Mambakasa, R (On the Application Of) v Secretary of State for the Home Department [2003] EWHC 319 (Admin)

Case No CO/3140/01

[2003] EWHC 319 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday 3 March 2003

Strand,

London, WC2A 2LL

Before

THE HONOURABLE MR JUSTICE RICHARDS

Between

R (Mambakasa)Claimant

Secretary of State for the Home DepartmentDefendant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Andrew Nicol QC and Duran Seddon (instructed by Hackney Community Law Centre)

for Claimant

Steven Kovats and Jason Coppel (instructed by The Treasury Solicitor) for Defendant

Judgment

[1]The claimant is a refugee from Angola. In August 2001 he was granted asylum and indefinite leave to enter the United Kingdom. In November 2002 members of his family were granted entry clearance to join him in this country. The claimant contends that there was an unlawful delay in granting him refugee status and that further delay was caused by the unlawful impeding of his family's applications for entry clearance, thereby delaying his reunion with his family. His case is that this amounted to a breach of his rights under

Article 8 of the European Convention on Human Rights

. He seeks an award of damages pursuant to section 8 of the Human Rights Act 1998.

Facts: the grant of asylum to the claimant

[2]The claimant left Angola and arrived in the United Kingdom in May 1996. He claimed asylum. His claim was refused by the Secretary of State and an appeal to an adjudicator was dismissed. Leave to appeal to the Immigration Appeal Tribunal (IAT) was initially refused, but was subsequently granted following a judicial review challenge and an order by consent quashing the initial refusal. The IAT dismissed the substantive appeal. There was then a successful appeal to the Court of Appeal, which remitted the case to a differently constituted IAT. The fresh hearing before the IAT took place on 8 January 2001.

[3]Before dealing with what happened at that hearing and thereafter, I should mention two points. First, the claimant's family for present purposes consists of his mother and his three children (a son said to have been born on 3 July 1986, a second son born on 7 August 1991 and a daughter born on 10 November 1995). The claimant left them behind when he left Angola in 1996. In 1998, as a result of the civil war in Angola, the family travelled to Kinshasa, where they remained until the recent grant of entry clearance to come to the United Kingdom. In 1999 the claimant re-established contact with them and began to give them financial support.

[4]Secondly, the claimant had a psychotic illness, schizophrenia, for which he had been receiving medication. A medical report before the special adjudicator stated that the claimant had been experiencing hallucinations and delusional ideas but that his condition had improved dramatically as a result of medication. A further report, dated 16 November 2000, was before the IAT and stated:

“[The claimant] has suffered from an acute psychotic episode and, although he made a good recovery, his mental state has recently deteriorated as a result of non-compliance with medication and continuing life stresses. He is now re-established on medication, and I hope will attend further outpatient follow-up. In view of his partial relapse, it is clear that [he] will have to take antipsychotic medication for the foreseeable future and that stressful life events are likely to have a prejudicial effect on his mental state.”

[5]Returning to the narrative, at the hearing on 8 January 2001 the chairman indicated that the IAT proposed to allow the appeal. The Home Office Presenting Officer, Mr Banks, did not oppose that course. The claimant's solicitor, Ms Saunders of the Refugee Legal Centre, then discussed the question of family reunion with Mr Banks. There is some difference of recollection as to what precisely was said; and there is no contemporaneous note, since owing to pressure of work Mr Banks failed to place any minute on the claimant's file as to the outcome of the hearing. Ms Saunders says that Mr Banks asked for details of the claimant's family and agreed to take steps to contact the British Embassy in Kinshasa before the IAT's determination was promulgated, so as to expedite the processing of the visa applications. Mr Banks's recollection is that he suggested to Ms Saunders that she send him details of the claimant's family with a view to the details being forwarded to the British Embassy in Kinshasa together with the IAT's determination once the determination was promulgated, so as to speed things up thereafter. Resolution of the factual dispute is not necessary for my decision and would be impossible in the absence of cross-examination. If anything were to turn on it, however, I would have to proceed on the basis of the Secretary of State's evidence since the claimant would have failed to satisfy me of its case on this point.

[6]Shortly after the hearing Ms Saunders informed the claimant of the successful outcome of the hearing. The claimant believed that in consequence his family would shortly be joining him.

[7]Ms Saunders wrote to Mr Banks on 11 January 2001 to give him details of the claimant's family. The letter also noted that the claimant's mother had been sole carer of the children for almost 5 years and should not now be separated from them; and that in view of the claimant's mental health difficulties she was likely to play an important part in his children's day to day care in the United Kingdom in any event. Although the date-stamp shows that the letter was received by the Presenting Officers' Unit on 15 January, for some unknown reason it did not reach Mr Banks's desk before his transfer to another department on 30 March.

