right, of course, that, although the Upper Tribunal is a superior court of record, it is (unlike the High Court) not a court of unlimited jurisdiction. An order made in excess of its jurisdiction would therefore not be binding. However, the operative matter in the present case was an undertaking, voluntarily given by the Home Office, not the order of the Upper Tribunal which recorded it. Disputes over the extent of the Upper Tribunal's jurisdiction to entertain the appeal in which the undertaking was given are therefore irrelevant. To seek (as Mr Iling and Mr McGirr did) to go behind such a formal undertaking by trying to use what Mr McGirr himself frankly described at the time as "a sneaky way of approaching the case", was in my judgment unworthy of a senior employee of the Crown.
- As Mr Iling and Mr McGirr should have realised, there was no public interest in the Home Office using an unmeritorious technical argument to try to have Ms C's appeal re-opened, simply in order that Mr Iling's contrary view as to the correct disposal of Ms C's application should be substituted for the favourable final decision which Mr Walker had already formally conveyed both to Ms C herself and to the Upper Tribunal. No point of precedent or legal principle was involved.
- By contrast, there were a number of clear public interest considerations, which Mr Iling and Mr McGirr should have recognised, all of which firmly pointed in the opposite direction. First of all, there was the very strong public interest in the "scrupulous observance" by government departments of the undertakings given on their behalf to Her Majesty's courts. Secondly, there was the public interest in upholding the finality of settlements of litigation.
- Thirdly (and by no means least amongst these considerations), there was the public interest in the Home Office keeping, and being seen to keep, its word. As discussed below, Mr Walker's undertaking was a promise given to the Upper Tribunal, not to Mr B and Ms C personally. Nevertheless, Mr B and Ms C were legitimately entitled to expect (and did expect) that it would be honoured: and, as McMullin V-P said in Chu Piu-wing v Attorney-General
.. there is a clear public interest to be observed in holding officials of the state to promises made by them in full understanding of what is entailed by the bargain ..
- Fourthly, there was the public interest in avoiding further unnecessary delay to an application which, by the time that Mr Walker gave the undertaking, had been outstanding for more than 2 years. Neither Mr Iling, nor Mr McGirr, seems to have given any thought whatsoever to the effect on Mr B, Ms C, and their young daughter, D, of a further protracted delay. It is plain from the documents which I have seen that Ms C's case was not thought of as in any way urgent until this claim for damages was started in the Epsom County Court, at which point the Treasury Solicitor sensibly pointed out that further delay might increase the amount of the claim.
- As for what motivated Mr Iling and Mr McGirr to act in this way, there is considerable force in Mr B's submission that Mr Iling's actions and the tone of Mr Iling's contemporary notes and correspondence all betray an entirely unprofessional degree of irritation and pique that his own views had not prevailed. I have already noted that Mr Iling appears to adopted an inappropriately simplistic and adversarial approach to his task. Moreover, in his evidence before me, Mr Iling's answers demonstrated no empathy for, and no understanding of, the real hurt and financial loss which his actions were likely to have caused Ms C and Mr B. He appeared to regard Ms C's case as a purely intellectual problem, and not – as it plainly was – something involving the lives of real people with real human feelings.
- Nevertheless, having heard Mr Iling give evidence and be cross-examined by Mr B (and, to a limited extent, by me on Ms C's behalf), I am satisfied that his actions were not specifically intended, consciously or unconsciously, to injure Mr B or Ms C. I am also satisfied (having tested his evidence against the objective facts and documents, and having regard to his motives, and to the overall probabilities) that he in fact believed, not only that he had the power to act as he did, but also that he was under a public duty to do so.
- Mr Iling was, in my judgment, mistaken in both of these views. However, the holding of mistaken views is not, of itself, evidence of malice: and what Mr Iling actually did at the material time was entirely consistent with the intention which I have found that he had, which was to perform his public duty, as he (misguidedly) saw it. He sought advice from his superiors and thereafter from the Specialist Appeal Team as to whether his views could still be put into effect, and then acted (albeit without any enthusiasm or haste) in accordance with the negative advice which he received.
- It follows that the essential mental element of the tort of misfeasance in public office is not made out in this case, even in relation to the period after 15th July 2010.
