HANS HUSSON v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2020)
 EWCA Civ 329
EUROPEAN UNION – NEGLIGENCE – DAMAGES – CIVIL PROCEDURE – IMMIGRATION – HUMAN RIGHTS
DAMAGES : DELAY : DISCRETION : DUTY OF CARE : HUMAN RIGHTS CLAIMS : JURISDICTION : RESIDENCE PERMITS : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
An individual who had been granted limited leave to remain in the UK was entitled to seek judicial review of the secretary of state’s two-year delay in sending him a biometric residence permit confirming his entitlement to work in the UK. He had established an arguable case that the secretary of state owed him a duty of care to issue the permit promptly, giving rise to a claim in damages for breach.
The appellant appealed against a refusal of the Upper Tribunal to permit him to apply for judicial review of the secretary of state’s delay in sending him a biometric residence permit confirming his entitlement to work in the UK.
The appellant was a Mauritian national who had been granted limited leave to remain and work in the UK. During court proceedings arising from the leave-to-remain application, the secretary of state had entered into a consent order whereby he agreed to reach an effective decision on the application within three months. That meant that the ultimate decision to grant indefinite leave to remain should have been followed by the prompt issue of a residence permit. However, there was a two-year delay before the permit was issued. The appellant claimed that he had suffered loss by reason of being been unable to work in the UK during the delay period, having no stamp on his passport evidencing his right to work. Within his claim for judicial review he raised the question of whether he was entitled to damages for breach of duty of care, breach of statutory duty and breach of ECHR art.8. The UT refused him permission to apply for judicial review.
The issues were whether (1) the UT lacked jurisdiction to award damages because no public law remedy was being sought; (2) the appellant had an arguable claim for damages for breach of art.8; (3) it was arguable that the secretary of state owed the appellant an actionable duty of care; (4) the UT had refused a discretionary remedy at the permission stage.
HELD: Jurisdiction to award damages – The UT had jurisdiction to award damages to the appellant. Its power to award damages was circumscribed by the Tribunals, Courts and Enforcement Act 2007 s.15(1), s.16(1) and s.16(6) and, for there to be an award of damages, the claimant had to be seeking a public law remedy (a mandatory order, a prohibiting order, a quashing order, a declaration or an injunction). The claimant was seeking declaratory relief in relation to the alleged unlawful delay in issuing the permit and, as the foundation for a damages claim, that relief was not academic (see paras 24-28 of judgment).
Article 8 – The appellant had an arguable case for judicial review on the basis of a breach of art.8. The consequences of the delay fell within the scope of art.8 and constituted an arguably sufficient interference with the rights it guaranteed. Without the permit or a stamp in his passport evidencing his right to work, the appellant had been unable to take up lawful employment in the UK. Although there was no direct authority establishing that a right to work was of itself protected by art.8, Strasbourg authority demonstrated that art.8 was arguably engaged where an individual was wholly or substantially deprived of the ability to work, R. (on the application of Atapattu) v Secretary of State for the Home Department  EWHC 1388 (Admin) applied. Damages could be awarded under the Human Rights Act 1998 s.8 where necessary to afford just satisfaction, Anufrijeva v Southwark LBC  EWCA Civ 1406 followed. Although the appellant had produced limited evidence of loss of employment and earnings, the secretary of state’s own policy documents made good that aspect of his case: given that no UK employer could lawfully have employed him, the inevitable inference was that he had been deprived of all available employment opportunities (paras 32, 35-41).
Actionable duty of care – When determining whether the law imposed a tortious duty of care in respect of a public authority’s exercise of its statutory powers or performance of its statutory duties, the court had to focus on the facts and the particular statutory background, Gorringe v Calderdale MBC  UKHL 15 followed. The statutory scheme under consideration in the instant case did not create a statutory cause of action that sounded in damages, so the appellant had to establish that the delay also constituted a recognised tort or breach of contract. A critical question was whether there had been any voluntary assumption of responsibility by the secretary of state, Rowley v Secretary of State for Work and Pensions  EWCA Civ 598 considered. Such an assumption of responsibility would arise where, but for the absence of consideration, there would be a contract; so, where there was a relationship equivalent to a contract, there would be a duty of care, Poole BC v GN  UKSC 25 followed, W v Home Office  2 WLUK 338 and Home Office v Mohammed  EWCA Civ 351 considered (paras 42-53). The appellant had an arguable case that the secretary of state owed him a duty of care. There was force in his argument that he was entitled to the prompt issue of a permit and it was foreseeable that a prolonged delay would prevent him obtaining employment in the UK. Although it was doubtful whether a duty of care could be derived from the secretary of state’s entry into the consent order and pledge to make an effective decision within three months, the threshold was merely arguability, and the law was complex and evolving (paras 54-64).
Refusal of discretionary remedy at permission stage – The UT had not refused to exercise a discretionary remedy at the permission stage. It had simply held that the appellant had not established a prima facie case to support a claim for damages (paras 65-66).
For the appellant: Russell Wilcox
For the respondent: Richard Evans
For the appellant: Dylan Conrad Kreolle Solicitors
For the respondent: Government Legal Department