Asylum and appeal

Anufrijeva v London Borough of Southwark & Another; R (M) v SSHD; R (N) v SSHD [2003] EWCA Civ 1406, 16 October 2003

These three cases, which the Court of Appeal heard together, raised two difficult issues under the Human Rights Act 1998 - the extent of a state's positive obligations under article 8, and the operation of the Act's remedial regime.

The court had to consider the extent to which article 8 is engaged by the operation of the immigration and asylum system - both the substantive decisions and procedural delays; and the extent to which it is engaged by the provision of welfare support, whether financial or material.

Anufrijeva and her family were asylum seekers provided with accommodation under section 21 of the National Assistance Act.

The claimant's mother, Ms K, was disabled and unable to go down the stairs to the accommodation provided, and she was effectively trapped upstairs.

By the end of almost two years, when Ms K died, accessible accommodation had not been provided.

The judgment records what appear to have been considerable efforts by the council to provide less inappropriate accommodation.

Mr Justice Newman held that although the council's failure to provide suitable accommodation had drastically impaired the quality of family life, there had been no violation of article 8.

Mr N arrived in the UK from Libya in February 2000.

He was eventually granted refugee status in May 2002.

At first instance, Mr Justice Silber found that a series of 'very unusual and very regrettable errors' culminated in a delay of ten months in processing N's appeal against the refusal of asylum.

N's income support was withdrawn after he had failed to return a form that had never been sent.

Not allowed to work, he was forced to sell his furniture and fridge; he had to sleep on the floor, he had no cooking facilities and had to eat cold food.

He had to borrow money, which he could not repay.

Mr Justice Silber had found that it was 'virtually impossible for him to have any meaningful private life for the purposes of article 8', and that article 8 had been violated.

In the third appeal, M was a refugee from Angola who was successful before an immigration appeal tribunal in January 2001 but did not receive confirmation of his grant of asylum until the end of August 2001.

This delayed the chance for his family to seek entry clearance and he was not reunited with his family until the end of November 2002.

Without benefit for five weeks, the claimant had to borrow from friends to live and to send money to his family.

Mr Justice Richards had held that 'looking at what had happened over the period as a whole, in my judgment it did not involve any lack of respect for the claimant's family life'.

The Court of Appeal first asked itself when article 8 imposes positive obligations to provide welfare support, in particular where it is alleged that the authority has been guilty of maladministration.

It accepted that article 8 guarantees a person's right to physical and psychological integrity and the right to develop relationships with other human beings.

This meant that article 8 could impose an obligation to provide welfare support, but the court found it hard to conceive of a situation in which the individual's predicament would trigger this obligation where his circumstances are not sufficiently severe to engage article 3.

And, the court added, where the claimant's predicament arose out of maladministration, inaction alone will not violate article 8.

There must be an element of culpability.

The court's approach to positive obligations under article 8 appears to be more restrictive than that of the European Court of Human Rights.

Although Strasbourg has laid down no specific criteria, the indications are that article 8 may be violated where there is a direct and immediate link between the measures sought and the individual's private and family life.

The Court of Appeal's approach means in effect that article 8 will be violated only where conditions attain the severity outlawed by article 3.

As to remedy, the court made clear its view that damages are not available as of right like damages for tort, but only as a discretionary remedy of last resort.

The Court of Appeal has adopted a restrictive approach to the award of damages.

The Strasbourg court routinely awards damages for distress and frustration caused by administrative delay, and questions of resources do not prevent it from awarding compensation, although the amounts are usually modest.

So the Court of Appeal's less generous approach may fail to provide 'just satisfaction', as the HRA requires.

The court had been concerned about the 'horrendous' cost of this litigation.

It expected that in most cases the question of HRA damages for maladministration would cost substantially more to try than the amount of damages likely to be awarded.

This will sound warning bells in the offices of the Legal Services Commission, which is more likely to refuse applications for funding in such cases in future.

The Court of Appeal suggested guidelines for dealing with such claims:

- The court envisaged that nearly all HRA damages claims for maladministration would be brought in the Administrative Court.

This would normally be by judicial review, and courts would look critically at attempt to use other procedures.

But even private law claims for damages should still be issued in the Administrative Court.

There are two concerns here.

First, the courts should take care not to extend judicial review to cases to that it should not apply.

Moreover, the suggestion that private law proceedings be issued in the Administrative Court will be a puzzling one, for practitioners and court officials alike.

- Before giving permission to apply for judicial review, the Administrative Court judge should require the claimant to explain why it would not be more appropriate to use any available internal complaint procedure or proceed by making a claim to the Police Complaints Authority (PCA) or Local Government Ombudsman (LGO) at least in the first instance.

Again there are certain concerns.

Contrary to the information available to the court, the internal procedures, the LGO and the PCA, particularly cumulatively, take much longer than proceedings in the Administrative Court, which can act quickly when necessary.

Moreover, the ombudsman cannot make findings that an authority has violated a convention right, often an important element of the vindication of such rights.

Ombudsman recommendations of compensation are not binding, and are occasionally rejected.

- If there is a legitimate claim for other relief, permission should if appropriate be limited to that relief and consideration given to deferring permission for the damages claim, adjourning or staying that claim.

If the court concludes that in the light of the other remedies granted, damages are not required to achieve just satisfaction, the claim can be summarily dismissed.

Otherwise, it might be referred to alternative dispute resolution, or remitted to a district judge or master.

If, after all this, a judge gets to hear the matter, the Court of Appeal expressed the hope that a judge might deal with it in a 'summary manner'.

The Court of Appeal intended to lay down guidance on the substance and procedure of HRA damages claims.

However, its judgment leaves many questions unanswered and should be treated with caution.

It should also be limited to its context - allegations of breach of positive obligations arising from maladministration in the social welfare field, and the award of damages for non-pecuniary loss arising from any such breach.

By Stephen Grosz, Bindman & Partners, London