Breach of Undertaking
- The third way in which Mr B put the Claimants' case was as a claim for damages for breach of the undertaking given to the Upper Tribunal. In support of this claim, Mr B relied upon the line of cases in which the Courts have enforced professional undertakings given by solicitors by requiring the solicitor in breach of his undertaking to pay compensation. Mr B submitted that Mr Walker, as an advocate appearing before the Upper Tribunal, was subject to the same disciplinary jurisdiction of the High Court as a solicitor, and that the High Court could therefore order the Home Office, as Mr Walker's employer, to pay compensation for breach of his undertaking.
- This claim, also, is misconceived in law. This undertaking was given to the Upper Tribunal, not to the High Court. It was therefore for the Upper Tribunal, not the High Court, to take whatever steps were necessary to enforce it. In that connection, the Tribunals Courts and Enforcement Act 2007 s 25 gives the Upper Tribunal the same powers, rights, privileges and authority as the High Court in relation to "all .. matters incidental to the Upper Tribunal's functions".
- The High Court does indeed have an inherent disciplinary jurisdiction over solicitors, in their capacity as officers of the High Court. However, that does not give the High Court any equivalent jurisdiction to discipline advocates (such as Mr Walker) who are not solicitors in matters not relating to proceedings before the High Court. A fortiori, it does not give the High Court any jurisdiction to enforce as a matter of discipline undertakings that such advocates have given to another, different, superior court of record.
- In any event, the power of the High Court to order solicitors (and other officers of the Court) to pay compensation for breach of their professional undertakings is limited to cases in which the solicitor concerned has expressly or impliedly undertaken personal liability. In the present case, the undertaking which Mr Walker gave to Upper Tribunal Judge Moulden was given on behalf of Mr Walker's employer, the Crown (acting by the Home Office). Mr Walker undertook no personal responsibility for the performance of that undertaking.
- As for the position of the Home Office, the general position where an undertaking is given by a litigant to a court is that:
.. The only sanction for breach of an undertaking would be the imprisonment of the culprit or sequestration of his assets or a fine on the ground of his contempt of court. An undertaking given to the court, unless the circumstances are such that it has some collateral contractual operation between the parties concerned, confers no personal right or remedy upon any other party. The giver of the undertaking assumes thereby an obligation to the court but to nobody else ..
- It would, in my judgment, be artificial (and, in the context of the exercise by a government department of a statutory discretion, wrong in principle) to construe the undertaking which Mr Walker gave to the Upper Tribunal as amounting in some way to a contractual promise given to Ms C in return for her agreement to withdraw her appeal.
Article 8 of the European Convention on Human Rights
- The final way in which Mr B has put the Claimants' case is as a claim for breach of the Claimants' right under Article 8 of the European Convention on Human Rights to respect for their private and family life. In substance, he submits that the Home Office's failure to provide Ms C with the EEA residence card to which she was entitled has impoverished their family, by preventing Ms C from working lawfully in the UK to support the family, has therefore delayed Mr B in fulfilling his plan to qualify as a solicitor, and has put their family life on "on hold" for more than 2 years.
- Article 8 of the Convention provides that:
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, or for the protection of the rights and freedoms of others.'
- It is well established that art 8, although a qualified right, also imposes positive obligations on the state, requiring the state not just to refrain from interference with an individual's art 8 rights, but to take steps to provide for effective respect for private and family life. Thus in Glaser v UK, the European Court of Human Rights held that:
.. The essential object of art 8 is to protect the individual against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective "respect" for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting rights and the implementation, where appropriate, of specific steps . . . In both the negative and United Kingdom positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the state's margin of appreciation
- However, to the extent that Article 8 does impose such positive obligations, they are not absolute. That appears from the "valuable" and helpful decision of the Court of Appeal in the conjoined cases of Anufrijeva v Southwark London BC, R (on the application of N) v Secretary of State for the Home Dept, and R (on the application of M) v Secretary of State for the Home Dept. In those cases, the claimants were asylum seekers who claimed damages under s 8 of the 1998 Act for breaches of their art 8 rights, on the grounds, variously, that the council had failed to discharge their statutory duty to provide them with accommodation that met the special needs of a family member, substantially impairing the quality of their family life; or, in other cases, that maladministration and lack of adequate financial support in the handling of their asylum claims had infringed their rights to respect for private and family life.
