MD (China) & Ors, R (on the application of) v Secretary of State for the Home Department

The five claimants are each eventually successful asylum seekers who suffered unacceptable delay through maladministration in the provision on behalf of the Secretary of State of the status papers to which their successful asylum application entitled them. They began these judicial review proceedings with the main purpose of obtaining these papers, and in each case that has now been accomplished. They also claim damages, compensation or just satisfaction for the consequences of the delay, asserting that their rights under Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol had been violated. Speaking generally, they claimed that the effects of not having status papers included that they were unable to work, unable to claim full welfare benefits, unable to travel abroad, and unable to have bank accounts or driving licences, and that if might delay their ability to apply for British citizenship. The respective delays in the provision of status papers were 10½ months, 5½ months, 9 months, 10 months and 7 months. Mr Drabble QC, representing them, reckoned that 4 months was the longest unobjectionable period, after which there would be at the very least a legitimate complaint of maladministration attracting compensation. The amount of individual pecuniary loss claimed is in the order of £1,800 calculated by reference to the full period of the delay less 28 days when the benefits of an asylum seeker continued to be payable. Mr Drabble reckoned that 500 Euros was the kind of level of non-pecuniary award which the European Court of Human Rights in Strasburg might award for an established breach of Article 8 of this kind. We are told that the costs of both sides in these proceedings so far are in the order of £110,000.

It was entirely legitimate to start these proceedings with the main practical aim of obtaining the requisite status papers. That has long since been achieved. The conduct of the proceedings on behalf of the Secretary of State was initially inept. But by the time the matter came for hearing before Treacy J on 5^th May 2010, the Secretary of State had in each case openly admitted that the delays had been unacceptable, apologised and set in train an internal complaints procedure with a view to assessing and paying compensation. The Secretary of State had also taken administrative steps to see that delays of this unacceptable kind were avoided for the future. Treacey J held that the position was very much improved. The claimants did not in the main co-operate with the operation of the complaints procedure, contending, no doubt on advice, that irrespective of compensation and notwithstanding the Secretary of State’s acceptance of the substance of their complaints and apologies, they were entitled to findings by the court that their Article 8 rights had been violated. The Secretary of State has understandably not been prepared to accept this, since the question whether in a particular case rights under Article 8 have been violated is fact specific, and it would be a question for investigation whether in the case of each individual a necessary minimum level of severity of interference with private or family life had occurred. It was not appropriate for administrators who were not trained lawyers to be asked to make admissions of this kind. Nor was it necessary, since to categorise admittedly unacceptable delay as a violation of Article 8 would have no material effect on the level of compensation – Mr Drabble did not contend that it would – and it could not seriously be contended that characterising admittedly unacceptable delay as a violation of Article 8 would be of any material benefit at all to the claimants.

So it was that Treacy J decided that the proceedings had become pointless and that they should be stayed – not dismissed – so that an application might be made to revive them, if the complaints procedure was unable to resolve some issue which really did proportionately require the court’s decision. Treacy J’s judgment may be found at [2010] EWHC 1015 (Admin) and it may be referred to for greater detail than this judgment need contain. Laws LJ was persuaded to give the claimants permission to appeal. The appeal has engendered a lot of paper and expense.

The complaints procedure is internal to the UK Borders Agency, and we understand that it is not in its complete written form readily accessible to the public. But its existence and availability are sufficiently known for it to handle over 10,000 complaints a year. The written guidance is very detailed. It provides for dealing with complaints concerning delay in the delivery of a service. It provides for the assessment and payment of actual financial loss of the kinds said to have been suffered in these cases. It provides for apology and explanation and for non-financial loss where maladministration has directly caused a person exceptional distress, embarrassment, inconvenience, damage to health and so forth. The compensation provisions therefore cover all the main matters of which these claimants complain. There is provision for a review of a first decision. The procedure is not independent, but it does provide a structured means of addressing complaints, which ought to be used in appropriate cases, of which these are examples. It is capable of providing everything material which these claims aim to achieve by a much more economical means than court proceedings. If the complainant is dissatisfied with the outcome, there is the possibility of the case being referred at the instance of a Member of Parliament to the Parliamentary Ombudsman.

