Case No: B2/2010/2331
Neutral Citation Number: [2011] EWCA Civ 351
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COVENTRY COUNTY COURT
HIS HONOUR JUDGE OLIVER-JONES QC
Claim nos. 9CV01038 and 9CV01068
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/03/2011
Before :

LORD JUSTICE SEDLEY
LORD JUSTICE THOMAS
and
LORD JUSTICE HOOPER
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Between :

	HOME OFFICE	Appellant	
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	MOHAMMED & OTHERS	Respondents	
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(Transcript of the Handed Down Judgment of
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Mr James Eadie QC and Mr Jeremy Johnson (instructed by Treasury Solicitors) for the Appellant
Mr Richard Drabble QC and Mr David Lemer (instructed by Alsters Kelley) for the Respondents

Hearing dates: 9th and 10th March 2011  
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Judgment
Lord Justice Sedley : 
1.	The six respondents to this appeal are Iraqi Kurds who reached the United Kingdom between 1999 and 2001 and who were eventually found to be entitled to be granted indefinite leave to remain. None of them was, however, granted ILR until 2007, and the last of them was not granted it until 2009. In some cases this was because the applications had been put on hold pursuant to a priority policy which was subsequently held to be unlawful[1]. In the remainder it was because the Home Office failed to implement the appropriate ministerial policy[2]. In their claims for damages, all six respondents contend that but for these unlawful acts and omissions they would have been granted ILR a great deal sooner than they were.
2.	Their claims took the form of a county court action for damages. The predicate of each claim is that the defendant[3] is a public authority within the meaning of s.6 of the Human Rights Act 1998. Having set out the acts or omissions relied on, each pleading asserted claims under four separate heads: breach of statutory duty, negligence, breach of article 5 of the ECHR and breach of article 8. As pleaded, the damage under the last head is simply described as “reducing [the claimant’s] ability to develop family and private life ties in the United Kingdom”, together with unparticularised special damages for loss of earnings and benefits.
3.	The Home Secretary’s application to strike out the entirety of the pleadings as unsustainable, or for summary judgment on the ground that they had no realistic prospect of success, came before His Honour Judge Oliver-Jones QC in the Coventry County Court, sitting at Birmingham. In a carefully reasoned judgment he allowed the application in relation to breach of statutory duty and article 5, but held the claims in negligence and under article 8 to be capable of succeeding and so refused to strike them out or dismiss them. Against the latter holdings the Home Secretary, represented by James Eadie QC, appeals. There is no cross-appeal by the respondents, represented by Richard Drabble QC, against the former.
Time
4.	In the final paragraph of his written submission to this court Mr Eadie took the point that the Human Rights Act claims were brought outside the year set by s.7(5) of the Act, and that no application had been made under s.7(5)(b) for enlargement of time. In oral argument he made no mention of the point, notwithstanding that it was capable of affording a complete answer to the article 8 claims and might have been expected to be in the forefront of his case. We would have taken it that this was because the government wanted the point of substance decided; but, when asked, Mr Eadie indicated, albeit without developing the point, that he stood by it.
5.	The introduction of potentially dispositive points by way of afterthought is not especially helpful to the court. As it happens, the limitation point is answered in the pleaded reply in two ways. The principal reply is that the breach which is complained of was in each case an act which continued until the grant of ILR or the concession of the claim; the alternative reply is that it is equitable in the circumstances to enlarge time. It seems to me that the first of these propositions is correct. In measuring time from “the date on which the act complained of took place”, both the language and the purpose of s.7(5) are apt to include the last day of a continuing act. The claim forms were issued in March 2009, which was within the permitted year from the pleaded date for four of the claimants, but outside it for the remaining four. The latter appear therefore to be reliant on the power of enlargement. Since we are not in a position to evaluate their pleaded reasons for exercising the power, the point will have to be canvassed, if it is thought right to persist with it, on remission.
The article 8 case
6.	As to article 8, the judge said:
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. …..
7.	It is at the heart of Mr Drabble’s case that denial of ILR or delay in granting it had immediate and predictable effects. Since this aspect of the claims was barely particularised, we gave Mr Drabble leave at the close of argument to furnish particulars, with liberty to Mr Eadie to formulate a response as to the impact of the particulars on the issues before the court.
8.	The essence of the case now advanced is that “the consequence of the failure of the [Home Secretary] to administer the system lawfully in either category of case was … that the claimants wrongly did not have settled status” for a period of years. By this the claimants mean concretely that they had no right to work (albeit some were given discretionary permission to do so), no entitlement to mainstream welfare benefits, no possibility of travelling abroad (for example to see their families), and no means of opening a bank account or obtaining a driving licence, as well as postponement of the eventual goal of obtaining UK citizenship. In the S cases, where the decisions were unlawfully postponed, this loss occurred from the critical date of April 2002. The claimed consequences were the same in the AH cases, where it is alleged that the claimants were refused ILR for an unlawful reason when a proper application of policy would have resulted, as it finally did years later, in its being granted.
