The Court of Appeal has severely criticised the Home Office for administrative incompetence regarding the processing of immigration applications. Secretary of State for the Home Department v Said  EWCA Civ 627 involved the Home Office appealing a decision from the High Court allowing the application for judicial review in relation to damages, where HJH Thornton was severely critical of the department. The Court of Appeal dismissed the appeal and provided guidance on how to tackle extreme delays in reaching immigration decisions.
This judgement has been welcomed by the best immigration solicitors in London.
The facts of the case
The Home Office granted Indefinite Leave to Remain to the first respondent and limited leave to the third respondent. At a hearing in October 2014, the judge gave directions for judicial review proceedings seeking damages for the delay to continue.
The Secretary of State decided to deport the second respondent, who appealed. The Secretary of State's proposal that the proceedings be stayed pending a reference to the Home Office's internal complaints procedure was rejected, and she admitted that the delay amounted to maladministration.
The Respondent amended the grounds of the judicial review, seeking a declaration that the delay was unlawful, quashing of the decisions in respect of the third and second respondents. Additionally, damages under the Human Rights Act 1998 were claimed.
At a hearing in December 2014, the judge granted permission for judicial review and considered the issue of liability. He set aside the decisions in respect of the second and third respondents and declared that the delay had been unlawful, with issues of damages, causation and quantification to be determined at a later hearing.
The Secretary of State appealed.
The Court of Appeal’s decision
The Court of Appeal held the judge at first instance was correct. Lord Justice McCombe stated that the approach to awarding damages for breach of European Convention of Human Rights, Article 8 should be no less liberal than those applied by the European Court of Human Rights. The applicant should be put, so as far as possible, in the same position as if his rights had not been infringed.
The Court of Appeal followed Anufrijeva v London Borough of Southwark  EWCA Civ 1406.
Lord Justice McCombe identified six key principles for assessing this type of claim:
- The approach to awarding damages for breach of Article 8 rights should be no less liberal than those applied by the ECtHR;
- The applicant should be put, so far as possible, in the same position as if his rights had not been infringed;
- There is a disinclination to recognise that maladministration resulting in delay engages Article 8 at all, "unless this has led to serious consequences";
- Awards of damages in tort indicated by the Judicial Studies Board (as it then was) and by the Criminal Injuries Compensation Board and the Ombudsman may provide "rough guidance";
- There are good reasons why, where breach arises from maladministration, damages should be modest;
- However, awards should not be minimal as this would undermine the respect for Convention rights, but a "restrained or moderate approach to quantum would provide the necessary degree of encouragement to public authorities..."
The Secretary of State tried to argue the Home Office’s internal complaints procedure would have been adequate to deal with the matter.
“The SSHD’s case on this point is again derived from Anufrijeva v London Borough of Southwark. In paragraph 79 and following, the court expressed concern that costs in this type of proceedings can well exceed the level of damages likely to be awarded. In paragraph 81 of the judgment in that case it was said that, “[b]ased upon the experience available at present…”, before granting permission to apply for judicial review, the court should require the claimant to explain why it would not be more appropriate to use an internal complaints procedure or to proceed with a complaint to the relevant Ombudsman, the time scale appearing to the court to compare favourably with that of litigation”.
This led to a severe rebuke by Lord Justice McCombe who commented:
“Further, what was known of the nature of the complaints system did not give much support to the view that it was appropriate for these claims. The evidence adduced by the SSHD from Ms Chambers, the “lead for complaints within UK Visas and immigration Service of the Home Office” set out the bare bones of the complaints system and exhibited a document entitled “Complaints Management Guidance”. Ms Chambers said that standard response time was 20 working days, “except for serious misconduct complaints, where we have 12 weeks to respond””.
The statement concluded with this:
“During the complaints process we will consider reimbursing any out of pocket expenses incurred to the complainant if during our investigation it is found that we are at fault and costs were a direct consequence of our actions. We will also in exceptional circumstances consider whether a consolatory payment may be appropriate”.
Ms Chambers’ statement is borne out by the fact that the SSHD’s response to the respondents’ complaint, very speedily withdrawn, was to offer a mere £500 to Yasin in respect of the entire complaint. 147. It seems to me that, in suggesting the reference of these cases to the complaints procedure and in pitching the offer of compensation, the SSHD simply failed to grasp the scale and seriousness of the complaints being made and of the delays that had occurred”.
If you have been a victim of severe delays by the Home Office in relation to immigration decisions, it is imperative you speak to an experienced immigration lawyer who can provide you with advice and representation in relation to claiming for damages.
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Posted on: Tuesday, 17 April, 2018