England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		16 May 2012

MR JUSTICE SINGH:

INTRODUCTION

1. In this claim for judicial review the claimant seeks damages for breach of European Union law. Permission to bring the claim was granted on 21 June 2011 by Bean J. As will become clear later in this judgment, subsequent events meant that the sole remaining issue in this claim now arises from the claim for damages under EU law. By an order dated 14 February 2012 Lindblom J directed that the basis of the claim for damages, including an amplification and clarification of submissions made in support of that claim, had to be filed by the claimant. He also directed that a detailed quantification of the claim should be filed with any evidence that the claimant wished to rely upon. That order was made on 7 December 2011 but, as I have said, was sealed by the court on 14 February 2012.

FACTUAL BACKGROUND

2. The claimant is an Afghan national of Pushtun ethnic origins. His date of birth has been in dispute. His assertion was that his date of birth was 12 June 1992, although when assessed by the relevant local authority he was assessed to be four years older than that, having been born on 12 June 1988. He entered the United Kingdom illegally on 26 November 2007 and claimed asylum at that time. That claim for asylum was refused by the Secretary of State in a decision letter dated 17 November 2008. In relation to the question of the claimant's age, that decision letter said at paragraph 35(i) that regard had been had to the claimant's age but that it was noted that his date of birth as provided by social services was 12 June 1988, making the claimant 20 years of age. That was said in the decision letter to be the date of birth which had been accepted by the Secretary of State. Accordingly it was considered that the claimant's age was not a sufficiently compelling factor to justify allowing him to remain in the United Kingdom.
3. The claimant then appealed to what was then the Asylum and Immigration Tribunal. By a determination promulgated on 15 January 2009 Immigration Judge Clarke allowed the claimant's appeal. On the question of the claimant's age the Immigration Judge found as a fact (paragraph 41(i)) that the claimant had been born, as he asserted, on 16 June 1992. At paragraph 47 of the determination the Immigration Judge concluded that he was satisfied that the claimant would be at risk of severe harm if he were to be returned to Afghanistan as a minor who appears to have no relatives in that country who can be contacted or whose whereabouts are known, and that the claimant would thus be regarded as an orphan. The Immigration Judge relied in this context on an earlier decision in the case of LQ (Age: Immutable Characteristic) Afghanistan [2008] UKAIT 00005.
4. However, as the Secretary of State has emphasised before me, it is important to note also that the Immigration Judge rejected the other main ground supporting the claimant's application for asylum. In particular at paragraphs 44 to 46 of the determination the Immigration Judge did not accept the claim for asylum based upon the claimant's imputed political opinion as the son of someone who had been involved with Gulbuddin Hekmatyar and later the Taliban. The Immigration Judge concluded on this issue at paragraph 46 that he was not satisfied that the claimant was at risk because of any involvement that his father had. Even if the Immigration Judge was wrong about that, he concluded that if the claimant were returned to Kabul it was unlikely that he would be at risk in that part of Afghanistan.
5. The case was then reconsidered by Senior Immigration Judge Mather in a determination promulgated on 28 May 2009. The Senior Immigration Judge found that paragraph 47 of the Immigration Judge's determination was flawed by an error of law which was material. This was on the basis that the case of LQ was distinguishable on the ground that in LQ there was an express finding that the appellant would be at real risk based on particular evidence. At paragraph 15 of his determination the Senior Immigration Judge said that since there had been a material error of law in the Immigration Judge's decision concerning the approach to the appellant as a minor and the respondent's decision had not been made in accordance with law, he would substitute the following decision for that of the Immigration Judge. The appeal was allowed on asylum and human rights grounds to the extent that the decision was remitted to the respondent for a fresh decision taking into account the relevant policies.
6. The claimant then appealed to the Court of Appeal. That court gave its judgment on 15 June 2010. The principal judgment was given by Jackson LJ, with whom the Chancellor of the High Court and Thomas LJ agreed. At paragraph 33 of his judgment Jackson LJ said that the original immigration judge's decision had not been an impressive determination. It contained slips and, furthermore, it would have been helpful if the reasoning of the Immigration Judge had been set out more fully and more clearly. On the other hand, Jackson LJ was not persuaded by the submissions made on behalf of the Secretary of State that the Immigration Judge's decision contained a material error of law. Accordingly he concluded that the Senior Immigration Judge had not been entitled to overturn the original decision of the Immigration Judge at the reconsideration hearing. The decision of the Senior Immigration Judge was therefore reversed and the decision of the Immigration Judge was restored.
7. Before leaving the judgment of the Court of Appeal it is important to note paragraph 18, where Jackson LJ said that at the start of the hearing of the appeal the court had been inclined to wonder whether the appeal served any useful purpose, given that the appellant had by that date attained the age of 18. However, the court was persuaded by counsel's submissions that it should proceed to determine the appeal on the narrow issue of whether or not the Senior Immigration Judge had erred in law in overturning the Immigration Judge's decision. Jackson LJ noted – as indeed ensued – that if the present appeal succeeded, the Immigration Judge's decision would be restored, but observed as follows:

