Atapattu, R. (On the Application of) v The Secretary of State for the Home Department  EWHC 1388 (Admin) - read judgment
1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.
This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.
The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
Facts of the case
The claimant was a Sri Lankan national who worked in the merchant navy as a chief officer. He had applied for a visa to enter the United Kingdom to attend college and qualify as a ship’s master. Entry clearance was twice refused but the Asylum and Immigration Tribunal (AIT) allowed his appeal against those decisions. In January 2010 the claimant re-applied by submitting his passport to the British High Commission in Sri Lanka. The secretary of state did not, however, respond and neither granted him entry nor returned his passport. The claimant applied for judicial review, seeking an order directing the secretary of state to grant entry clearance and to return his passport. The secretary of state subsequently gave an undertaking to issue him a student visa and to return his passport once he had provided the necessary documents. The passport was returned in August 2010, but the claimant pursued his claim, seeking to recover damages. He contended that the retention of his passport meant that he was not able to pursue employment in the merchant navy, which caused actual loss of earnings, and that since the failure to grant a visa meant that he could not pursue a course of study in the UK, he had been prevented from qualifying as a ship’s master, which caused loss of enhanced earnings.
He submitted that:
(a) the wrongful retention of his passport made the secretary of state liable for damages for conversion under the Torts (Interference with Goods) Act 1977;
(b) the secretary of state was under a common law duty of care to deal with his re-submitted application for entry clearance within a reasonable time, and was in breach of that duty;
(c) by failing to return his passport or grant entry clearance, the secretary of state had wrongfully interfered with his right to respect for his private life under Article 8 of the European Convention on Human Rights and his right to peaceful enjoyment of his possessions under Article 1 Protocol 1.
Application for judicial review granted on the conversion basis only.
Claims for conversion required that a party had title to sue, an unconditional demand for the goods or item’s return had been made, and such request had been refused or delivery of the item had failed. Since it was possession of property, not ownership, which gave title to sue for possession, the claimant’s right to possession of his passport was sufficient to give him title to sue for conversion and his letters to the secretary of state in May 2010 amounted to an unconditional demand for the return of the passport, with or without a visa. For there to be conversion by “keeping”, there had to be conduct which amounted to deliberate withholding or interference, which was commonly found in a demand followed by a refusal. Where demand or refusal was relied upon, it had to be clear or unequivocal, but not necessarily in express words. On the facts of the instant case, since the secretary of state had clearly and unequivocally refused to return the claimant’s passport to him, she was liable for conversion of the passport with effect from May 2010. He was, accordingly, entitled to damages for that element of the claim.
The negligence claim failed. In dealing with an application for entry clearance, the secretary of state was exercising a statutory power, rather than a duty, and the alternative remedy of a complaint to the Parliamentary Ombudsman was available. The secretary of state did not, therefore, owe the claimant a common duty of care to consider and deal with his re-submitted application for a visa within a reasonable time.
The claimant’s Convention claims also failed. There was no evidence that the withholding of the claimant’s passport had any other particular effect on his ability to enjoy his private life, and Article 8 was not breached in that respect. The mere fact that a passport was a tangible object was not sufficient to constitute it as a “possession” for the purposes of Article 1 Protocol 1 of the Convention. The essential characteristic of the passport on which the claimant relied was that it allowed him to work in the merchant navy: in that respect, it was an intangible object which was not marketable nor had a monetary value. In that way, it was not an “asset” and thus not a “possession” within the meaning of Article 1 Protocol 1.
The claimant may have won on conversion but for our purposes this judgment is more interesting for its discussion of liability of public authorities in negligence, and of course the failed claims under the Human Rights Act.
Statutory functions and common law duties
The position on liability of pubic authority never seems to be entirely clear in these disputes. This is because the question of whether a common law duty does arise depends on a number of indeterminate factors, such as the general dimensions of negligence itself (like nailing jelly to a wall), specific considerations arising from fast changing public law principles, and considerations of the particular statutory framework. And as soon as a judicial decision settles the matter on one provision or another the law changes and the chase starts again. It is one of the joys of public law, and one that has much exercised judicial and academic minds for the past fifteen years: see para 98 of this judgment for a useful list of cases since (the now discredited) X(Minors) v Bedfordshire CC was decided. Just as an example of how this chimera eludes definition and exposition, try following the valiant efforts of Morris QC to summarise the position:
The criteria by which to make such a judgment have been stated in various ways: for example, it has been said that certain types of decision are “non-justiciable” and one test for determining what is justiciable has been to distinguish between “policy” decisions and “operational/administrative implementation” decisions. But this approach has not been uniformly adopted. More recently, these factors have been regarded as part of the analysis under the third “fair just and reasonable” stage of the Caparo test. 
Enough to bring on a headache.
So what of this case? The claimant contended that the secretary of state owed him a common law duty of care and that, in failing to grant, or at least to consider, his visa application, made on 13 January 2010, at all or within a reasonable time, she breached that duty. He submitted that the primary loss to flow from this breach was the loss of enhanced earnings that he would have earned upon employment, with the benefit of a master’s qualification. In so far as it is said that the breach of duty also comprised the failure to return his passport, then the claim for damages for negligence also covers actual loss of earnings, to the same extent as regards the claim for conversion.