- Giving the judgment of the court upholding the dismissal of the claimants' claim, Lord Woolf CJ noted the link between the right to private life and the right to family life, observing that 'If members of a family are prevented from sharing family life together, art 8(1) is likely to be infringed'. He also noted the existence of positive obligations upon a state under art 8 and Glaser v UK, and the 'wide variety of situations [recognised by the European Court of Human Rights] in which states are under a positive obligation to introduce systems to preserve respect for family life'.
- However, Lord Woolf then went on to consider the very limited circumstances in which maladministration could of itself constitute a breach of Article 8. In a passage which seems to me to be directly relevant to the facts of the present case, he observed that:
 In so far as art 8 imposes positive obligations, these are not absolute. Before inaction can amount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant's private and family life were at risk: see the approach of the European Court of Human Rights to the positive obligation in relation to art 2 in Osman v UK and the discussion of Silber J in R (on the application of N) v Secretary of State for the Home Dept. Where the domestic law of a state imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the element of culpability necessary to establish a breach of art 8, provided that the impact on private or family life is sufficiently serious and was foreseeable.
 Where the complaint is that there has been culpable delay in the administrative processes necessary to determine and to give effect to an art 8 right, the approach of both the Strasbourg court and the Commission has been not to find an infringement of art 8 unless substantial prejudice has been caused to the applicant .. in Askar v UK App no 26373/95 the Commission held inadmissible a complaint of substantial delay in granting permission for the family of a refugee to join him in this country, observing:
'The commission recalls that delay in proceedings concerning matters of "family life" may raise issues under art 8 of the convention. In the case of H v UK, the court found a violation of art 8 in respect of proceedings concerning the mother's access to her child which lasted two years and seven months. However, the court had regard in reaching that conclusion that the proceedings concerned a fundamental element of family life (whether a mother would be able to see her child again) and that they had a quality of irreversibility, lying within an area in which delay might lead to a de facto determination of the matter, whereas an effective respect for the mother's family life required that the question be determined solely in the light of all relevant considerations and not by mere effluxion of time.'
.. The Commission continued:
'The commission finds that the present case is not comparable. The subject-matter of the proceedings concerns the granting of permission to enter the United Kingdom for members of the applicant's family, whom the applicant had not seen for at least six years and with some of whom the nature of his ties has not been specified beyond the fact that, pursuant to Somali tradition, the applicant has on the death of his father become head of the extended family group. Further, it is not apparent that the delay in the proceedings has any prejudicial effect on their eventual determination or that the effect of the passage of time is such as to prevent the proper and fair examination of the merits of the case.'
 We consider that there is sound sense in this approach at Strasbourg, particularly in cases where what is in issue is the grant of some form of welfare support. The Strasbourg court has rightly emphasised the need to have regard to resources when considering the obligations imposed on a state by art 8. The demands on resources would be significantly increased if states were to be faced with claims for breaches of art 8 simply on the ground of administrative delays. Maladministration of the type that we are considering will only infringe art 8 where the consequence is serious.
 .. in considering whether the threshold of art 8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for art 8 rights, the more glaring the deficiency in the behaviour of the public authority, the easier it will be to establish the necessary want of respect. Isolated acts of even significant carelessness are unlikely to suffice.
- Having regard to these principles, the respects in which I have found that the Home Office's conduct (including its delay) in relation to Ms C's application can properly be criticised did not, either individually or collectively, amount in my judgment to an infringement of the Claimants' rights under Article 8.
- Neither the acts of carelessness to which I have drawn attention, nor the inordinate and inexcusable delay in dealing with Ms C's application, had any prejudicial effect on the final result. Ms C was, in the event, granted the residence card for which she had applied.
- More importantly, Mr B, Ms C and D were all permitted to live together, and did in fact live together, as a family in the United Kingdom throughout the whole of the relevant period. The delay which the actions of the Home Office caused to the plans of Mr B and Ms C for Ms C to work so that Mr B could study for his professional qualification was undoubtedly upsetting and disruptive. However, it was temporary, not irreversible, and did not severely impact on their fundamental right to live together as a family.
Loss and Damage
- For the reasons stated above, I have come to the conclusion that the Claimants have established no arguable cause of action in law under which they can recover compensation from the Home Office for any loss that the Home Office's conduct has caused to them.
