ON APPEAL FROM THE COVENTRY COUNTY COURT
HIS HONOUR JUDGE OLIVER-JONES QC
Claim nos. 9CV01038 and 9CV01068
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE HOOPER
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Mr Richard Drabble QC and Mr David Lemer (instructed by Alsters Kelley) for the Respondents
Hearing dates: 9th and 10th March 2011
Crown Copyright ©
Lord Justice Sedley :
The article 8 case
56. In my judgment, the immigration legislation, and particularly the 1971 Act, is both a legislative and an administrative scheme for protecting, in appropriate cases, the right to respect for private and family life because it deals with the essence of private and family life, namely, the legal status of an individual and thus his social identity. If the legislative scheme is not operated competently so as to achieve its aim, namely the granting of 'settled status' in the UK if appropriate, then maladministration can amount to a breach of Article 8 rights. …..
A duty of care?
50. ….. It is clearly foreseeable that if asylum is refused then the applicant will be unable to obtain employment or welfare benefits; further, when a claimant is, as these claimants were, members of a very specific group and identified as being special by virtue of the relevant policy, there was, in my judgment such a relationship with the Defendant as to make it fair and reasonable for a duty of care to arise. The failure which lies at the heart of this case was the denial, by omission, to these claimants of precisely that which a special policy, designed solely for their benefit, was intended to provide, namely a settled status in the UK.
….. The process whereby the decision making body gathers information and comes to its decision cannot be the subject of an action in negligence. It suffices to rely on the absence of the required proximity. In gathering information, and taking it into account the Defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy. For them to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers. In conducting their inquiries, and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply. ……
1.16 The analysis of court-based remedies was divided between those available in judicial review and those available in private law. In private law, the primary focus was on negligence. However, we also considered the current operation of the torts of misfeasance in public office and breach of statutory duty.
1.17 In judicial review, we suggested that it is unjust that damages are available in situations covered by EU law and by the Human Rights Act 1998 but are seldom available in other situations solely covered by domestic law.
1.18 In private law, we suggested that the current system was untenable. The uncertain and unprincipled nature of negligence in relation to public bodies, coupled with the unpredictable expansion of liability over recent years, has led to a situation that serves neither claimants nor public bodies. Furthermore, recent developments in the tort of misfeasance in public office have rendered its continuance of limited value and inappropriate as a cause of action. Breach of statutory duty is not a suitable cause of action in relation to most forms of administrative wrong-doing.
1.19 In light of this, we argued in favour of the reform of court-based administrative redress in both public and private law. In developing the structure of potential reform, we drew heavily on a principle of modified corrective justice outlined in Appendix A of the consultation paper. The "modification" in "modified corrective justice" was intended as a principled recognition of the special position of public bodies, which attenuated the full force of corrective justice as it applies between private individuals.
1.20 We provisionally proposed the reform of court-based redress in both public and private law. This would have led to the creation of a specific regime for public bodies based around a series of individual elements. At the core of these individual elements was a requirement to show "serious fault" on the part of the public body, rather than merely – on the public side – illegality or – in tort – negligence.
1.21 Additionally, we suggested that damages should be available only if the statutory regime, within which the public body's decision was made, was objectively there to confer a benefit on the relevant class of individuals. The normal rules of causation would also act as a control mechanism for liability. However, an award of damages was to serve only as an ancillary remedy in judicial review, to be claimed alongside the prerogative remedies. In keeping with other remedies available in judicial review, it was suggested that damages should be discretionary.
1.22 In private law, we provisionally proposed placing certain activities – those which can be regarded as "truly public"- within a specialised statutory scheme. Within this scheme, the claimant would have had to satisfy the same requirements as the public law scheme in order to establish liability. The general effect of these reforms would have been to restrict liability in some areas and widen the potential for liability in others. Cases which did not satisfy the "truly public" test would have been determined under the normal rules of tort law.
1.2 This report brings to a close the state liability aspects of the Administrative Redress project.
1.3 This project was notable in that the key stakeholder – Government – was firmly opposed to our proposed reforms. This opposition was expressed both in the formal response and in discussions at both ministerial and official level. Government's formal response was a single document agreed across Government. This is extremely unusual, if not unique, in recent times.
1.4 Fundamental to our approach to this project was an acceptance that we needed to consider the extent to which any reforms might divert resources originally allocated for public purposes to individuals as compensation payments. Our approach sought to achieve the appropriate balance between the interests of those seeking redress and any effect this process may have on public bodies.
1.5 One of the ways in which we sought to address this issue was to seek to create a dataset outlining the current compensation position of public bodies. This would have been the first stage of a quantitative analysis of the effect that any reforms might have had. In the course of attempting this, we discovered that obtaining even basic figures for the current compensation position of public bodies proved impossible. We do not think there is any justification for this reporting gap. First, we suggest that such figures should be collected in order for public bodies to fulfil their duties of accountability and transparency. Secondly, in the specific context of this project, the lack of such figures made it extremely difficult to rebut the concerns of certain consultees – particularly Government – relating to the presumed effect of our proposals.
1.6 In light of this, we feel that it is impractical to attempt to pursue the reform of state liability any further at this time.
Lord Justice Thomas:
Lord Justice Hooper:
Note 3 Named, in a now customary misnomer, as the Secretary of State for the Home Department (a non-existent office): it should be the Home Office – see the list issued pursuant to the Crown Proceedings Act 1947, s.17.
[Back] Note 4 When the Home Secretary appealed to this court, the appeal was allowed by consent on the making of an ex gratia payment in the amount of the damages claimed. We rejected the suggestion that this made it impermissible or inappropriate to consider Keith J’s judgment. [Back] Note 5 Blanco, TC 8 février 1873, a personal injury claim against a public service. The decision established that state liability (which was blocked in the UK by state immunity from tort claims until the Crown Proceedings Act 1947) is governed by specific rules distinct from those of civil liability. It is from the Blanco decision that the jurisprudence of faute lourde has developed.
Note 3 Named, in a now customary misnomer, as the Secretary of State for the Home Department (a non-existent office): it should be the Home Office – see the list issued pursuant to the Crown Proceedings Act 1947, s.17. [Back]
Note 4 When the Home Secretary appealed to this court, the appeal was allowed by consent on the making of an ex gratia payment in the amount of the damages claimed. We rejected the suggestion that this made it impermissible or inappropriate to consider Keith J’s judgment. [Back]
Note 5 Blanco, TC 8 février 1873, a personal injury claim against a public service. The decision established that state liability (which was blocked in the UK by state immunity from tort claims until the Crown Proceedings Act 1947) is governed by specific rules distinct from those of civil liability. It is from the Blanco decision that the jurisprudence of faute lourde has developed. [Back]