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Long waits for visa documents may give rise to compensation


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The Home Office may have to pay compensation in the case of major blunders, the Court of Appeal has said in a significant new ruling, Husson v Secretary of State for the Home Department [2020] EWCA Civ 329.

Challenging an impressive new low by the Home Office, Mr Husson sought compensation after being left waiting 25 months for a biometric residence permit (BRP) confirming his right to live and work in the UK.

On 20 May 2016, the Home Office sent the Mauritian citizen a letter confirming he had been granted leave to remain in the UK until 20 November 2018, promising his BRP would be sent within seven working days.

After years of chasing, Mr Husson finally received his BRP on 19 June 2018, with five months left to run. Without the BRP, Mr Husson had been unable to work and had accrued significant amounts of debt.

Basis of Mr Husson’s compensation claim

The Home Office provided no apology or explanation for the delay. In October 2018, Mr Husson started legal proceedings against the Home Office by way of judicial review.

To start with, he argued that the BRP should have been valid for 2.5 years from the date of issue. This point was later dropped on the basis that the document does not actually confer the right to stay: it just confirms the existence of leave.

Instead, the focus of his argument was that, if not for the Home Office mistake, he would have been able to work for the last two years.

On this basis, Mr Husson sought a declaration there had been a breach of his private life, as protected by Article 8 of the European Convention on Human Rights, claiming he was entitled to compensation.

In the alternative, he said the Home Office had breached the duty of care it owed him, and he was entitled to compensation as a result of this negligence.

To begin with, Mr Husson made little headway with his challenge. In its preliminary assessment of whether the case should be allowed to proceed to a full hearing, the Immigration and Asylum Chamber of the Upper Tribunal said that the Home Office did not owe Mr Husson a duty of care.

Somewhat bizarrely, it also suggested that Mr Husson’s passport was evidence of his right to work, and so he could have found employment if he’d really wanted. I can think of no case in which the Home Office would endorse someone’s passport with the right to work as well as issuing them with a BRP.

Mr Husson asked the Court of Appeal to reconsider the Upper Tribunal’s decision refusing him permission to proceed to a full hearing. The Court of Appeal’s judgment is what we’re looking at here.

Home Office stance on the case

By this stage, the Home Office was gracious enough to concede that no employer would have accepted Mr Husson’s passport as evidence of his right to work in the UK. But it nevertheless argued that he had not actually been prevented from working – he had simply been unable to work in the UK.

What Mr Husson should have done, said the Home Office, was return to Mauritius where he could have lived and worked during the time it took for the BRP to be issued.

Mr Husson’s leave to remain was granted on the basis he had a British wife and British son living in the UK, so this was a less than obvious course of action – particularly as he would have been unable to re-enter the UK without his BRP. Fortunately, the Court of Appeal was underwhelmed by this suggestion.

But the bulk of Home Office arguments centred on fairly technical legal points, exploring the nature of so-called “public law claims” and “private law claims”.

Public law claims, brought through judicial review proceedings, aim to hold public bodies to account. Claimants are usually asking the court to make an order directing the public body — a government department, say, or a local council — to act a in certain way, or refrain from acting a certain way. Or, as in the present case, make a declaration that the public body has acted unlawfully. These are known as “public law remedies”.

Private law claims are cases that cover the relationship between individuals. For example, where a contract has been breached or where someone has harmed someone else through negligence or wronging them in some way. In such cases, claimants are frequently seeking financial compensation, also called damages.

Public law claims do allow damages to be awarded but only as a “bolt-on” to the public law remedy. A private law claim can be brought against a public body but only in very limited situations. A key point in such cases is whether the public body has assumed responsibility for the claimant in some sense – for example, where there has been medical negligence by an NHS doctor.

In Husson, the Home Office argued that:

(1) The matter was not one for judicial review, as Mr Husson was not really seeking a public law remedy: he just wanted compensation.

(2) This was not a suitable matter for a private law damages claim. The Home Office did not owe Mr Husson a duty of care and had not assumed any particular responsibility for him.

Court of Appeal findings

As to (1), the Court of Appeal disagreed. It said Mr Husson was in fact seeking a declaration that the Home Office had acted unlawfully by failing to issue his BRP for two years. The damages claim based on breach of his private life rights was expressly linked to this declaration.

But the Court of Appeal struggled with (2). The courts have traditionally been extremely reluctant to expand the situations in which a duty of care is owed, particularly in cases involving mismanagement, or “maladministration”.

This is chiefly due to so-called “public policy reasons”, arising from the fact that the state has limited resources with which to provide important public services. The thinking is that imposing liability may lead to a rush of claims that diverts valuable financial resources away from already stretched public services.

Nevertheless, the Court of Appeal accepted it might be arguable that the Home Office had assumed responsibility in this particular case. Mr Husson’s grant of leave arose from earlier court proceedings in which the Home Office had promised to make a decision on his case. He argued that the BRP delay meant that no effective decision had, in fact, been made.

What does this mean for suing the Home Office?

While a significant ruling, as it may expand Home Office accountability, it’s important to remember that the Court of Appeal was only being asked to decide on a very narrow legal and procedural point: namely whether Mr Husson’s case appeared strong enough to even proceed to a full hearing.

The decision was in Mr Husson’s favour but the claim must now return to the Upper Tribunal to consider the facts of exactly what happened in more detail.

Until we know the outcome of that full hearing, it’s impossible to say for sure whether this is an outlying decision or part of a broader trend of holding the Home Office to account for its unacceptable delays.

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Karma Hickman

Karma Hickman

Karma Hickman is an Associate Solicitor at Bindmans LLP. She undertakes a broad range of immigration work for individuals. She has a particular interest in complex citizenship and European matters, and considerable expertise in family-related immigration cases, including international surrogacy and intercountry adoption.