- Nevertheless, in case this action should go further, and a higher court should take the view that one or more of my conclusions thus far is wrong, it is appropriate that I should make findings as to the losses that the matters complained of against the Home Office have caused to Ms C and Mr B.
- The Claimants have submitted a Schedule of Loss. In this, Mr B claims damages totalling £44,700, consisting of:
- £18,000 in respect of the Loan which he took out to pay for his LPC course
- £6,700 in respect of the amount which he still owes for course fees to BPP; and
Ms C claims a total of £27,228 as loss of earnings for 136 weeks at £200 per week. The Claimants also jointly claim rent arrears of £3,540 and eviction costs of £500. Their total claim therefore amounts to £75,968.
- £20,000 in respect of loss of earnings for 2010-2011.
In relation to Ms C's claims for loss of earnings, Mr B's evidence was that he and Ms C had planned that, once Ms C had received her residence card "she would then work part time as to cover essential expenditure". I was also shown a letter dated 20th May 2010 from the management of Spaghetti House Restaurant in Knightsbridge, to the effect that Ms C had applied to work for them as a member of the kitchen staff, and would have been offered a post at £320-£350 per week (gross) for a 48-hour week plus overtime, had she been able to produce evidence of her entitlement to work in the UK.
This evidence of an application from Ms C to work a 48-week does not entirely square with Mr B's evidence that she intended to work only part-time. Nor is it probable that the mother of a very young child like D would choose to work a 48-hour week, unless she had to. However, it does not seem to me to be unrealistic that Ms C could, and would if she had lawfully been able to do so, have found employment which would have brought her in about £200 per week net, even after taking into account any additional childcare costs. Mr Atwal, for the Home Office, realistically accepted that this was so.
The period of time during which Ms C would have earned this sum was, however, strongly in dispute. The claim put forward on Ms C's behalf for a total of 136 weeks' loss of earnings encompasses the entire period from the date of her application to the date that it was granted. That, in my judgment, is unrealistic.
First of all, there would inevitably have been an administrative delay while Ms C's application was processed, even had the Home Office acted with all due expedition. Doing the best that I can on a very rough and ready basis, it seems to me that that must necessarily reduce Ms C's maximum period of claim by about 6 months or 26 weeks.
Secondly, Ms C and D also spent substantial periods of time in Bolivia at the turn of each year. Some of this time might have been covered by holiday pay: but on balance, I find that it is unlikely that the kind of jobs which Ms C would have taken would have provided holiday pay to cover any significant amount of this time in addition to any holiday time that she spent with Mr B. It seems to me to be much more likely that Ms C would have ended one job immediately prior to the holiday, and looked for another on her return. On this basis, I would therefore reduce her maximum claim by a further 16 weeks in total.
These two factors, in my judgment reduce Ms C's maximum claim for loss of earnings to 94 weeks at £200 per week, making (on a very rough and ready basis) a total of £18,800.
Turning to Mr B's claims, it seems to me that these to a large extent involve double counting, once Ms C's claim is taken into account. Once Ms C has been compensated for her provable loss of earnings, then the loss to the household budget has been made good. Mr B can then only properly claim to be compensated for any additional expenditure which he would not otherwise have incurred, and which would not have been met from Ms C's contribution to the household budget.
For example, there would have been no arrears of rent had Ms C's income been there to pay them. That claim therefore duplicates Ms C's claim for loss of earnings, as does a part of Mr B's claim to be re-imbursed for his LPC loan (which was used in part to pay for rent and other household expenditure, which would otherwise have been met from Ms C's income).
However, the more substantial objection to Mr B's claims for compensation in relation to his expenditure on his LPC, is that his evidence before me did not establish to my satisfaction that any blameworthy conduct by the Home Office was the probable cause of his failure successfully to complete the course.
In his oral evidence to me, Mr B said that he was due to pay the second instalment of his fees in February or March 2010, but could not do because of the lack of income coming in from Ms C, and so was prevented from attending lectures or taking his examinations. However, in paragraph 20(c) of the Claimants' Reply (which Mr B signed on behalf of the Claimants) Mr B's need to postpone his spring and summer 2010 examinations was attributed to the imposition upon Ms C of reporting requirements: and an email dated 20th December 2010 from BPP to Mr B about the outstanding fees records that he was "due to be suspended on 7th January 2011 as we have not received any payments since 2009".
