Baiai & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

Damages under the Human Rights Act 1998 for breaches of Articles 12 and 14 of the Convention are exceptional. A declaration of incompatibility will ordinarily provide just satisfaction, particularly where the claim for non-pecuniary loss is unsupported by cogent corroborative evidence and the claimant would have faced comparable scrutiny and delay under a lawful scheme.

A public authority is not protected by section 6(2) where primary legislation gives it a discretion which it could have exercised compatibly with Convention rights. A proportionate and non-discriminatory system for scrutinising proposed marriages may be lawful, and a fee paid under such a system may not constitute recoverable pecuniary loss.

The linked claims followed an earlier judgment declaring the statutory and administrative regime requiring certain persons subject to immigration control to obtain a Certificate of Approval before marrying incompatible with Articles 12 and 14 of the Convention. The present judgment concerned damages.

The claimants sought recovery of application fees and compensation for distress, humiliation, delay and interference with their ability to marry. The court also recorded that the Secretary of State sought further consideration of the refusal of a Certificate of Approval in one claimant’s case, but that issue was not finally determined in this judgment.

1. Damages refused. The orders made after the earlier declaration of incompatibility constituted just satisfaction. No claimant was entitled to damages.
2. Section 6(2) of the Human Rights Act 1998 did not prevent recovery of the application fee on the Secretary of State’s first ground, because section 25 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 gave a discretion whether to charge, and permitted exemption, reduction or refund. The Secretary of State could therefore have acted differently.
3. Nevertheless, the fees were irrecoverable. A lawful scheme could have required proportionate and non-discriminatory scrutiny of proposed marriages and could have charged an appropriate fee. The claimants were therefore not financially worse off than they would have been had their Convention rights not been infringed.
4. Compensation for non-pecuniary loss under Articles 12 and 14 is unusual and requires exceptional circumstances. The court applied the approach in Anufrijeva v Southwark London Borough Council, [2004] QB 1124, and R (Greenfield) v Secretary of State, [2005] 1 WLR 673. The claimants’ evidence lacked cogent corroboration and did not establish the necessary intensity of distress. Their continuing cohabitation, subsequent marriages or active reconsideration, and independent immigration anxieties were also material.
5. The same conclusion applied to Article 14. Although the discrimination was condemned, section 6(2) excluded claims based on discriminatory features imposed by primary legislation. Claims concerning fees under the Regulations and the Guidance were not excluded on that basis, but still failed because the evidence did not establish compensable loss and declaratory relief was sufficient.
6. The court stated that R (N) v Secretary of State, [2003] EWCA 207 (Admin), could no longer be regarded as good law following the appeal heard with Anufrijeva. The Appendix’s provisional views on unlawfully present applicants were not finally determined.

First instance judgment following an earlier judgment in the same litigation declaring the section 19 regime incompatible with Articles 12 and 14. The present judgment determined the damages claims only.