The case of Advocate General for Scotland v Adiukwu [2020] CSIH 47 answers the question of whether the Home Office has a private law duty to grant a person discretionary leave to remain and issue them with a letter to allow them to take up employment once a tribunal has granted their appeal on human rights grounds. It doesn’t.

Attempt to sue for loss of earnings

Ms Adiukwu, a Nigerian law student, won her human rights appeal in the Upper Tribunal in March 2015. The Home Office did not issue her with a status letter until November 2016. She took a civil action against the department, suing for £56,000 in lost earnings and benefit entitlements because officials had taken so long to implement the tribunal’s decision.

The Home Office lost in the Sheriff Court, which found that the department did owe a duty to successful appellants to speedily grant them leave to remain. The problem, which only really became apparent once the case reached the Court of Session, was that the written pleadings did not fully explain the basis of the claim for damages. 

Defending the Sheriff Court’s findings, Ms Adiukwu’s lawyers argued that the Home Office had a duty to implement the tribunal’s decision within a reasonable time to allow her to take up work and access benefits for her and her children.

No liability for private damages despite public law duty

The Court of Session did accept that the Home Office had a duty to consider granting discretionary leave to remain under the policy in force at the time. That created a public law duty, but it did not translate into a duty of care that would allow Ms Adiukwu to sue for damages. 

The Home Office argued, and the court accepted, that even if officials could have exercised their powers to grant Ms Adiukwu leave to remain quickly to prevent her from suffering harm, that by itself was not enough to impose a responsibility in every single case. The real question was:

what has the Home Secretary done in the performance of her statutory obligations to justify the inference that she has assumed responsibility to the pursuer [Ms Adiukwu] to take reasonable care to grant her discretionary leave to remain for a limited period and to issue her with a status document enabling her to access work and/or benefits? To my mind we have been shown nothing that would come anywhere near answering this question in favour of the pursuer.

Ms Adiukwu argued that the Home Office had assumed that responsibility by not appealing the Upper Tribunal’s decision. That wasn’t good enough for the three-judge court, which rejected that argument despite, as Lord Glennie says, finding it “impossible not to feel some sympathy for the pursuer”. As he went on to say:

She did, however, have two possible means of redress. First, she could have petitioned for judicial review based on the principle of legitimate expectation. Second, she could have made a complaint to the Parliamentary Ombudsman.

The case reinforces how difficult it can be to bring a civil claim for damages against the Home Office and how carefully it needs to be framed. The main stumbling block was the very wide discretion which the Home Secretary has under the Immigration Act 1971 to grant limited or indefinite leave to remain to applicants. 

Is there any hope of compensation?

It’s difficult to think that Ms Adiukwu is ever going to get the cash out of the Home Office. Whilst she could have brought a judicial review to force the Home Office to grant some form of leave to remain and perhaps a claim for damages, that comes with the massive caveat that any proceedings would need to have been brought within three months. In cases where you are arguing about an omission rather than a specific act, it’s common for time-bar issues to be taken by the other side because it is never clear when the three-month clock started ticking.

Going to the Parliamentary Ombudsman does not yield worthwhile results in my experience. The Ombudsman is usually slow, disorganised and very conservative when it comes to ordering the Home Office to pay up. I had occasion to assist another client in a compensation claim for over £200,000. When we approached the Ombudsman, it took them a year to say that the complaint was better suited to an alternative legal remedy.