The evidence relating to this aspect of the matter was not wholly satisfactory. However, doing the best that I can, I am not persuaded that there was in fact any formal obstacle to Mr B completing his LPC course, and I reject Mr B's evidence on the point as inconsistent with BPP's email dated 20th December 2010. It seems to me to be more probable that Mr B simply allowed himself to become distracted from his studies by his worries over Ms's C's immigration position, following the refusal of her application in November 2009.
In that connection, it is right that I should note that Mr B's written communications to the Home Office from 7th November 2009 onwards started to include lengthy and discursive statements of Mr B's (in my judgment, erroneous) view of the position under European law. The preparation of these not always constructive or helpful missives must have taken considerable time and effort, which Mr B might otherwise have been able to devote to his studies.
Mr B has provided no details of the claim for "eviction costs" of £500. There was oral and documentary evidence demonstrating that Mr B and Ms C had to leave their flat in February 2011 because they were in arrears with the rent. Mr B also gave evidence that he had to "give away a dinner table, four chairs, beds, chest of drawers, utensils, my daughter's toys, lamps, and office desk, as we had no storage big enough for that". However, in the absence of further details of value, it is impossible for me to make any award under this head.
It follows that, if I had found that Ms C had a good claim against the Home Office for breach of statutory duty or for breach of her Article 8 rights, I would have awarded her a total of £18,800 by way of compensation in respect of her loss of earnings. Applying the principles in Anufrijeva, I would as a matter of discretion have made no further award for any non-monetary injury that she might have suffered arising from any infringement of her Article 8 rights, as no further award is necessary to afford her "just satisfaction".
Alternatively, had I found that, in one way or another, Ms C was entitled to damages but only in relation to the Home Office's delay in implementing its undertaking, I would have awarded her the lesser sum of £1,800 (ie in respect of the 9 weeks from 1st September 2010 to 5th November 2010 at £200 per week) by way of compensation for her loss of earnings during the relevant period
It also follows that I would have made no separate award of damages to Mr B, even had I concluded that he had a good cause or causes of action against the Home Office.
I have found that the Home Office's conduct (including its prolonged delay) in relation to Ms C's application can properly be criticised in a number of respects. In particular, the Home Office's failure promptly to implement the undertaking which it gave to Upper Tribunal Judge Moulding was, in my judgment, inexcusable.
It therefore gives me no satisfaction to be obliged to hold that I can award Ms C and Mr B no remedy whatsoever in law for what has happened to them. However, the English common law knows no remedy for maladministration falling short of misfeasance in public office. As Sedley LJ observed in Home Office v Mohammed
.. 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 ..
If any remedy at all is available to Ms C and Mr B, they must seek it, after first formally complaining to the Home Office itself, by submitting a complaint through their Member of Parliament to the Parliamentary Ombudsman. However, I should not be taken as encouraging them to take any such action, nor as predicting in any way the likely result.
For these reasons, I dismiss this action.