As we have said, Treacy J regarded the judicial review proceedings as being pointless by the time the case reached him. The judge related the facts and observed that the offers of compensation could be viewed as generous, since, even if the claimants were to succeed in showing that the delays were unlawful and that there was a breach of Article 8, an award of damages would not necessarily follow. The claimants have their status papers, which must be regarded as the primary aim of the litigation. The judge accepted submissions with reference to Anufrijevav Southwark London Borough Council [2004] 2 WLR 603 that, in cases of delay in administrative process, there will only be an infringement of Article 8 where the consequences for the complainant are serious or amount to causing him serious prejudice. The issue before the court would be fact specific. The judge noted with reference to Rule 54.4 of the Civil Procedure Rules that courts will not normally grant permission to apply for judicial review where there is an adequate alternative remedy which the claimants could use or could have used, and that permission may be refused where the claim is academic. It was true that cases referred to involved statutory complaints schemes, but that was not necessarily determinative. Cowl v Plymouth City Council [2001] EWCA Civ. 1935, which we refer to below, was an example of a more informal alternative remedy. He referred also to paragraphs 79 to 81 of Anufrijeva. The judge expressed great concern about the disproportionate costs which continuing the proceedings would engender. In response to Mr Drabble’s submission that the claimants had a good prospect of establishing unlawfulness and breach of Article 8 which the Secretary of State’s letters did not acknowledge and that they were entitled to the vindication of a declaration by the court, the judge was doubtful whether there was any significance to the claimants in the difference between a judicial declaration and the acknowledgement made in the letters. It would be wholly disproportionate to permit the proceedings to continue merely to obtain a judicial declaration. If obtaining a declaration was paramount, it would be hard to see when alternative dispute resolution could ever be used. The judge did not consider that the legal principles were seriously in issue. It was their application to the facts which would be the battleground.

The judge ended his judgment by saying that the Secretary of State’s way of publicising the internal complaints scheme could be criticised as insufficiently clear and transparent. That did not, however, affect his decision because the claimants’ advisors were aware of the scheme, but deliberately and consciously chose not to use it.

In paragraphs 79 to 81 of Anufrijeva, to which the judge referred, Lord Woolf CJ, giving the judgment of the court, noted that in each case the combined costs of both sides were many times greater than the damages that could reasonably have been anticipated, and that the total costs of both sides, including the appeal, were truly horrendous. It was even more worrying that all parties were funded, as in the present case, out of public funds. Before us, Mr Drabble acknowledged that a lawyer advising a claimant who was funding his own litigation could not conscientiously advise the client to proceed with a claim of this kind, once its main aims had in substance been achieved, simply to obtain such satisfaction as there might be in obtaining a bare declaration of unlawfulness. Lord Woolf said that the reality was that claims for damages under the Human Rights Act for maladministration, if pursued in court by adversarial proceedings, were likely to cost substantially more to try than the amount of damages likely to be awarded. Furthermore, there would often be no certainty that an entitlement to damages would be established at all. Asking what could be done to avoid a repetition of this situation in future cases, Lord Woolf suggested that permission to bring the proceedings should not be given until the claimant had explained why it was not appropriate to use any available internal complaints procedure or to proceed by reference to an Ombudsman. If such cases had to come to court, they should be determined by an appropriate level of judge, normally in no more than half a day, and by reference to no more than three authorities.

The Practice Note in R (Cowl) v Plymouth City Council [2002] 1 WLR 803 also illustrates the importance, even in disputes between public authorities and members of the public, of avoiding litigation wherever possible. Both sides must be acutely conscious of the contribution which alternative dispute resolution can make to resolving disputes in a manner which both meets the needs of the parties and the public and saves time, expense and stress. It was too narrow an approach to suppose that complainants were entitled to proceed with the claim for judicial review unless a complaints procedure on offer technically constituted an alternative remedy which would fulfil all the functions of judicial review. The court should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between the parties can be resolved outside the litigation process.

