A & Anor, R (on the application of) v Secretary Of State For Home Department

A public authority may owe a common-law duty of care for negligent administrative implementation of an immigration decision. The duty can arise where the relevant decision has already been made, no policy judgment or discretion remains, the loss is foreseeable and the relationship with the affected individuals is sufficiently proximate. The fact that the loss is purely economic, or that the functions are statutory, is relevant but not determinative. A failure to complete or correctly implement an intended act is not necessarily a pure omission. The statutory scheme must be examined, but it will not ordinarily exclude negligence claims unless it shows an intention to bar compensation.

These conjoined claims arose from admitted Home Office maladministration affecting two asylum-related immigration cases. Mrs A’s passport incorrectly stated that she could not have recourse to public funds, while Mr Kanidagli’s status letter granting exceptional leave to remain was not sent to him. As a result, each temporarily lost welfare benefits.

The proceedings began as judicial review claims and were treated for the preliminary issue as claims for damages. The court was asked to decide, on agreed assumed facts, whether the Secretary of State owed either claimant a duty of care in negligence. The abuse-of-power issue was also raised but was not finally determined.

1. Duty of care. On the assumed facts, the Secretary of State owed each claimant a duty to take reasonable care in the administrative implementation of an immigration decision. The applicable framework was foreseeability, proximity, and whether it was fair, just and reasonable to impose a duty.
2. Operational implementation. The errors occurred after the substantive immigration decisions had been made. No discretionary judgment or policy choice remained. The relevant tasks were to endorse the correct conditions on Mrs A’s passport and to send Mr Kanidagli his status letter. The relationship was therefore materially different from cases involving general public functions, information-gathering, or the exercise of judgment.
3. Omissions and economic loss. The claims were not founded on pure omissions in the relevant sense. Positive steps had been taken but implemented imperfectly. The purely economic nature of the loss was a factor in the proximity and fairness analysis, but the loss was the obvious and inevitable consequence of the administrative errors.
4. Statutory context. The Immigration Act 1971, the Immigration and Asylum Act 1999 and the benefits regulations did not show an intention to exclude common-law negligence claims. The limited power to backdate benefits under the Social Security (Claims and Payments) Regulations 1987 did not preclude a claim for losses outside that scheme.
5. Fairness and alternative remedies. Judicial review could correct the immigration errors but could not restore benefits already lost. Liability would not hamper immigration control or create an unacceptable floodgates problem. It was fair, just and reasonable that the claimants should have a remedy for the losses caused by the negligent implementation.
6. Abuse of power. It was unnecessary to decide the separate abuse-of-power argument. The judge expressed considerable scepticism about a free-standing private-law claim for damages based solely on a public authority’s failure to exercise a power in a particular way.

First-instance determination of the preliminary issue. The proceedings had begun as judicial review claims; one was ordered to continue as an ordinary damages claim, and the other was treated by agreement as proceeding similarly.