FXJ v Secretary of State for the Home Department & Anor

A party to adversarial immigration litigation generally owes no common-law duty of care to the opposing party concerning the conduct or timing of the proceedings. The existence of continuing statutory immigration responsibilities, duties of candour and a shared interest in the correct outcome does not alter that characterisation.

Where a public authority’s alleged negligence concerns failure to confer an immigration benefit, the claim is ordinarily an omissions case. A duty of care requires an established exception, such as assumption of responsibility or creation of a source of danger. Article 8 analysis should ordinarily follow the structured sequence in R (Razgar) v Secretary of State for the Home Department, but a flawed analysis may be harmless where the conclusion that any interference was proportionate is plainly correct.

The appellant, a Somali refugee with serious mental illness, had successfully appealed against refusal of further representations concerning his deportation order. The Upper Tribunal allowed his appeal, but the respondents lodged an out-of-time appeal and withdrew it approximately three months later. During the intervening period, the appellant’s mental health deteriorated and he was compulsorily hospitalised.

Following a trial in the Central London County Court, HHJ Baucher dismissed claims in negligence, misfeasance in public office and under the Human Rights Act 1998. The appellant appealed on the issues of duty of care, breach, misfeasance and Article 8. The central questions were whether the respondents’ conduct was litigation conduct or an exercise of immigration responsibility, whether any duty of care arose, and whether the delay breached Article 8.

1. Appeal dismissed. The respondents did not owe the appellant a duty of care in tort in relation to the conduct of the appeal or the delay in implementing the immigration decision.
2. The relationship between the parties, insofar as the impugned conduct concerned the appeal, was predominantly adversarial litigation. The respondents’ public functions, continuing immigration powers, duties of candour and shared interest in achieving the correct result did not displace that character. The procedural rules and supervision of the tribunal provide protection against unreasonable litigation conduct. The principle in Business Computers International Ltd v Registrar of Companies, approved in Customs and Excise Commissioners v Barclays Bank, therefore applied.
3. The claim was properly characterised as alleging failure to confer the benefit of leave to remain, rather than an act which made the appellant’s position worse. The lodging of an unmeritorious appeal was not an isolated positive act creating a source of danger. Under Robinson v Chief Constable of West Yorkshire Police and N & another v Poole Borough Council, no duty arose absent an established exception such as assumption of responsibility or creation of a source of danger. Advocate General for Scotland v Adiukwu was closely analogous and persuasive.
4. The earlier authorities concerning negligence in the exercise of immigration functions, including Mohamed v Home Office and W v Home Office, had reasoning which was partly outmoded but conclusions consistent with the approach in Poole. The judge below had applied the correct approach.
5. The alternative challenge to the finding of no breach failed. The arguments amounted to disagreement with findings open to the trial judge. The misfeasance claim was inadequately particularised: subjective recklessness and bad faith had not been identified by reference to individual officers, and the pleaded matters did not establish unlawful conduct.
6. The Article 8 reasoning was flawed because the judge short-circuited the structured analysis in R (Razgar) v Secretary of State for the Home Department and conflated engagement with breach. Nevertheless, the judge’s alternative conclusion was that any interference caused by the delay was proportionate to the legitimate aim of maintaining immigration control and appeal rights. That conclusion was not wrong.

• High Court (Queen’s Bench Division): appeal from the Central London County Court dismissed. HHJ Baucher’s dismissal of the negligence, misfeasance and Human Rights Act 1998 claims was upheld.