FXJ v Secretary of State for the Home Department & Anor

The Court of Appeal dismissed the appellant's challenge to the High Court's dismissal of claims in negligence, misfeasance in public office and under section 7 of the Human Rights Act 1998. The central legal principles were the distinction between positive acts that cause harm and omissions that fail to confer a benefit (as explained in Robinson, Michael and Poole), and the proper application of the Article 8 proportionality balancing exercise (adapted from Razgar and related authorities).

The court held that the pleaded case was properly characterised as an omissions claim: the gravamen was the Home Office's failure to make a prompt immigration status decision, not an isolated positive act which created or increased risk of harm. As a consequence no common law duty of care in negligence arose. The Article 8 claim also failed: the delay of about five months was not found to be substantial or culpable in the context, and any interference was justified by the legitimate aims of immigration control and rights of appeal.

Background and parties. The appellant, a Somali national with a severe enduring mental illness, challenged the Home Office after the Upper Tribunal allowed his asylum appeal on 4 December 2015. The appellant alleged that delay in implementing that decision and a late, then withdrawn, application for permission to appeal to the Court of Appeal aggravated his psychiatric condition, causing psychiatric harm. He sued in negligence, misfeasance in public office and under section 7 of the Human Rights Act 1998.

Procedural posture. After a liability-only trial before HHJ Baucher (claims dismissed), the appellant's appeal to the High Court was dismissed by Choudhury J ([2022] EWHC 1531 (QB)). The appellant then appealed to the Court of Appeal.

(i) Nature of the claim / relief sought. Damages were sought in tort for psychiatric injury (negligence and misfeasance) and for breach of Article 8 of the European Convention on Human Rights (section 7 HRA 1998) arising from delay in granting refugee status and from the Home Office's late and ultimately withdrawn application for permission to appeal.

(ii) Issues framed. The appeal raised three principal issues: (1) whether the Home Office owed a common law duty of care to the appellant given the context of litigation and the respondent's statutory role; (2) whether the case involved a positive act making things worse (so as to fall outside the usual rule that omissions to confer benefits do not attract liability), and (3) whether the delay interfered with Article 8 rights and, if so, whether any interference was justified and proportionate.

(iii) Court's reasoning and outcome. The court analysed the pleaded case and medical evidence and applied established Supreme Court authorities (including Michael, Robinson and Poole) distinguishing acts which cause harm from omissions which fail to confer benefits. The judges concluded that the claim was fundamentally about a failure to confer the benefit of prompt leave to remain and therefore fell within the non-liability omissions category; no voluntary assumption of responsibility or creation of risk was established. Reliance on Advocate General for Scotland v Adiukwu was persuasive. The Article 8 claim was considered on an individualised proportionality basis: although the delay aggravated the appellant's relapse, the material did not establish a culpable or substantial interference and the interference was justified by immigration control and the interest in permitting appeals. The Court of Appeal dismissed the appeal.

Appeal dismissed. The Court of Appeal held that (1) the appellant's pleaded negligence claim was properly characterised as an omission to confer a benefit (delay in granting leave) rather than a positive act creating or increasing risk, so no common law duty of care arose absent an applicable exception; (2) the Article 8 claim failed because the five‑month delay was not shown to be a substantial or culpable interference and, on an individualised proportionality assessment, any interference was justified by legitimate immigration aims and rights of appeal.

Appeal to the Court of Appeal from the Queen's Bench Division (Choudhury J) [2022] EWHC 1531 (QB). Underlying liability trial (liability only) before HHJ Baucher (High Court), where claims were dismissed. The appellant had previously succeeded before the Upper Tribunal (decision promulgated 4 December 2015) following an earlier First-tier Tribunal decision (FTT dismissed on 15 May 2015).