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Damages claim for asylum delay dismissed by Court of Appeal
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The Court of Appeal has dismissed a claim for damages against the Home Secretary for a five month delay in granting refugee status, following a successful appeal, to a person with severe mental health issues. The case is FXJ v Secretary of State for the Home Department & Anor  EWCA Civ 1357.
The appellant is a Somali national who has been recognised as a refugee. He suffers from mental health issues including psychotic and depressive symptoms, these existed before he entered the asylum system in the UK. He arrived in the UK and claimed asylum in October 2001. This was refused but he was granted exceptional leave to remain until 2003. A second asylum claim was also refused and appeal dismissed.
In August 2007 the appellant was convicted of robbery and sentenced to 18 months’ imprisonment. He was served with a deportation order and his appeal was unsuccessful and concluded in February 2009. The appellant made further representations in support of his asylum claim and asking for the deportation order to be revoked in March 2009 and this was refused in January 2014.
The First-tier Tribunal dismissed the appeal in May 2015. The Upper Tribunal set aside that decision in October 2015, the rehearing took place in November 2015 and his appeal was allowed by the Upper Tribunal in December 2015. The Home Secretary applied for permission to appeal in December 2015 and that was refused in January 2016.
The deadline to apply to the Court of Appeal directly was 10 February 2016. No application was made by the Home Secretary. On 19 February 2016 the appellant’s solicitors wrote to the Home Secretary asking that he be granted leave as a matter of urgency, pointing out that he had serious mental health issues and the delay was likely to have a detrimental effect on him.
On 15 April 2016, the Home Secretary made an out of time application for permission to the Court of Appeal. An internal file note dated May 2016 made by a senior Home Office official said that the case should not be pursued, and that “where we accept that a Somali has serious mental health issues and does not have a strong family support network in Mogadishu, I do not understand why we would not grant leave nor why we would incur taxpayers’ money on futile attempts to deport”.
In the meantime, following a marked deterioration in his health after the delay in his being granted leave after the Upper Tribunal’s decision, the appellant was sectioned under the Mental Health Act 1983 and hospitalised for 43 days.
Presumably in response to the internal file note, the application to the Court of Appeal was withdrawn and the appellant notified that he would be granted refugee leave on 19 May 2016. The grant of leave was issued to him on 23 July 2016. Medical evidence provided later said that the stress of the situation was a “significant aggravating factor” in the relapse in his schizophrenia and that this was not resolved by the grant of leave.
The appellant brought a claim for damages in negligence, misfeasance in public office and under section 7 of the Human Rights Act 1998. It was argued that the Home Secretary owed the appellant a common law “duty to make a prompt decision on the implementation of his successful appeal and on the grant of leave to remain in the UK” particularly due to his vulnerabilities as a person seeking asylum who also suffered from serious mental illness. It was submitted that the duty had been breached by the failure of the Home Secretary to act properly and expeditiously, including the making and withdrawing of the late application for permission to appeal out of time. The relevant period was 10 February 2016 (the Court of Appeal deadline) until 23 July 2016 when the appellant was granted leave.
All three claims were dismissed at trial. On the negligence claim, the judge held that the relationship between the parties was one of litigation and that the Home Secretary did not owe a duty to the appellant. In the alternative, the judge found that there was not enough evidence to support the assertion that there had been a breach of duty.
The misfeasance claim centred on the late appeal and this was rejected as the judge held that the Home Secretary was entitled to consider the merits of a late appeal and none of the matters complained of disclosed subjective recklessness. The human rights claim was dismissed on the grounds that the five months’ delay in implementing the grant of status did not engage article 8 and even if it did, the interference with those rights was justified.
The appeal to the High Court was dismissed and the appellant appealed to the Court of Appeal.
The Court of Appeal’s decision
The Court of Appeal considered three grounds. The first two were linked and related to the finding in the negligence claim that there was no duty of care owed by the Home Secretary to the appellant. The third ground was a challenge to the decision that there was no breach of article 8. The misfeasance argument was not pursued in the Court of Appeal.
Addressing the negligence claim, the Court of Appeal set out the “fundamental” distinction to the decision of whether a common law duty of care was owed. This was expressed at  as
“The law of negligence generally imposes duties not to cause harm to other people or their property and does not generally impose duties to provide them with benefits, which are, in general, voluntarily undertaken rather than being imposed by the common law.”
The appellant argued that the previous judges erred in treating the claim as one of “failing to confer a benefit” as the Home Secretary had engaged in conduct that cause foreseeable personal injury to the appellant by lodging the futile appeal. The Court of Appeal recognised that the distinction can be difficult to apply, but found that the judges below did not fall into error. The duty on the Home Secretary was to exercise discretion to grant leave to remain, this was a benefit that was not conferred promptly. The negligence grounds were accordingly dismissed.
Unlike in the County Court, the High Court judge had found that article 8 could potentially be engaged in the circumstances of this case, with reference to the structured basis for assessing these claims as set out in R (Razgar) v Secretary of State for the Home Department  UKHL 27. But the judge concluded that “delays are an occasional unavoidable feature of any system dependent on individual decision-making” and the effect of the “not substantial or serious” delay was not disproportionate. This was appealed on the basis that there had been a failure to carry out a proportionality assessment that took into account the individual circumstances of this case.
The Court of Appeal rejected this argument, stating that the findings and conclusions “reflect a judgment made about proportionality on an individualised basis by reference to the particular circumstances of this case”. This ground of appeal was also dismissed, the court concluding that the judges below were entitled to decide that the effect of the delay on the appellant’s mental health, in circumstances where it was already poor, was not disproportionate.
The asylum system causes a huge amount of harm to a very large number of people. This was a particularly serious case, however these cases will always be very difficult to succeed in. This is a very different case to the other challenge that is being brought to the delays in the asylum system though, and so should not be taken as indicative of any particular outcome there.