Claiming Compensation from the Home Office for Breach of Immigration Rights – Part 1

This is an interesting question, and unfortunately not that can be easily answered.

The starting point when answering this question is; English law does not provide a remedy in damages for breach of a public law right. Section 31(4) Supreme Court Act 1981provides that a claimant may only recover damages in an application for judicial review if he would have been awarded damages if the claim has been made in an ordinary private law action.

There are some situations where it is theoretically possible to pursue a claim in damages against a public body such as the Home Office. These include:

• False imprisonment
• Malicious prosecution and/or process
• Harassment
• Delay

These will be covered in depth in our next blog.

judicial review is an equitable remedy. The court has the discretion to make an award in successful claims, which it will only exercise where it is ’just and appropriate’ to do so.

Section 8 Human Rights Act 1998 permits the court if it considers it just and appropriate, to award damages where a public authority is found to have acted unlawfully.

The types of damages available in an HRA claim include:

• general damages/ non-pecuniary losses for delay, frustration, depression or loss of opportunity to achieve a better result
• special damages/ pecuniary damages, e.g., for loss of profit

Article 41of the European Convention on Human Rights (ECHR) provides that if there has been a violation of ECHR or its protocols, and if the internal law of the representatives of the country which ratified the treaty only allows for partial compensation to be paid, the court shall, if necessary, afford just (equitable) satisfaction to the injured party.

In a number of cases, the courts have held that the finding of a breach constitutes ‘just satisfaction’ for the claimants and that they were not entitled to damages on top of this. An example of this is illustrated in the case of R (on the application of Bernard) v Secretary of State for the Home Department. This judgment concerned delay in holding a parole hearing. The court considered it would not have been necessary to award damages for generalised assertions of feelings of frustration and distress. What was required was significant frustration and distress of such intensity that it would in itself justify an award of compensation for non-pecuniary damages.

The key point to take away is that damages are will be awarded in judicial review under limited circumstances. However, a case decided last year proved that an award for damages in an Immigration case is possible.

R (on the application of Zewdu) v The Secretary of State for the Home Department [2015] EWHC 2148 (Admin), involved an Ethiopian national who had been in the UK since 2003, married a British citizen and had a child. The applicant’s husband left her, and the Home Office accepted in 2013 that she was the sole carer for her British child and that the child would have to leave the UK if the applicant was not permitted to remain. Although the Home Office granted 30 months of Discretionary leave to remain on this basis, there was a 19-month delay in a five-year “derivative rights” residence card under EU law, to which she was entitled to. The Home Office agreed to pay £40,000 in damages for this delay.

In the early 1990’s the case of Francovich v Italy (1991) C-6/90 established that if a member state failed in its obligations to an individual and that failure resulted in the person suffering harm, the member state could be liable for compensation.

Ogieriakhi vMinistry for Justice and Equality and Ors (No 2) [2014] IEHC 582 was the first case to test how the principle in Francovich relates to a damages claim in a case concerning the free movement of EU citizens.

Mr. Ogieriakhi had been married to a French citizen in Ireland, then separated from her for several years while living with an Irish woman. Ultimately he got divorced from his French wife, married the Irish woman he had established a family with, and became an Irish citizen.

But in the meantime, he lost his job in the Irish post office, purely because he was not legally entitled to be employed. He had been denied a renewed residence permit and had failed in his application to be considered a permanent resident on the basis of the EU Citizens’ Directive, which awards that status to third-country national family members of EU citizens after five years’ legal residence.

In light of developments in CJEU case law, he brought a claim for damages for loss of his job, which was the basis for the high court asking the CJEU to clarify the substantive free movement law and damages issues.

The CJEU ruled, following prior case law, that (a) third-country national family members of EU citizens still had free movement rights as long as the marriage was not formally dissolved, and (b) permanent residence could be acquired on the basis of time spent entirely before the deadline of 30 April 2006 to apply the EU Citizens’ Directive, which created the notion of permanent residence. The Irish implementation of the Directive had taken a more restrictive approach on the latter point.

The Irish court ruled that:

“it should be recalled that the Court has also held that EU law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the infringement must be sufficiently serious, and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties..”

Mr. Ogieriakhi was subsequently awarded €100,000 (a sum which amounted to six years’ lost income). The CJEU concluded that he had been dismissed from his job because his residence permit was refused on grounds contrary to EU law. His damages, (i.e., loss of income) were quantifiable and were directly linked to the actions of the defendant.

Although this case holds no precedence in English law (as it is an Irish decision), the guiding principles could be applied to a similar English case.

The answer to this question may depend on what is negotiated if the UK votes to leave the EU in 2017. Remember, both Switzerland and Norway still apply the principle of free movement, despite not being part of the EU, and this may be a compromise Britain has to make to retain its liberal access to the single market. However, the British government will not be required to implement any EU Directives into domestic legislation, will not have to pay attention to decisions handed down by the European Court of Justice and can reverse current domestic legislation incorporating EU Directives.

There is no clear answer to this question as yet; however, we will delve more into this question (and other issues surrounding Britain’s exit from the EU) when the options for Brexit become clearer.

OTS Solicitors has a strong reputation for being one of the best Immigration law firms in London and has years of experience managing both Immigration appeals and judicial review cases. You can make an appointment with one of our experienced Immigration solicitors by phoning our London office on 0203 959 9123. We look forward to hearing more about how we can assist you with your Immigration concerns.