9.	The nature of the article 8 case is thus that the Home Office, by its omissions or its acts, has materially violated the right of each claimant to respect for his private life, and has done so in circumstances which deprive it of the answer under article 8(2) that it was acting in accordance with the law. With his customary candour Mr Eadie, while conceding none of these things, has now accepted that they raise a triable case under article 8.
10.	I agree. But in parting with this limb of the appeal, I wish to say a word about the case known by the name of the first of three appellants, Anufrijeva v Southwark LBC [2003] EWCA Civ 1406. Mr Eadie has placed reliance on the fact that even the second appellant, a Libyan refugee known as N, failed in his article 8 claim. He has pressed the case upon us as showing how steep a hill an article 8 claimant has to climb when relying on a positive obligation. It was, however, a decision on the facts; indeed many might well have taken a very different view of the treatment of N by the Home Office and whether N’s clinical depression was not in fact readily foreseeable. It should not therefore be regarded as being of any real assistance in determining what a claimant must show to establish an article 8 claim.
A duty of care?
11.	The judge also concluded that a duty of care could be found, if not within the existing law of negligence, then by a modest incremental extension of it. He said:
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. 
12.	Mr Eadie submits that neither the present law of negligence nor any acceptable increment in its ambit will accommodate the present claims. If I may attempt to paraphrase his analysis, it is broadly this. The statutory function in issue here is the allocation to the Home Secretary by s.4(1) of the Immigration Act 1971 of the power to give leave to remain in the United Kingdom. This being now conceded not to be the kind of case in which a statutory duty itself carries a civil cause of action for its breach, it is on principle highly unusual for the courts to graft a duty of care on to it. Barrett v Enfield BC [2001] 2 AC 550 and Phelps v Hillingdon BC [2001] 2 AC 619 are among the rare instances, but they find no analogy in the present claims, not least because what is in issue here is not a duty at all but a power.  While common law negligence can occur in the course of exercising a statutory duty or power (a gas meter reader lighting a cigarette, as was suggested in the course of argument, or an environmental health officer breaking the restaurant’s china), it cannot on principle occur in the actual discharge of the function and may well be inconsistent with or contra-indicated by the statutory scheme. Here the Home Secretary has public duties to perform, in the course of which she is required to act in accordance with the law. It is public law (including, I would interpose, the law of legitimate expectation, which today is the principal means by which policy is enforced or waived) which sets the remedies for breach – remedies which do not include damages. Save in particular circumstances unlike those we are concerned with, the common law has not recognised a concurrent duty of care outside or alongside the statutory framework, even if there is no other means of claiming damages. Nor, adopting the Caparo test, is it fair or just or reasonable to do so when other recourse is in fact available, in the present cases to the Parliamentary Ombudsman, who has power to recommend the payment of compensation.
13.	Although a considerable amount of authority was put before us, the following cases and materials seem to me sufficient, notwithstanding Mr Drabble’s resistance, to make good Mr Eadie’s case.
14.	As a general rule the proximity created by a statutory relationship does not by itself create a duty of care: Stovin v Wise [1996] AC 923; Gorringe v Calderdale MBC [2004] UKHL 15. Particular features of the relationship may do so (Phelps v Hillingdon LBC [2001] 2 AC 619), but Mr Drabble has not sought to draw a direct analogy between that decision and these claims. Rather he invites us to follow the decision of Keith J in R (Kanidagli) v Home Secretary [2004] EWHC 1585 (Admin)[4], a case in which the Home Office had duly admitted the wife of a refugee but had wrongly barred her from claiming benefits, with resultant losses which she could not retrieve except by way of damages. Keith J concluded that it was fair, just and reasonable that an administrative error of this kind, involving no judgment but simple administration and with a predictable financial effect for which there was no other remedy, should be regarded as arising out of a sufficiently proximate relationship to found a claim for damages. 
15.	Keith J distinguished the decision of this court in W v Home Office [1997] Imm AR 302 on the ground that it had been based on an exercise of administrative judgment. In my respectful opinion this was a distinction without a difference: W had been held in immigration detention because of a crass administrative mistake - it really could not be dignified as an error of judgment - about his ability to establish his country of origin. Yet this court held that no claim lay in negligence:
….. The process whereby the decision making body gathers information and comes to its decision cannot be the subject of an action in negligence. It suffices to rely on the absence of the required proximity. In gathering information, and taking it into account the Defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy. For them to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers. In conducting their inquiries, and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply. ……
16.	The reasoning which underlies W was more fully spelt out by Dyson LJ, as he then was, in Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598. The neglect asserted was the failure of the Child Support Agency to recover the maintenance on which the fourth claimant and her children depended. It was held that the agency owed its duties not to the claimants but to the state; that it had not assumed a responsibility recognised by the common  law; and that the statutory mechanisms for assessment and enforcement of maintenance contra-indicated any superadded liability.