"The consequences of such restoration are not a matter for determination by this court."

8. Having obtained that decision of the Court of Appeal in his favour, the claimant's representatives then wrote on 30 July 2010 to the Secretary of State. They sought first that the claimant should be immediately issued with a residence permit dated from the date of refusal which should have been valid for five years. In the alternative they requested that the claimant should be issued immediately with a residence permit dated from the date of decision of the first tribunal which should have been valid for five years. They also asserted that the claimant was entitled to damages for loss of the benefits that would have flowed from a correct recognition of his status. They also asserted that the claimant should be given the immediate right to undertake employment. It should be noted that at that stage they were not asserting that he had had a right of employment previously and should be entitled to damages for having been kept out of the labour market.
9. The decision letter which is the subject of the challenge in the present claim for judicial review is dated 11 August 2010 and was sent in response to the letter of 30 July to which I have referred. The Secretary of State's letter said that following the Court of Appeal decision the claimant's entitlement to refugee status in line with the case of LQ had been reviewed:

"The determination of the Immigration Judge to grant refugee status has been carefully examined. However, it has been decided that your client is not entitled to any form of leave in the UK, whether that be Refugee Status or Discretionary Leave as an Unaccompanied Asylum Seeking Child (UASC).

Any entitlement to asylum under LQ would cease upon reaching 18."

10. The purpose of the UASC policy is to provide protection for minors and it was noted that the claimant was no longer a minor by this time. In relation to the suggestion that the claimant should have been given assistance by social services under the Children Act 1989 the letter observed that the Immigration Judge's finding that the applicant was a minor was not binding on social services and that Solihull Social Services had assessed the applicant in 2008 and found him to be aged 20.
11. In relation to permission to work the letter noted that the applicant had never applied for such permission. He had been provided with financial support and accommodation by the Home Office throughout the duration of his appeal so it was said he had not been significantly disadvantaged as a result of not having permission to work. As regards the opportunity to seek to extend any leave granted under the UASC policy, any entitlement to discretionary leave would have expired on 12 December 2009 when the applicant reached the age of 17½ and any subsequent application for extension of leave would now have likely been refused. The letter concluded on this point: that the applicant had not been significantly disadvantaged as a result of not being able to seek to extend any leave granted under the UASC policy. The loss of the potential advantages, both procedural or substantive, was a factor which had been taken into account by the Secretary of State but the letter concluded that these factors were not found to be sufficiently compelling to grant any form of leave to the applicant.
12. Subsequently the present claim for judicial review was commenced and, as I have mentioned, permission to bring the claim was granted by Bean J on 21 June 2011. In his observations Bean J said that there are substantial arguments to be raised on each side as to what the consequences of the Court of Appeal's decision should be.
13. After that grant of permission and after a hearing which had been scheduled to take place in October 2011 but was adjourned, a letter was sent by the Secretary of State on 1 November 2011. This stated:

"Your client has been granted leave to remain in the United Kingdom as a refugee. Your client's claim has been recorded as determined on 13 January 2009."

That date appears to have been used because it was taken to be the date of the determination of the Immigration Judge in this case. As I have said, in fact that decision was promulgated on 15 January 2009 but nothing at the present hearing has turned on that point.