Note 1 In practice, an EEA residence card is not always a card. It often takes the form of an endorsement in the holder’s passport (which is sometimes referred to as a 'vignette'). Alternatively, it may sometimes be a separate card or document called an 'immigration status document'. [Back]
Note 2 See paragraph 55 below. [Back]
Note 3 OJ 2010 C83/47. [Back]
Note 4 See paragraphs 58 to 69 below. [Back]
Note 5 SI 2006 No 1003. See paragraphs 70 to 79 below. [Back]
Note 6 See, for instance Grzelczyk v Centre Public d’Aide Sociale d’Ottignies Louvain la Neuve (Case C-184/99)  ECR I-6193 at ; Baumbast v Secretary of State for the Home Department (Case C-413/99)  ICR 1347 at ; Garcia Avello v Belgium (Case C-148/02)  1 CMLR 1 at ; Chen and Zhu v Secretary of State for the Home Department (Case C-200/02)  QB 325 at ; Rottmann v Freistaat Bayern (Case C-135/08)  3 CMLR 2 at ; and Ruiz Zambrano v Office national de l’emploi (Case no C-34/09)  2 CMLR 46 at . [Back]
Note 7 See the Commission’s EU Citizenship Report 2010, COM (2010) 603 final, paragraph 1. [Back]
Note 8 See Baumbast (supra) at ; Chen (supra) at . [Back]
Note 9 The rights inherent in EU citizenship are further enshrined in the Charter of Fundamental Rights of the EU: see Chapter V “Citizens’ Rights”. However, neither side has placed any reliance before me on any specific provision of the Charter, and I therefore do not consider it further. [Back]
Note 10 See Baumbast (supra) at ; Chen (supra) at . [Back]
Note 11 See Baumbast (supra) at [84 and ; Chen (supra) at . [Back]
Note 12 Set out in paragraph 64 below. [Back]
Note 13 Article 7(3) of the Directive provides that “For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances: (a) he/she is temporarily unable to work as the result of an illness or accident; (b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office; (c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months; (d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.” [Back]
Note 14 Which provides that “The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality”.. [Back]
Note 15 Defined in Regulation 6(4) to mean “a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged”. [Back]
Note 16 Defined in Regulation 4(1)(a) to mean “a worker within the meaning of Article 39 of the Treaty establishing the European Community [now Article 45 of the TFEU]”. [Back]
Note 17 Defined in Regulation 4(1)(b) to mean “a person who establishes himself in order to pursue activity as a self-employed person in accordance with Article 43 of the Treaty establishing the European Community [now Article 49 of the TFEU]”. [Back]
Note 18 Defined in Regulation 4(1)(c) to mean “a person who has (i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and (ii) comprehensive sickness insurance cover in the United Kingdom”. [Back]
Note 19 Defined in Regulation 4(1)(c) to mean “a person who (i) is enrolled at a private or public establishment, included on the Department for Education and Skills' Register of Education and Training Providers or financed from public funds, for the principal purpose of following a course of study, including vocational training; (ii) has comprehensive sickness insurance cover in the United Kingdom; and (iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence”. [Back]
Note 20 With effect from 2nd June 2011(ie, after the events with which the present case is concerned), a new Regulation 4(4) was substituted by the Immigration (European Economic Area) (Amendment) Regulations 2001, SI 2011 No 1247. [Back]
Note 21 Emphasis added. [Back]
Note 22 Emphasis added. [Back]
Note 23 R v Secretary of State for the Home department, ex parte Abdullah  EWHC 1771 (Admin) at , per Blair J. The Court of Appeal dismissed an appeal from this decision, without consideration of the merits:  EWCA Civ 250. [Back]
Note 24 Supra. [Back]
Note 25 Supra. [Back]
Note 26 London Borough of Harrow v Ibrahim (Case C-310/08)  2 CMLR 51. [Back]
Note 27 Supra, at  [Back]
Note 28 Supra, at  [Back]
Note 29 See Article 3(2), which is set out in paragraph 67 above. [Back]
Note 30 Chen, as regard Zhu’s right of residence in Ireland;Zambrano. [Back]
Note 31 Supra, at . [Back]
Note 32 Baumbast;Chen, as regard Zhu’s right to come to the UK to live; Ibrahim. [Back]
Note 33 See to similar effect Maria Teixeira v London Borough of Lambeth and Secretary of State for the Home Department (Case C-480/08), where the focus was on what was necessary in order to give effect to the child’s right to pursue his/her education in accordance with Article 12 of Regulation No 1612/68. [Back]
