AB & Anor v Home Office

An unmarried partner of an EEA national has no automatic right of residence under the Citizens’ Directive. The host state must facilitate entry and residence under national law, examine the applicant’s personal circumstances extensively, and give reasons for refusal. The resulting domestic discretion does not ordinarily create a private claim for damages for breach of statutory duty or EU-law damages. Mere maladministration, delay, carelessness or good-faith error does not amount to misfeasance in public office without the required intent or knowledge. A government department is bound to honour an undertaking given to a superior court and must do so promptly, but breach of that undertaking does not necessarily give the beneficiary a private contractual remedy. Administrative delay infringes Convention Article 8 only where culpability and sufficiently serious, foreseeable consequences are established.

The claimants sought damages from the Home Office. The second claimant, a Bolivian national and unmarried partner of the first claimant, a Swedish citizen, applied for an EEA residence card in March 2008. The Home Office delayed, refused the application, and later undertook before the Upper Tribunal to issue the card. It did not issue the card until November 2010.

The claimants alleged breach of EU-law and domestic statutory duties, misfeasance in public office, breach of the undertaking, and infringement of Article 8 of the Convention. The central issues were the nature of an unmarried partner’s rights, the legal consequences of delay and maladministration, and whether the pleaded causes of action entitled the claimants to damages.

1. Claim dismissed. The claimants established no cause of action supporting compensation.
2. Articles 20 and 21 TFEU confer residence rights subject to the limitations and conditions in the Citizens’ Directive. An unmarried partner falls outside the automatic definition of family member. Article 3(2) instead requires the host state to facilitate entry and residence under national legislation after an extensive examination of the personal circumstances. Regulation 17 therefore gives the Secretary of State a discretion in an extended-family-member case, rather than imposing the mandatory six-month duty applicable to a qualifying family member.
3. The claim for EU-law damages failed. The provisions relied upon did not apply to the second claimant, and the applicable provisions were not shown to confer a right to residence or to the grant of residence. In any event, delay and maladministration did not amount to a sufficiently serious breach.
4. The Home Office’s handling of the application was seriously open to criticism. It misaddressed correspondence, failed to resend documents, relied on an erroneous factual basis, and took about 19 months to decide the application. Those matters were maladministration, but good-faith mistakes and delay did not establish misfeasance in public office.
5. The undertaking given by the Home Office advocate to the Upper Tribunal bound the Crown. It had to be honoured promptly unless set aside or discharged by that tribunal. The Home Office had no proper justification for delaying implementation until formal promulgation of the determination. Nevertheless, enforcement lay with the Upper Tribunal, and the High Court had no disciplinary jurisdiction over a non-solicitor advocate in respect of an undertaking given to another superior court. The undertaking was not a contractual promise to the claimants.
6. Article 8 may impose positive obligations, but maladministration infringes it only where there is culpability and sufficiently serious, foreseeable prejudice. Here the family continued living together in the United Kingdom, and the delay was temporary and reversible. No Article 8 breach was established.
7. Alternatively, the judge assessed loss. The second claimant’s hypothetical loss of earnings would have been £18,800, or £1,800 for the post-undertaking period alone. No separate award would have been made to the first claimant.