14. At the hearing before me counsel for the Secretary of State informed me that the Secretary of State now took the view that in fact that decision to backdate the grant of leave to remain was an erroneous one. Indeed, as I understood it, the Secretary of State doubted that she had power to backdate in that way. Nevertheless, I was informed that this was done not in without prejudice negotiations or anything of that sort but for pragmatic reasons with a view to bringing the present proceedings in substance to an end. What the Secretary of State firmly submitted before me was that nothing should be inferred from the fact of the decision of 1 November 2011 that the Secretary of State accepted that EU law or other legal obligation required the Secretary of State to grant refugee status in this case, still less to grant such status from a date in the past. In any event, the Secretary of State submitted before me that whatever the understanding of the executive may be as to the law, ultimately that must be a question for the courts.
15. Subsequent to the order of Lindblom J, to which I have already referred, the claimant submitted what is described as "supplementary statement of detailed grounds re damages claim" and attached to those grounds a schedule of loss and damage to which I will return.

RELEVANT LEGISLATION AND OTHER MATERIALS

16. Council Directive 2004/83/EC of 29 April 2004 (often referred to as the Qualification Directive) provides the mainstay of the claimant's arguments in this case. Article 2 of that Directive – which is the definition provision – defines refugee at paragraph (c) to mean:

"...a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country …"

17. It will be seen that that is very similar to the definition of a refugee within the meaning of the Geneva Convention; that is, the 1951 Convention relating to the Status of Refugees as amended by the Protocol of 1967. Article 2(d) of the Directive defines refugee status to mean:

"...the recognition by a Member State of a third country national or a stateless person as a refugee".

At this juncture I should note that it was part of the claimant's submissions before me that one should have regard in that context to recital number 14 in the preamble to the Directive which states that:

"The recognition of refugee status is a declaratory act."

18. Particular reliance has been placed by the claimant before me on Article 13 of the Directive. This states:

"Member States shall grant refugee status to a third country national or a stateless person, who qualifies as a refugee in accordance with Chapters II and III."

19. On behalf of the Secretary of State there has been particular reliance placed on Article 14 of the Directive which states at paragraph (1):

"Concerning applications for international protection filed after the entry into force of this Directive, Member States shall revoke, end or refuse to renew the refugee status of a third country national or a stateless person granted by a governmental, administrative, judicial or quasi-judicial body, if he or she has ceased to be a refugee in accordance with Article 11."

20. Article 11, so far as material, provides in paragraph (1):

"A third country national or a stateless person shall cease to be a refugee, if he or she:

(a) has voluntarily re-availed himself or herself of the protection of the country of nationality; or

(b) having lost his or her nationality, has voluntarily re-acquired it; or

(c) has acquired a new nationality, and enjoys the protection of the country of his or her new nationality; or

(d) has voluntarily re-established himself or herself in the country which he or she left or outside which he or she remained owing to fear of persecution; or

(e) can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality..."

21. Some reliance was placed at the hearing before me on Article 20 and Article 30 of the Directive by the claimant. In particular Article 20(3) provides that when implementing Chapter 7:

"...Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors..."

Article 30(3) provides that:

"Member States shall ensure that unaccompanied minors are placed either:

(a) with adult relatives; or

(b) with a foster family; or

(c) in centres specialised in accommodation for minors; or

(d) in other accommodation suitable for minors."

Finally in the context of this Directive I should note Article 24(1) which provides:

"As soon as possible after their status has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least three years and renewable unless compelling reasons of national security or public order otherwise require, and without prejudice to Article 21(3)."

22. My attention was also drawn at the hearing to Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for granting and withdrawing refugee status. Since nothing turned specifically on the provisions of that Directive in the present case, I need not set out here its detailed provisions. I should, however, note that Article 23 of the Directive provides that Member States shall process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II and that they shall ensure that such a procedure is concluded as soon as possible without prejudice to an adequate and complete examination.
23. On behalf of the claimant emphasis was also placed on Article 39 of the Procedure Directive which provides that Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against the various types of decision which are there enumerated.
24. So far as the United Kingdom is concerned, I was informed by the Secretary of State that in general the view is taken that there is no need to enact specific legislation or other measures in order to implement the Directives to which I have referred, in particular the Qualification Directive. The reason for this is that, as is well known, the United Kingdom has for a long time recognised its obligations in relation to asylum claimants and refugees. Accordingly there have been for many years both legislation and other measures in place which in substance in the view of the United Kingdom implement the Directive. In the context of residence permits of the type which was issued to the present claimant on 1 November 2011 it is worth noting paragraph 339Q(i) of the Immigration Rules, which provides:

"The Secretary of State will issue to a person granted asylum or humanitarian protection in the UK a UK Residence Permit (UKRP) as soon as possible after the grant of asylum. The UKRP will be valid for five years and renewable, unless compelling reasons of national security or public order otherwise require, or where there are reasonable grounds for considering that the applicant is a danger to the security of the UK or, having been convicted by a final judgment of a particularly serious crime, the applicant constitutes a danger to the community of the UK."

