AD v The Home Office

For a Francovich damages claim, the relevant EU provision must confer rights on individuals, the breach must be sufficiently serious, and the breach must directly cause the loss. The Qualification Directive confers individual rights to assessment in accordance with its prescribed criteria, refugee status or subsidiary protection where the criteria are met, and protection against refoulement. The sufficiently serious breach requirement is objective and multifactorial. Relevant considerations include the clarity and precision of the rule, the degree of discretion, the importance of the breached principle, the consequences, and whether any error was excusable. Serious consequences alone are insufficient. Errors by an individual decision-maker, absent bad faith or misfeasance, may fall short of the required threshold. Causation must also be established directly.

The claimant, a Mongolian national, claimed asylum in January 2008. The Home Office rejected the claim, certified it as clearly unfounded under the Nationality, Immigration and Asylum Act 2002, and removed him to Mongolia. He was arrested, detained and convicted there. After returning to the United Kingdom, he claimed asylum again and was recognised as a refugee.

The court was directed to determine preliminary issues on the claimant’s proposed damages claim for breaches of the Qualification Directive and the Procedures Directive. The issues were whether the provisions conferred rights on individuals, whether any breach was sufficiently serious, and whether it directly caused the alleged loss.

1. The court found that the Qualification Directive and the Procedures Directive conferred rights on individuals. Article 4 of the Qualification Directive gave an individual the right to have an international protection application assessed individually and by reference to the prescribed relevant facts. Articles 13 and 18 conferred rights to refugee status or subsidiary protection where the statutory criteria were met. Article 21 imposed a duty to respect non-refoulement.

2. The court treated the sufficiently serious breach requirement as an objective, multifactorial assessment. Relevant factors included the absence or extent of State discretion, the importance of the principle breached, the clarity and precision of the rule, the consequences for the individual, the appropriateness of certification, and the refusal to admit further evidence. No single factor was necessarily decisive. The assessment was fact-sensitive and ordinarily required full evidence.

3. Taking the claimant’s case at its highest, the alleged errors by the individual officer might have been wrong and might have had grave consequences. They nevertheless appeared involuntary and excusable. The officer had considered the principal asylum case, internal relocation and the prospect of a fair trial. The alleged failures therefore did not show that the State had manifestly and gravely disregarded the limits of its powers. The sufficiently serious breach condition was not established.

4. The court also concluded that the causal link was not made out. Articles 13 and 18 created rights once the relevant criteria had been found to be satisfied; that determination occurred only in 2011. Article 4 was principally administrative. The claimant had also not sought judicial review of the 2008 removal directions, which affected the question of direct causation.

5. The court found against the claimant on the preliminary issue. The proposed EU-law damages claim therefore could not proceed on the basis advanced.