Can the Home Office be sued for extreme delay?
26 May 2020
Many readers will know that the Home Office can on occasion take an extraordinarily long time in processing immigration applications. Sometimes applications take not just months but years, and there is not always a great deal a disgruntled migrant can do about it. It is likely to be the case that a successful Judicial Review action to force the Home Office to act can only happen after really excessive delay.
But - a rather different question - can a migrant sue the Home Office for financial damages as a result of delay? Well, maybe they can sometimes, but the law is difficult.
These issues were recently tested to some depth in a Court of Appeal case called "Husson". Mr Husson, a Mauritian national, was granted leave to remain. The letter of grant stated that he should receive his biometric residence permit within seven working days. The biometric residence permit (otherwise known as a "BRP") is the small plastic card which demonstrates a migrant’s immigration status, and which has in most cases replaced the vignettes that used to be stuck into passports.
Unfortunately it did not arrive within seven days. Mr Husson chased and chased and eventually he received it after two years and one month (this is not a typo). This surely may be a record for the Home Office. But the issuing of a BRP is not the same as making a decision on a visa application. The decision had already been made; this was a purely administrative action and a normally straightforward process.
Mr Husson had been granted leave for 30 months, on the basis of his family life, but when he eventually received the BRP it only had five months’ leave on it. This was in a way logical, because it had taken 25 months for the BRP to arrive, but it must have been additionally annoying. To extend his leave he would have to make the application in just five months’ time. To put it another way, he had paid for 30 months’ leave but only received five months.
But it was not just about this. Mr Husson’s leave gave him the right to work and he had wanted to work, but he claimed that he had not been able to do so because he had not been able to prove to potential employers that he had the right to work because he had no BRP. This had caused him financial loss.
He applied for Judicial Review and damages from the Home Office, but the Home Office resisted. The matter came before the Upper Immigration Tribunal, but which was not very sympathetic. The Tribunal indicated that Mr Husson’s case could potentially only have succeeded on a human rights basis, but that there was not enough evidence about his inability to work for this to succeed.
The case subsequently came before the Court of Appeal. By this stage Mr Husson had abandoned his complaint about the mere five months’ leave and was concentrating solely on the loss of earnings issue.
But the Court of Appeal was rather more helpful to him than the Upper Tribunal had been. It agreed with them that a remedy for loss of earnings potentially lay under human rights principles but it disagreed that there was not enough evidence to support it.
And the court went further than this. It decided that a public law remedy (in this case a declaration that the Home Office had acted unlawfully) might be possible. It also decided that a claim under negligence principles might be possible, but this was evidently rather painful. As the judge who delivered the judgement, Lady Justice Simler, put it:
"…despite my reservations, I am just persuaded that [the Upper Tribunal judge] was wrong in effect to strike out this case at the permission stage and ought to have granted permission on this ground too."
The court remitted the case back to the Upper Tribunal for them to consider it again in the light of the court’s judgement. Depending on what the Upper Tribunal do next Mr Husson may succeed. If he does this could be a very important and significant case for people in his position.
In any event, if you find yourself in this sort of situation you are well advised to instruct a good lawyer. You do not always have to feel helpless In the face of Home Office maladministration.