25. On behalf of the claimant it has been submitted before me that the consequence of the claimant's success before the Court of Appeal was that refugee status should have been granted under Article 13 of the Qualification Directive to this claimant as from his original success before the Immigration Judge on 15 January 2009. Although the letter of 30 July 2011 had suggested at least as the first possibility that the grant of refugee status should have been backdated to the date of his first refusal -- that is November 2008 -- before me it was accepted on behalf of the claimant that the appropriate date was not that but, in the claimant's submission, was January 2009 (for reasons I have already explained). In particular the claimant accepted that this was the consequence of the decision of the Court of Appeal in Ravichandran [1996] Imm AR 97, in particular page 122 in the judgment of Simon Brown LJ, as he then was. In that passage Simon Brown LJ said that in asylum cases the appellate structure as applied by the Asylum and Immigration Appeals Act 1993 is to be regarded as "an extension of the decision making process".

THE CLAIM FOR DAMAGES UNDER EU LAW

26. Several authorities were cited before me which set out the relevant principles which govern claims for damages under EU law. It will, I hope, suffice if I cite just one because, as I understood it, it was common ground before me that this decision brings together the relevant principles based upon earlier and well known authorities such as Brasserie du Pecheur (C-46/93 & C-48/93), Factortame (C-213/89) and Francovich (C-6/90). The main decision that was cited before me is the decision of the European Court of Justice in Haim (C-424/97) [2000] ECR I-5148. In particular, reliance was placed upon paragraphs 35 to 43 in the judgment, where the court sought to address what was in that case the second question which had been referred by the German court in question. Question two asked on the reference whether, where a national official has either applied national law conflicting with Community law or applied national law in a manner not in conformity with Community law, the mere fact that he did not have any discretion in taking his decision gives rise to a serious breach of Community law within the meaning of the case law of the court. At the paragraph 36 the Court of Justice summarised its previous case law and said that three conditions must be satisfied 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 can be held responsible: first, the rule of law infringed must have been intended to confer rights on individuals; secondly, the breach must be sufficiently serious; thirdly, there must be a direct causal link between the breach of the obligation resting on the State and the loss or damage sustained.
27. At paragraph 37 the Court of Justice made it clear that those three conditions must be satisfied both where the loss or damage is the result of a failure to act on the part of a Member State and where it is the result of the adoption of a legislative or "administrative act" in breach of Community law. At paragraph 39 the Court of Justice observed that the obligation to make reparation for loss or damage does not depend on any concept of fault going beyond that of a "sufficiently serious breach of Community law". At paragraph 41 the Court observed that a mere infringement of Community law may, but does not necessarily, constitute a sufficiently serious breach. At paragraph 42 the Court said that in assessing that question of a sufficiently serious breach, a national court must take account of all the factors which characterise the situation put before it. At paragraph 43 it said that those factors include, in particular, the clarity and precision of the rule infringed, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable and the fact that the position taken by a Community institution may have contributed towards the adoption or maintenance of national measures or practices contrary to Community law. I have had regard to those factors.
28. On behalf of the claimant it has been submitted that each of the three conditions which I have mentioned as founding a claim for damages under EU law is satisfied in the present case. In particular it is submitted that the Secretary of State's decision in the present case not to grant refugee status backdated at least to the time of the Immigration Judge's decision of 15 January 2009 breaches Article 13 of the Qualification Directive. The Secretary of State submits that what that requires is to read words and obligations into Article 13 which are not there. In particular the Secretary of State submits that Article 13 does not say anything about the particular time at which refugee status has to be granted or, when granted, when it must be deemed in law to have taken effect. I accept that submission on behalf of the Secretary of State and can find no relevant right or obligation such as what the claimant needs to establish in the present case in order to found his claim for damages.