17.	While the Home Office in dealing with asylum claims is, in broad terms, acting under statute, practically everything it does in the exercise of the large s.4(1) function is dictated by policy, whether in the form of immigration rules or of departmental policies or instructions. There is therefore no direct analogy in the decided cases we have looked at. But they have in my view one important theme and one background consideration each of which is relevant to what we have to decide.
18.	The theme is the availability of other, possibly equivalent, forms of redress. This is not a simple tick-box indicator. Its absence, however serious its consequences, may not be enough to establish a duty of care: see Jain v Trent Strategic Health Authority [2007] EWCA Civ 1186; upheld [2009] UKHL 4, where the want of any worthwhile protection against a health authority whose negligent use of statutory powers to close a care home, ruining its innocent proprietors, was held insufficient to create a correlative duty of care. But its presence, by analogy with a comprehensive statutory scheme such as was present in W, may well be sufficient, even assuming sufficient proximity, to make it less than fair, just and reasonable to add a common law liability in negligence. I will return to this below.
19.	The background consideration is the recent work of the Law Commission on the question of damages for public law wrongs and on the related question of redress through a statutory commissioner or ombudsman.
20.	The project on remedies against public bodies was initiated in March 2005 as part of the Commission’s ninth programme. Its October 2006 scoping paper, which settled on monetary remedies as the key potential reform, was followed in July 2008 by a consultation paper (no. 187), Administrative Redress: Public Bodies and the Citizen, which provoked a substantial body of academic and professional interest and responses. 
21.	The paper put redress into four categories: internal complaints and similar procedures; external redress, for instance inquiries; external adjudication by public sector ombudsmen; and public and private law judicial remedies. The last of these classes was considered to be in practice residual, but to raise considerable problems of principle. Summarising the consultation paper’s view in its eventual report (Law Comm. 322) in May 2010, the Commission said:
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.
22.	By the time of the 2010 report, this scheme had foundered. More precisely, it had been sent to the sea-bed by central government. For reasons which the report went on to describe in detail, it began thus:
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.
23.	Two things are worth saying about this débâcle in the context of the present case. One is that it is a troubling comment on the functioning of the separation of powers that the state’s independent law reform advisory body has had to abandon a project affecting the liability of government to governed principally because the control exercised by government over Parliament would frustrate any reform, however wise or necessary, which would make government’s life more difficult. 
24.	The other, more directly in point, is that, whatever the reason, a faute lourde system of state liability in damages for maladministration, of the kind that has worked well in France for more than a century[5], is not on the cards in the United Kingdom. Apart from the limited private law cause of action for misfeasance in public office and the statutory causes of action in EU law and under the Human Rights Act, there is today no cause of action against a public authority for harm done to individuals, even foreseeably, by unlawful acts of public administration. The common law cause of action in negligence coexists with this doctrine and may on occasion arise from acts done or omissions made in carrying out a public law function; but it may not impinge on the discharge of the function itself, however incompetently or negligently it is performed.
25.	As to this, however, there is frequently, though not always, recourse in the modern state to the independent judgment of an ombudsman. As I said earlier, this too can be relevant to the question whether the common law ought by increment to afford a remedy. The Law Commission’s consultation paper on administrative redress took in the ombudsman function and made important proposals for integrating it with the judicial system: allowing judicial review applications to be stayed where an ombudsman referral is more appropriate, removing the rule that the courts should be the first port of call if the complaint is justiciable, allowing the ombudsman to refer questions of law to the court and removing the need to approach the ombudsman through an MP. These possibilities are being developed, notwithstanding the demise of the administrative redress project, by means of the 2010 consultation paper (no. 196) Public Services Ombudsmen.
26.	It is common ground in the present cases that complaints such as those of the claimants fall within the Parliamentary Ombudsman’s remit. They have not yet gone that far because they are being considered internally. This is not a statutory process but a voluntary preliminary step. If it affords just satisfaction, well and good. If not, the claimants can invite the Ombudsman to adjudicate and to recommend a payment of compensation. We do not need to speculate about legal recourse if the Home Office should fail to comply with such a recommendation, but one can note that a decision not to comply with such a recommendation, like all decisions of public authorities, must meet legal standards of good faith, rationality and more.
27.	A number of leading cases touch on the continuing possibility of incremental change at the margins of common law liability, not in order to commend it but in order not to exclude it. Incremental change has both attractions and problems, not the least of which is that it can go in more than one direction. All that I think it necessary to say here, however, is that while nothing in this judgment is designed to constrict it, there is nothing in the present cases, in the legal situation I have outlined, to call for it. This being so, I do not think it necessary to embark on the obverse submission that to allow the present claims at common law to continue would be, in the immortal phrase of a former Secretary of State, to open a Pandora’s box from which any number of Trojan horses might leap.
Conclusion
28.	I would therefore allow the Home Secretary’s appeal on common law liability but would dismiss it, for the reasons I have given, in relation to the human rights claim. Counsel’s assistance will be welcomed on the form of order for remission and trial, but it should provide, as Judge Oliver-Jones himself suggested, for transfer to the High Court.
Lord Justice Thomas:
29.	I agree.

Lord Justice Hooper:
30.	I also agree.