The legislative framework is important here because it defines the scope of the defendant’s liability under the negligence claim. Section 3(1) of the Immigration Act 1971 provides that a person who is not a British citizen shall not enter the UK unless given leave to enter and that he may be given leave to enter (or to remain) either for a limited or an indefinite period, and subject to conditions. By Section 4 of the 1971 Act the power to give or refuse leave to enter is exercised by immigration officers.
Breach of public law, yes -
The claimant it will be remembered had won his appeal to the AIT in respect of the initial refusal of entry. Although he accepted that the secretary of state was not under any absolute duty, whether statutory or by way of public law generally, to implement the immigration judge’s decision and to grant the application without more, he pointed to the “clear” internal policy of the Home Office to grant such applications in certain circumstances, an argument which found favour with the deputy judge, who found that the defendant was at least under a duty:
i) to consider the re-submitted application;
ii) at the very least, to do so within a reasonable time;
iii) in doing so, to apply its own internal guidance, unless there was good reason to depart from that guidance
- referring, of course, to the 2011 Supreme Court decision in Lumba (WL) v Secretary of State for the Home Office which is the latest authority on the public law duty of adherence to published policy (discussed here). For these (and supplementary) reasons the judge held that the defendant was in breach of public law principles, although he declined to specify which – whether it was “characterised as being unlawfulness, or Wednesbury unreasonable or a breach of a legitimate expectation or unfairness amounting to an abuse of power or improper failure to exercise a power.’
But does that give rise to a private law duty?
That of course was not the end of the story because the claimant was seeking damages, not a mere declaration, and this meant that he would have had to establish that there was a private law duty of care. Since entry clearance is expressed as a power not a duty, a common law duty of care could not be founded simply upon a failure – even a Wednesbury unreasonable failure – to provide some benefit which a public authority has power (or even a public law duty) to provide: see Gorringe v Calderdale MBC . But nor could such a duty be excluded. The question really turns on whether, in exercising the power, the public authority enters into a relationship, with or assumes some sort of responsibility, towards identifiable individuals, those who, moreover, are foreseeably affected by the decisions in question.
The exercise by immigration authorities of their powers has often been attacked on negligence grounds but these attacks have rarely succeeded; they are generally seen not to be the kind of case in which a statutory function itself carries a civil cause of action for its breach. As Sedley LJ said in Home Office v Mohammed, ”it is on principle highly unusual for the courts to graft a duty of care on to it” -
It is public law (including, I would interpose, the law of legitimate expectation, which today is the principal means by which policy is enforced or waived) which sets the remedies for breach – remedies which do not include damages. Save in particular circumstances unlike those we are concerned with, the common law has not recognised a concurrent duty of care outside or alongside the statutory framework, even if there is no other means of claiming damages. 
So that was the end of the negligence claim; the Court of Appeal reasoning in Mohammed had effectively killed it dead.
Human Rights claim: Article 8 and Article 1 Protocol 1 ECHR
Although the original Immigration Appeals Tribunal had found for the claimant under Article 8, that claim was articulated as a “right to personal development “, protected by that provision. This was a characterisation of Article 8 first set out in the case of Pretty v United Kingdom in 2002. But what the present submission boiled down to was a right to work and a right to choose a particular profession, which are not protected by the Convention. There is a clutch of cases which suggest the contrary, but R (Countryside Alliance) v. Attorney General  1 AC 719 describe them as “extreme on the facts” (see Sidabras v Lithuania, one of the cases upon which the claimant relied. In this case, Article 8 does not give a right to choose one’s particular occupation or to pursue it once chosen. The retention of the passport did not interfere with the claimant’s right to respect for his private life.
The second limb of the claim based on Article 8 met with a similarly wintry reception, with the deputy judge referring to Blake J in CDS (Brazil) v SSHD  UKUT 00205 (IAC), where in considering Article 8 in the context of a student migrant who had already been studying in the UK, he stated (at §17):
It is difficult to imagine how the private life of someone with no prior nexus to the United Kingdom would require admission outside the rules for the purpose of study. There is no human right to come to the United Kingdom for education or other purposes of truly voluntary migration.
As for the characterisation of his Article 8 rights as “personal development”, the judge doubted whether merely enhancing one’s qualifications within a particular chosen career path has any impact upon a person’s ability to develop relationships with other human beings. Being prevented from gaining further qualifications or even from obtaining a particular appointment within a career path neither substantially hinders a person’s ability to find work generally nor, more significantly, necessarily to develop personal relationships within the work environment.
Turning to the Article 1 Protocol 1 claim regarding his passport, the deputy judge was of the view that the mere fact that his passport was a tangible object was not sufficient to constitute it as a “possession” for the purposes of Article 1 Protocol 1. The essence of a passport in general is that it represents some form of intangible privilege or entitlement for the holder. On the particular facts of the present case, the essential characteristic of the passport upon which he seeks to rely here is that it allows him to earn his living in the merchant navy. There is no such right recognised by the Convention implicit in any of its provisions, so this claim failed, not without some illuminating discussion of these “borderline” A1P1 cases such as R (Malik) v. Waltham Forest NHS Primary Care Trust  EWCA Civ 265 and R (Nicholds) v Security Industry Authority  EWHC 1792 (Admin)
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