29. It should also be noted that Article 24 of the Qualification Directive requires a residence permit to be issued "as soon as possible" after refugee status has been granted. This is implemented by and consistent with the domestic Immigration Rules in the passage I have already quoted. Furthermore, what the Procedure Directive says on the question of timing is simply in Article 23 that Members States shall process applications for asylum using a procedure as soon as possible without prejudice to an adequate and complete examination. Furthermore, I accept the submission made on behalf of the Secretary of State that it is important to have regard to the particular facts of the present case and the sole reason why the Immigration Judge had decided that at that time the claimant qualified as a refugee, namely his status as a minor who had no one else to turn to in Afghanistan. As the Secretary of State observes, the effect of Article 14 read with Article 11 of the Qualification Directive was that, strictly speaking, by the time of the decision taken by the Secretary of State the claimant did not necessarily qualify for the grant of refugee status. It should be noted that Article 13 provides that Member States shall grant refugee status to a person "who qualifies as a refugee in accordance with Chapters II and III". As the Secretary of State submits, the applicant did not qualify by the time of her decision to grant refugee status.
30. Finally, I accept the Secretary of State's submissions in this context that legal certainty would be promoted by her construction and would tend to be impeded by the alternative construction advanced by the claimant. This is because it is necessary for all concerned, not only the applicant for asylum and the Secretary of State but also other agencies like local authorities, for whom the question of somebody's refugee status may be important. Legal certainty is promoted if there can be clarity and precision about the date from which that status is granted.
31. I have taken into account in the present context a submission made on behalf of the claimant based upon recital number 14 in the preamble to the Directive which I have already quoted. It was submitted that recital number 14 provides that recognition of refugee status is a declaratory act and therefore not a "constitutive" act. However, in my judgment, the meaning of Article 2(d) of the Qualification Directive is clear, that refugee status means the recognition by a Member State of a third country national or a stateless person as a refugee. In my view there is nothing contradicted in the natural interpretation of that paragraph by the recital to which reference has been made. Refugee status is granted by the recognition by a Member State of a person as a refugee. That is a declaratory act in the sense that it is founded upon facts which substantiate the claim for asylum. It is not the act of recognition which constitutes a person as a refugee; it is those underlying facts. However, none of that, in my view, helps to establish what the claimant needs to establish, which is that Article 13 of the Qualification Directive requires the Secretary of State to backdate her grant of refugee status to a particular date.
32. For those reasons, therefore, I have come to the conclusion that the claimant cannot succeed in getting the claim for damages under EU law off the ground. This is for the reason that there is no breach of the EU right invoked by the claimant. However, even if I were wrong about that, I am not persuaded by the claimant's arguments that there was in the present case a sufficiently serious breach of EU law as required by the principles is Haim to which I have already referred. In my judgment there would be nothing out of the ordinary by holding, as I do, that the grant of refugee status takes prospective effect. As I have already said, that is conducive to the interests of legal certainty. It is also consistent with the general position adopted in our own administrative law, although I accept that this may not be true in all systems of administrative law, in particular in other Members States of the European Union. However, as I have said, there are indications in the EU Directives themselves that the timing of a decision is governed by, for example, the obligation in Article 23 of the Procedure Directive that an examination procedure should be concluded as soon as possible. There is no reason in my view why the court should take the view in the present context that the Secretary of State has committed a sufficiently serious breach in accordance with the principles of Haim to which I have already referred. In the present context, where what in fact has happened is that there was quite properly an appellate process or reconsideration process used by each party at various stages, that process eventually led to a judicial determination which, as it happened, was in favour of the claimant. The Secretary of State then recognised the claimant's refugee status and granted him a residence permit. It does not follow from any of that that there has been a sufficiently serious breach of EU law -- if there has been any breach at all -- by a failure to recognise that status from some earlier date, in particular the date of the Immigration Judge's decision of 15 January 2009.