Mr Drabble submits, first, that the claimants are entitled to a determination by the court in judicial review proceedings that, as is contended, the delays resulted in an unlawful violation of their rights under Article 8 of the Convention; and that, if the court declines to proceed so to determine, there will be a denial of an effective remedy in breach of Article 13. He says that Strasbourg often lays stress on the vindication of a person’s human rights by a suitable declaration, even if there is no other finding or remedy. In our judgment, neither limb of this submission is persuasive on the facts of this case. Appropriate extra-judicial acknowledgement is capable of being adequate vindication without even an award of compensation – see for example R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 – and in the present cases the judge specifically preserved the possibility of a judicial remedy by staying the proceedings, not dismissing them. In any event, the court should not countenance expensive proceedings which have no real purpose and where the supposedly vindicatory benefit to the claimant is on the facts illusory. The lawyers may be interested in debating the academic point, but the claimants wanted their status papers, which they now have, and perhaps a public acceptance of unacceptable delay and an apology, which they also have, and compensation which is available to them. It is not suggested that the continuation of the proceedings is justified to persuade the Secretary of State to reform an administrative system which still needs reforming, since, as the judge found, effective steps have been taken in that respect.

Mr Drabble next submits that the Secretary of State is proceeding under a material error of law relating to the proper approach to Article 8, exemplified by Treasury Counsel’s approach and submissions in another case, Home Office v Mohammed CA B2/2010/2331. He says that continued reliance in these cases on Anufrijeva is out of date. This is no reason for prolonging the claims, since, whatever may be Treasury Counsel’s stance in Mohammed, Mr Payne in the present case accepted before the judge, and accepts before us, that delay in issuing status papers is capable, depending on the facts, of giving rise to a violation of Article 8. Whether it does in an individual case is a matter of individual factual investigation. If compensation is to be paid, its amount will not be affected by a formal declaration that Article 8 has been violated, since no one suggests that the basis for calculating the compensation would be any different. Another largely academic question of defining for cases such as this a general test when Article 8 might apply and be violated is not going to be assisted by prolonging the present cases. This should be done, if at all, in a case where it would make a real difference to the outcome, as for instance where the maladministration is contested.

Mr Drabble then submits that these are test cases, as directed by Owen J on 8^th December 2009, which should be allowed to continue as such. We were shown a schedule of some 37 other cases started in the Administrative Court in 2009, but the details in the schedule do not support the notion that a decision in the cases now before this court will help resolve the 37 cases. For 11 of the cases, it is said that the claimant has received his or her papers and that the Secretary of State has conceded the claim with costs. It is evident that these cases have concluded. In most of the others, it is said that the claimant has received his or her papers, but requires a declaration that the delay was unlawful. It is evident, therefore, in the light of the availability of the complaints procedure that these other cases remain in existence for the purpose of obtaining a bare declaration of little material value, and that declarations in the cases now before this court will not assist those cases, since no point of principle will be determined.

Mr Drabble then submits with reference to Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 that the court does not oblige unwilling parties to refer disputes to an alternative dispute resolution process. Halsey was however a case of civil litigation, where a second defendant who successfully resisted a claim for contribution was awarded his costs, even though he had refused to engage in mediation. That is not comparable with these judicial review proceedings, in which, for the reasons which we have explained, the claims which the claimants want to pursue have become pointless and the costs of proceeding with the judicial review proceedings are already out of all proportion with any material benefit which the proceedings could now bring to the claimants.

In our judgment, the judge was entirely correct to decide that the continuation of these proceedings is pointless and disproportionately expensive. Although there may be circumstances in which inviting the court to declare that a person’s Article 8 rights have been violated is justified by a legitimate need to establish that and for vindication, the circumstances of the present cases do not begin to provide such justification. The claimants’ status papers have long since been issued. The Secretary of State has openly accepted that the delay was unacceptable maladministration and has apologised without reservation. Steps have been taken to rectify the administrative deficiencies which led to the delays. A properly structured complaints procedure is available and has been set in motion to assess compensation. Establishing that the admittedly unacceptable delay resulted, if it did, in a violation of Article 8 rights will not materially enhance the existing law, will not enlarge the ambit of compensation, will not assist in the disposal of other cases, and will not provide the claimants with greater vindication or comfort than they already have. It would constitute an egregious accretion of human rights paraphernalia to a body of learning which is already at risk of overburden, whose real value to the law would be minimal and to the claimants nil. The money already spent on these proceedings after the Secretary of State conceded the case has been disproportionate. To spend further money would be horrendous, to use Lord Woolf’s expressive adjective.

For these reasons, the appeals fail and are dismissed.