Husson v Secretary of State for the Home Department

A judicial review claim may include damages where the claimant continues to seek a genuine public law remedy, including a declaration that administrative delay was unlawful.

Although article 8 does not protect a right to work or to pursue a chosen occupation, it may be engaged where official action wholly or substantially prevents a person from working and has sufficiently serious consequences for private or family life.

A public authority does not owe a common law duty of care merely because it possesses statutory powers or duties. A duty may nevertheless arise through an assumption of responsibility. Where that question depends on disputed facts and developing principles, an arguable negligence claim should ordinarily proceed to substantive determination.

The appellant was granted limited leave to remain with permission to work, but the Secretary of State delayed issuing his biometric residence permit for more than two years. Without the permit or a passport endorsement, he could not demonstrate his entitlement to work to a United Kingdom employer.

The Upper Tribunal refused permission to seek judicial review. It found no jurisdiction to entertain the negligence claim, no arguable article 8 damages claim and no prima facie evidence of loss. The appellant appealed against the refusal insofar as it concerned damages for unlawful delay.

The central issues were whether the Upper Tribunal had jurisdiction to award damages, whether the article 8 and negligence claims were arguable, and whether the tribunal had prematurely refused a discretionary remedy.

1. Appeal allowed on the jurisdiction, article 8 and negligence issues. The appellant continued to seek a declaration that the delay was unlawful. That was a genuine and non-academic public law remedy because it would provide the foundation for the damages claim. The requirement that damages accompany an application for public law relief was therefore satisfied.

2. Article 8 does not confer a right to work or to pursue a chosen occupation. It may nevertheless be engaged where a person is wholly or substantially deprived of the ability to work and the consequences for private or family life are sufficiently serious. The threshold is high. Here, the absence of both a biometric residence permit and a passport endorsement meant that no United Kingdom employer could lawfully employ the appellant. Returning to Mauritius was not a realistic answer, given his lawful residence and family life with his British wife and child.

3. The evidence was limited, but it disclosed an arguable claim. The prospective employer's rejection letter supported an inference of pecuniary loss. The inability to earn, address accumulating debt and support a wife and young child also arguably produced sufficiently serious consequences for private and family life. If a Convention breach clearly causes significant pecuniary loss, damages will usually be assessed where necessary to afford just satisfaction.

4. A public authority does not incur a common law duty of care merely because it has statutory powers or duties. It remains subject to the ordinary principles of negligence unless the governing legislation requires otherwise. An assumption of responsibility arising from conduct undertaken within a statutory scheme may supply an orthodox common law foundation for a duty.

5. The negligence claim was weak but arguable. Foreseeability and proximity could arguably be established. Whether the consent arrangement and subsequent conduct amounted to an assumption of responsibility, and whether a duty would be fair, just and reasonable or inconsistent with the Secretary of State's statutory functions, required fuller factual examination. The claim should not have been terminated at the permission stage.

6. The contention that the Upper Tribunal had prematurely refused a discretionary remedy was rejected. The tribunal had instead concluded that no prima facie damages claim had been established. Permission to apply for judicial review was granted and the claim was remitted to the Upper Tribunal for a substantive hearing.

1. Court of Appeal (Civil Division): Allowed the appeal on the jurisdiction, article 8 and negligence grounds, granted permission to apply for judicial review and remitted the claim for a substantive hearing. The separate ground concerning refusal of a discretionary remedy was dismissed.
2. Upper Tribunal: Deputy Upper Tribunal Judge King refused permission to apply for judicial review, concluding that there was no jurisdiction over the negligence claim and no arguable prima facie claim for human-rights damages.