Home Office v Mohammed & Ors

A statutory relationship does not by itself create the proximity required for a common law duty of care. Negligence may arise from acts performed while carrying out a public function, but it may not impinge upon the discharge of the function itself, however incompetently it is performed. The statutory scheme and the availability of alternative redress, including an ombudsman remedy, are relevant to whether a superadded duty is fair, just and reasonable.

Unlawful delay in determining immigration status may nevertheless amount to an unjustified interference with private life under article 8 where its practical consequences materially affect the claimant’s ability to establish ordinary social and personal ties. For limitation purposes, a continuing act falls within section 7(5) of the Human Rights Act 1998 until its final day.

Six Iraqi Kurds alleged that unlawful acts or omissions by the Home Office had delayed grants of indefinite leave to remain. They brought county court claims for breach of statutory duty, negligence and breaches of articles 5 and 8 of the European Convention on Human Rights.

His Honour Judge Oliver-Jones QC struck out the claims based on breach of statutory duty and article 5. He held that the negligence and article 8 claims were capable of succeeding and should proceed to trial. The Home Office appealed against those two holdings. There was no cross-appeal.

The Court of Appeal had to decide whether the pleaded consequences of delayed settled status disclosed a triable article 8 claim and whether the Home Office owed a common law duty of care in administering the immigration system. A subsidiary issue concerned the one-year limitation period under section 7(5) of the Human Rights Act 1998.

1. The appeal was allowed on negligence and dismissed on the article 8 claim. Sedley LJ gave the judgment of the court. Thomas and Hooper LJJ agreed. The surviving proceedings were to be remitted and transferred to the High Court.

2. The article 8 claims were triable. The respondents alleged that unlawful delay in granting settled status prevented them from working, obtaining mainstream benefits, travelling, opening bank accounts, obtaining driving licences and progressing towards citizenship. Those pleaded consequences were capable of amounting to a material violation of the right to respect for private life. The alleged unlawfulness also made it arguable that the Home Office could not rely on article 8(2).

3. For section 7(5) of the Human Rights Act 1998, the date of a continuing act includes its final day. Claims issued within one year after the pleaded end of the continuing breach were therefore in time. Claimants outside that period would need to rely on the court’s equitable power to enlarge time under section 7(5)(b), which had to be considered on remission.

4. The negligence claims disclosed no duty of care. As established by Stovin v Wise and Gorringe v Calderdale MBC, proximity arising from a statutory relationship does not by itself create such a duty. Although negligence may occur incidentally while a statutory function is being performed, it may not impinge upon the discharge of the public function itself, however incompetently or negligently it is performed.

5. The administration of leave to remain under section 4(1) of the Immigration Act 1971 was the public function in issue. The statutory and policy framework did not create a common law assumption of responsibility towards individual applicants. W v Home Office and Rowley v Secretary of State for Work and Pensions supported the conclusion that a superadded private-law duty would be inconsistent with the proper performance of the statutory responsibilities. The contrary reasoning in R (Kanidagli) v Home Secretary was not accepted.

6. The availability of other redress is relevant to whether a novel duty is fair, just and reasonable. Its absence does not itself create a duty, as demonstrated by the Jain litigation. Here the respondents could pursue internal complaints and then seek investigation and a recommendation of compensation from the Parliamentary Ombudsman. Nothing in the circumstances called for an incremental extension of common law liability.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 351, unanimously allowed the Home Office’s appeal against the continuation of the negligence claims, but dismissed its appeal concerning the article 8 claims. The surviving proceedings were remitted for transfer to the High Court.

2. Coventry County Court: His Honour Judge Oliver-Jones QC struck out the claims for breach of statutory duty and breach of article 5, but refused to strike out or give summary judgment on the negligence and article 8 claims.