33. Even if I were wrong about all of what I have said so far, I turn to the third condition for liability for damages under EU law, which is that the breach complained of must have a direct causal link to the damage alleged to have been sustained. For that purpose it is necessary to go to the claimant's schedule of loss and damage, to which I made reference earlier. In support of that schedule the claimant has filed a witness statement dated 15 November 2011. In response a witness statement has been filed on behalf of the Secretary of State by Adrian Trigg on 16 December 2011. It is not necessary or appropriate in these proceedings for the court to adjudicate on factual disputes between those two statements. Suffice to say that the Secretary of State does not accept much of the assertion of fact made by the claimant. The Secretary of State submits, rightly in my view, that the burden of proof lies upon the claimant who makes certain assertions of fact. In particular, the burden of proof lies on the claimant to show a direct causal link. It will be noted that what EU law requires in this context is not simply proof of causation -- a concept well known to the common law -- but proof of a direct causal link. In the claimant's schedule of damage part one deals with asserted loss of earnings and relates to the period between 19 January 2009 and 7 November 2011. It is not entirely clear why those precise dates are taken, but suffice to say that they correspond roughly to the date of the decision of the Immigration Judge and the grant of a residence permit by the Secretary of State. However, the fundamental obstacle in the way of this head of claim, it seems to me, is that it assumes that the claimant had a right to a job. He had no such right. It could be said at most that he was entitled – or should have been if refugee status had been backdated – to participate in the labour market in this country. That cannot possibly avail the claimant in the present context, in my judgment; that would come nowhere near establishing a direct causal link between the breach complained of and the damage alleged to have been sustained, namely the loss of earnings.
34. Part two of the claimant's schedule is in the alternative to part one and relates to welfare benefits. One of the welfare benefits which it is claimed would have been payable to the claimant is jobseekers' allowance. As was common ground before me, jobseekers' allowance is only payable to a person who is actively seeking work. It cannot be claimed, for example, by someone who is in full time education. Even on the claimant's own case as I understand it, it has not been proved on a balance of probabilities in my judgment that he would have been claiming job seekers' allowance at the relevant time. It is more likely, even on his own case, that he would have been in education. So far as the other claim to welfare benefits is concerned, which relates particularly to Educational Maintenance Allowance, I am not persuaded on the evidence before the court that the claimant has proved, as he needs to prove, a direct causal link between the breach of EU law complained of and that head of damage.
35. Part three of the claimant's schedule relates to what are called general damages. At times, particularly at page eight of the schedule, it would appear this head of claim asserts that the claimant suffered "psychological trauma" and also "suffering and loss of amenity" which is analogous to "the symptoms of post-traumatic stress disorder under psychiatric damage as a comparison". That reference to "comparison" is with the Judicial Studies Board Guidelines on Quantum of Damages (Tenth Edition) in relation to PTSD. It is asserted on behalf of the claimant that the analogy would be with Category C of PTSD; that is, moderate. The sum claimed under this head by the claimant is £10,000.
36. At the hearing before me, as I understood the submission, reliance was placed not so much on general damages being for a recognised disorder or psychological trauma, or even for any kind of personal injury, but rather to the concept of injury to feelings. No authority has been shown to me which holds that injury to feelings is a type of loss which can be claimed in the present context, and I note that in other contexts such as the discrimination legislation in this country, Parliament has needed to allow for such a claim in express terms. Furthermore, I am not persuaded that any of the material or submissions before the court have proved a direct causal link between the breach complained of and the damage alleged to have been sustained. As has been submitted on behalf of the Secretary of State and is evidenced in Mr Trigg's witness statement, in particular at paragraph 17 where he summarises the earlier part of his evidence, much of what the claimant complains about in this context in his witness statement relates to the character of the accommodation he was afforded, in particular that as a minor he was accommodated by a local authority with adults aged over 21 years. One of the problems that the claimant's claim in this context faces is, as Mr Trigg observes, that the claimant did not challenge the decision of the local authority that he was not a minor. He could have done so and this court and the Upper Tribunal are familiar with cases in which the decisions of local authorities in relation to persons who allege that they are minors and have come to this country from overseas are regularly the subject of challenge and, if necessary, factual determinations have to be made by the court or the tribunal. As I have said, the claimant made no such challenge. The Secretary of State was right to observe in her decision letter of 11 August 2010 that the social services authority was not bound by the finding of fact as to the claimant's age made by the Immigration Judge in this case.
37. Accordingly, I accept the Secretary of State's submission in this regard also, that the claimant has simply not proved -- as he must prove -- a direct causal link between the breach complained of and the damage alleged to have been sustained.

