FXJ v Secretary of State for the Home Department & Anor

A public authority does not ordinarily owe a common-law duty of care merely because its statutory powers could prevent harm. The central distinction is between causing harm and failing to confer a benefit. In the latter case, a duty requires an established exception, such as creating a danger or assuming responsibility. A late appeal which prolongs the withholding of immigration status remains part of the failure to confer that benefit. For Article 8, delay may engage private-life rights. Its proportionality requires an individualised assessment of culpability and consequences. Five months, without separate culpability and without sufficiently evidenced serious impact, was not disproportionate. The appeal was dismissed.

The appellant, a Somali national with severe mental illness, brought claims in negligence, misfeasance in public office and under section 7 of the Human Rights Act 1998. He complained that the Secretary of State delayed implementing an Upper Tribunal decision allowing his asylum appeal and lodged, then withdrew, a late application for permission to appeal.

The trial judge dismissed all claims. Choudhury J dismissed the appellant’s first appeal: [2022] EWHC 1531 (QB), reported as [2023] QB 390. The Court of Appeal considered whether the conduct was harm-causing or merely a failure to confer a benefit, whether a common-law duty of care arose, and whether the delay and its effects constituted a disproportionate interference with Article 8 rights.

Appeal dismissed. Grounds 2 and 3 failed. Ground 1 did not arise.

1. The applicable negligence principles were those identified in Poole Borough Council v GN [2019] UKSC 25 and Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4. Public authorities are generally subject to the same negligence principles as private persons. Statutory powers or duties alone do not create a common-law duty. A duty to protect may arise where the authority creates the source of danger or assumes responsibility.
2. The distinction between causing harm and failing to confer a benefit is fundamental. Borderline cases are resolved by considering the real nature and purpose of the complaint as a matter of fact and degree. The appellant’s pleaded and substantive case concerned delay in granting immigration status. The late appeal prolonged that delay but did not itself create a source of harm or increase a risk. No assumption of responsibility or creation of danger was established. The case was therefore one of failure to confer a benefit, and no duty of care arose. Advocate General for Scotland v Adiukwu [2020] CSIH 47 was a persuasive analogy.
3. For Article 8, the structured questions in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 may be adapted to the particular conduct and interference. In a delay case, the court must identify any culpable delay and assess its length, seriousness, culpability and consequences against the legitimate aims of the administrative system. Reasonable decision-making takes time, and expiry of an appeal time limit does not itself establish culpable delay.
4. Applying that approach, five months was relatively short. There was no breach of legal duty, intention to delay or separate culpability. Although the delay aggravated an existing relapse, the evidence did not establish the quality, duration or substantial seriousness of that aggravation. The conclusion that the delay was not disproportionate and did not breach Article 8 was open to the court. The claim under section 7 of the Human Rights Act 1998 therefore failed.
5. Lady Justice Andrews stated obiter that, if Ground 1 had arisen, the litigation exception would have ceased when the time for seeking permission to appeal expired. Ground 1 was unnecessary to decide.

1. Court of Appeal (Civil Division) dismissed the appeal on Grounds 2 and 3; Ground 1 did not arise.
2. King’s Bench Division Choudhury J dismissed the appellant’s first appeal against the trial judgment: [2022] EWHC 1531 (QB), reported as [2023] QB 390.
3. Trial HHJ Baucher dismissed the negligence, misfeasance and Article 8 claims.