Note 34 Or was exercising some other relevant right, such as the right to pursue her education. [Back]
Note 35 See Chen (supra) at  to . Mr B submitted that the decisions of the Court of Appeal in the cases of Pedro v Secretary of State for Work and Pensions  EWCA Civ 1358 and SM (India) v Entry Clearance Officer (Mumbai); OQ (India) and another v Entry Clearance Officer (Mumbai)  EWCA Civ 1426 show that, on this point, Chen was wrongly decided. Mr B made this submission in the course of his closing submissions, and was not able to supply me at the time with copies of the reports. Since the conclusion of the hearing, I have read and carefully considered both of these cases. In my judgment, neither of them casts any doubt whatsoever on the correctness of this aspect of the decision in Chen (and the judges who decided these cases do not suggest anywhere in any of their judgments that they are seeking to do so). Chen is, in any event, a decision of the Court of Justice of the European Communities and so, with regard to matters of European law, is binding upon the Court of Appeal. [Back]
Note 36 In the past, the family courts in the United Kingdom often applied a working rule that, when dealing with young children, the right place for them to be is with their mother unless there is some substantial reason why they should not be: see eg M v M (custody of children) (1982) 4 FLR 603 at 609. The modern position is that there is no presumption in favour of the mother: but, as Lord Donaldson MR observed in Re S (a minor) (custody)  FCR 155 “the whole question of whether there is a presumption in favour of small children, in particular, small female children, being cared for by their mothers is difficult and may be a matter [of] semantics as much as anything else. As Butler-Sloss, LJ has said, it is natural for young children to be with their mothers. Given that situation, if you take enough cases, you will almost certainly find that, in the majority of them, it is in the interests of the child that he or she should be with the mother. Whether or not that amounts to a presumption, I know not”. An unbroken relationship between a mother and her baby or toddler will usually be difficult to displace: see Re S (supra) at 390, CA, per Butler-Sloss LJ. See also Re A (a minor) (custody)  FCR 569, CA.; Re W (residence)  3 FCR 274; and Brixey v Lynas  1 FCR 220. [Back]
Note 37 Brown v The Secretary of State for Scotland (Case 197/86)  ECR 3161 at 21. [Back]
Note 38 Which is set out in paragraph 71 above. [Back]
Note 39 See eg Kempf v Staatssecrestaris van Justitie, re part-time music teacher (Case 139/85)  ECR 1741. [Back]
Note 40 Entry on Home Office computer record dated 7th July 2010 written by Mr Iling. [Back]
Note 41 EU Citizenship Report 2010, COM(2010) 603 final, paragraph 2.3.1 [Back]
Note 42 Not the least of which is the real practical difficulty which the Home Office would otherwise face in discriminating between those couples whose (necessarily) short relationship is nevertheless a “durable” one, even though they have not as yet made the long-term commitment to each other involved in a marriage or civil partnership, and those whose relationship is not yet so “durable”. [Back]
Note 43 (Cases C-6/90 and 9/90)  2 CMLR 66. [Back]
Note 44  1AC 524. [Back]
Note 45 Set out in paragraph 66 above. [Back]
Note 46 Set out in paragraph 67 above. [Back]
Note 47 See paragraph 79 above. [Back]
Note 48 “[Miss Mountfield submitted that] other family members, do not have the derived rights provided to art 2(2) family members. There is merely a duty on the host member State by national legislation to facilitate entry and residence and a requirement to justify denial of entry or residence .. .[My conclusion is that] close family members of Union citizens can move freely with Union citizens who might otherwise be inhibited from exercising their rights of freedom of movement. On the other hand, Member States are merely obliged, as Miss Mountfield put it, to give open-minded consideration to those extended family members who have demonstrable need. Such an interpretation, as well as being in accordance with the language of the Citizens' Directive, is consistent with the approach of the European Court of Justice in Metock 84-9: Pedro v Secretary of State for Work and Pensions  EWCA Civ 1358 at  and , per Goldring LJ. [Back]
Note 49 Set out in paragraph 75 above. [Back]
Note 50 Set out in paragraph 77 above. [Back]