CONCLUSION

38. For all the reasons which I have given, this claim is dismissed.

MR JUSTICE SINGH: Is there anything else?

MR BEDFORD: Yes, my Lord, there is. I am not sure whether my friend has an application in relation to costs.

MR HAMILTON: Yes, my Lord, the defendant would seek its costs in this case, subject of course, I understand, that the claimant is subject to legal aid and that costs order will have to be determined in due course in accordance with the Administration of Justice Act.

MR JUSTICE SINGH: Yes. Do you have anything to say about that?

MR BEDFORD: My Lord, I do. This case of course began as an application for recognition as well as a claim for damages. We were successful, certainly until November of last year, in the substance of the relief that we sought. Even in relation to the part of the costs on which the Secretary of State has been successful, they ought to be limited, I think, to those costs from that date.

MR JUSTICE SINGH: From 1 November.

MR BEDFORD: Yes, and they ought to be set off against the other costs.

MR JUSTICE SINGH: We can do that, but generally speaking the White Book advises against set off and things like that because it can lead to great complexity in detailed assessment, let alone negotiation between the parties. One way of cutting through that kind of difficulty sometimes can be to make no order as to costs as reflecting the justice of the case. Would you resist that?

MR BEDFORD: No, subject of course to my next application.

MR JUSTICE SINGH: Yes, but on the question of costs, what do you say about that?

MR HAMILTON: My Lord, I do not have any instructions on whether I can accept that; I need to seek instructions before I could give a view on that.

MR JUSTICE SINGH: Is there anyone here to give you instructions?

MR HAMILTON: No, my Lord. I can attempt to telephone my instructing solicitors if that would be agreeable.

MR JUSTICE SINGH: I do not really want to take up more time because I think that would be disproportionate. What I will do is make no order as to costs in this case but I will give you permission to apply in writing to vary. I think you should do that by tomorrow, so I will say by 4pm on Thursday 17 May. That should give you time to get instructions. That application must be made to me; it can be made in writing not in person. Since I am leaving Birmingham at the end of Friday, I think I should dispose of this case this week before I go.

MR HAMILTON: My Lord, should that application be made to you here or by email?

MR JUSTICE SINGH: By email is fine, to the Administrative Court Office here in Birmingham and the court staff will make sure that it gets to me. I make it clear that it is an unless order so my order at the moment is no order as to costs but I give liberty to apply to vary that by 4pm tomorrow.

What is next?

MR BEDFORD: My Lord, I would ask for permission to appeal. Of course I see the decision that you have made encompasses the three limbs of the test. Nonetheless, my Lord, we accept that there is a point of principle engaged in this case. This is the first time a claim has been made in this way for damages and it does turn, in my submission, on the proper reading of the Act. This is in relation to Article 13. My Lord, you already have those points and there is no need to re-elaborate on them.

The point in relation to caution and direct causal link, my Lord, of course your approach has been thorough but in some sense broad brush. There are various heads of claim and clearly the main ones have been dealt with, but may I say that they have not been dealt with comprehensively. I do not mean to be nitpicking in this regard. I do not want to attack it on that basis; I just want to deal with the principle in relation to the ruling that there was in fact no loss because of perhaps some supervening cause, ie failure to JR the decision of the local authority.

My Lord, the question of the extent to which the local authority is bound by the decision of the Secretary of State to recognise a decision of the First-tier Tribunal has in fact reached the Court of Appeal so that there are now three linked cases in which I am also involved which is going to test the proposition that the local authority is not bound by the Secretary of State in relation to age. That would be a main basis, if that claim is successful, to bring out the point of direct causal link.

MR JUSTICE SINGH: I am going to refuse permission to appeal. The two reasons for that are that although the claimant submits that the first part of my reasoning relates to a point of principle, the test for permission to appeal is whether there is a real prospect of success or some other compelling reason. I do not consider that there is, in the circumstances of this case, either any real prospect of success or any other compelling reason. Further, and in any event, as I have made clear in my judgment I have found against the claimant on a series of questions of fact, as is appropriate under the principles which the claimant has invoked under EU law. I do not consider that there is any real prospect of success or other compelling reason in relation to those matters. So it would be a matter for the Court of Appeal if the claimant pursues his application.

If there is nothing else, I will thank you both for your assistance and could also please thank Miss Anderson in her absence.

MR HAMILTON: Yes, my Lord.

MR JUSTICE SINGH: Thank you very much.

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