Note 51 See R v Secretary of State for the Home department, ex parte Abdullah (supra). Mr Iling’s view that no right of appeal was available to Ms C was, on the basis of this decision, wrong in law. [Back]
Note 52 See Factortame (supra) at 499; Haim v Kassenzahnarztliche Vereinigung Nordrhein Case (C-424/97)  ECR I-5123 at ; Köbler v Austria (Case C-224/01) at  [Back]
Note 53 Cf Bourgoin SA v Ministry of Agriculture, Fisheries and Foods  QB 716. [Back]
Note 54 Brasserie du Pecheur SA v Federal Republic of Germany; R v Secretary of State for Transport, ex p Factortame Ltd (No 4) (Joined cases C-46/93 and C-48/93)  QB 404; sub nom Brasserie du Pêcheur SA v Federal Republic of Germany; R v Secretary of State for Transport, ex p Factortame Ltd  ECR I-1029. [Back]
Note 55 Quoted in Test Claimants in the FII Group Litigation v Revenue and Customs Commissioners  EWCA Civ 103,  STC 1251, at . [Back]
Note 56  2 AC 1 at 191. [Back]
Note 57  2 AC 1 at 235. [Back]
Note 58 Watkins v Secretary of State for the Home Department and others  UKHL 17,  2 AC 395, at , per Lord Bingham of Cornhill. [Back]
Note 59 Home Office v Mohammed  EWCA Civ 351. [Back]
Note 60 Ibid, at . [Back]
Note 61 See paragraph 11 above. [Back]
Note 62 See paragraph 16 above. [Back]
Note 63 See paragraphs 19 and 23 above. [Back]
Note 64 See paragraphs 17, 19 and 23 above. [Back]
Note 65 It was the Home Office’s failure to get the decision right in the first place which gave rise to the need for an appeal. On one view, therefore, the Home Office might be said to be responsible for the whole of the delay from March 2008 until 5th November 2010, including the time taken in the appeals process. [Back]
Note 66 M v Home Office  1 AC 377 at 397, per Lord Woolf. [Back]
Note 67 In relation to such matters, the Upper Tribunal has the same powers as the High Court (see paragraph 145 below): and, in the High Court, the Court would usually regard itself as retaining a residual discretion in exceptional circumstances to release a party from an undertaking which he had given, even where that undertaking was recorded in a final order made by consent: see cases such as Miller v Score  1 WLR 1122;Eronat v Tabbah,  EWCA Civ 950; Placito v Slater  EWCA Civ 1863,  1 WLR 1605; and Warren v The Random House Group Ltd  EWCA Civ 834,  QB 600. However, it is very unlikely that the circumstances upon which Mr Iling sought to rely would have been regarded as sufficiently exceptional. [Back]
Note 68 See paragraph 35 above. [Back]
Note 69 See paragraph 36 above. [Back]
Note 70 R (on the application of Cart) v Upper Tribunal (Secretary of State for Justice and others, interested parties) (Public Law Project intervening); R (on the application of MR (Pakistan)) v Upper Tribunal (Secretary of State for the Home Department and another, interested parties) (Public Law Project intervening)  UKSC 28 at , per Lady Hale. [Back]
Note 71 See paragraph 44 above. [Back]
Note 72  HKLR 411 at 417-418: cited with approval by Lord Griffiths, with whom on this issue a majority of their Lordships agreed, in R v Horseferry Road Magistrates' Court, ex parte Bennett  1 AC 42 at 61. [Back]
Note 73 See paragraph 100 above. [Back]
Note 74 See The “Ocean Frost”  1 Lloyd’s Rep at 57, per Robert Goff LJ. [Back]
Note 75 See eg Clark v Lucas Solicitors LLP  2 All ER 955. [Back]
Note 76 Re Hudson, Hudson v Hudson  Ch 209 at 214, per Buckley J. [Back]
Note 77 Van Colle and another v Chief Constable of Hertfordshire Police  EWHC 360 (QB),  3 All ER 963 at , per Cox J. [Back]
Note 78  3 FCR 193 at 208-209 paragraph  [Back]
Note 79 R (on the application of TG) v Lambeth London Borough Council (Shelter intervening)  EWCA Civ 526 at , per Wilson LJ. [Back]
Note 80  EWCA Civ 1406,  QB 1124. [Back]
Note 81 At . [Back]
Note 82 At  and . [Back]
Note 83 I take this useful summary from Van Colle (supra) at . [Back]
Note 84 At  to  [Back]
Note 85 (1998) 5 BHRC 293. [Back]
Note 86  EWHC 207 (Admin) at –. [Back]
Note 87 (16 October 1995, unreported). [Back]
Note 88 See paragraphs 128 and 134 above. [Back]
Note 89 My emphasis. [Back]
Note 90 (Supra) at  and following. [Back]
Note 91  EWCA Civ 351 at  and . [Back]
Note 92 The Law Commission was provisionally in favour of the reform of this area of the law, so as to widen the causes of action and the monetary remedies available: see its Consultation Paper (No 187)Administrative Redress: Public Bodies and the Citizen. However, by the time of its eventual report in May 2010 (Law Commission 322), the project had foundered on the implacable opposition of Her Majesty’s Government to the proposed reforms. [Back]
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