[8]The IAT's determination allowing the appeal was promulgated on 26 February 2001. It was received at the Presenting Officers' Unit on 27 February. It did not, however, reach the claimant's file. It was either mislaid in the post room or misfiled. It was only later, as explained below, that the absence of the determination from the file was noticed and a further copy was obtained.

[9]On 22 March 2001 the Refugee Legal Centre (though Ms Saunders herself dropped out of the picture) wrote to the Immigration and Nationality Directorate enclosing a copy of the IAT's determination, which was mistakenly referred to as an adjudicator's determination, and requesting that the claimant be granted indefinite leave to enter as a refugee. The letter went on to request that, if a status letter could not be issued in the very near future, the claimant be issued with a letter confirming the grant of refugee status. It was said that he required one or the other in order to proceed with his family reunion application. A copy of the letter was received in the Presenting Officers' Unit on 28 March. Again, however, the letter was not placed on the claimant's file at the time.

[10]During a routine inquiry in April the Refugee Legal Centre was advised that the claimant's file remained at the Presenting Officers' Unit so that there was no prospect of status papers being issued in the foreseeable future. This prompted a letter before action, sent to the Treasury Solicitor on 18 May.

[11]On 21 May, apparently as part of a clear-up exercise following the transfer of Mr Banks and not prompted by the letter before action, an official in the Presenting Officers' Unit noted that the claimant's case had come to her and requested a copy of the IAT's most recent determination. It is not entirely clear how much of the claimant's file she had: although Mr Banks left on 30 March, the file was marked out to him from 3 January to 10 July, his explanation for this being that he was unable to clear his desk before he left.

[12]The requested copy of the IAT's determination was received and was placed on the claimant's file on 26 June, under cover of a copy of the Refugee Legal Centre's letter of 18 May which had by this time been received in the Presenting Officers' Unit.

[13]On 11 July the claimant's file was sent to the National Implementation Unit in Leeds for the preparation of a letter granting the claimant refugee status. It arrived on 12 July. The evidence is that in normal circumstances at that time it would have taken approximately a further three months for a status letter to be drafted. As a result of the delay which had previously occurred in the claimant's case, however, his file was given priority when received by the Unit. This led to the despatch of letters in August, as explained below.

[14]Before moving to that, reference should be made at this point in the chronology to the payment of benefits. As a result of a separate administrative error, this time working in his favour, the claimant had continued to receive income support at the urgent cases rate of 90% notwithstanding that he ceased to be entitled to it upon the Secretary of State's refusal of his asylum claim in October 1996. This remained the position until 27 July 2001, when he was informed by the Benefits Agency that his income support had been stopped and would not be paid until he was able to produce papers confirming his status as a refugee. As explained later in this judgment, he was not entitled at that point to asylum support. The result was that he was without any benefits from 27 July until the grant of refugee status at the end of August 2001, when he became entitled once more to income support, back-dated to the time when payments had been stopped. During the period when he was without benefits he relied on friends to give him food. He had no cash and borrowed £50 from a friend to send to his family in Kinshasa. He says in his witness statement that he could not believe that he was being treated in this way even though he had won his appeal, and he found the experience very degrading and humiliating.

[15]On 30 July the Refugee Legal Centre sent a further letter before action. The present proceedings for judicial review were then issued on 8 August.

[16]On 9 August the Refugee Legal Centre received a copy of a letter dated 2 August from the National Implementation Unit to the claimant, stating that "a decision has now been taken that you will be granted indefinite leave to enter the United Kingdom as a refugee …". The date on which the application was recorded as having been determined was stated to be 2 August 2001. The letter went on:

“This is not a formal notification of the decision. That will follow from the Immigration Service. …. You will not be eligible to apply for Home Office Travel Documents [i.e. for travel by the claimant himself rather than by his family] until you receive the letter from the Immigration Service containing official confirmation of your immigration status.”

[17]The practice was for the National Implementation Unit to draft a formal status letter at the same time as sending out a letter in those terms, and then to attach it to the file and forward it to the port for validation and service. In the normal course of events the delay between drafting of the status letter and its service on the refugee was about two weeks. Unfortunately, in this case yet another mishap occurred. The file, instead of being sent to the port, was sent directly to the Immigration Fingerprint Bureau for the claimant's fingerprints to be removed from the relevant database. It was then sent to "lay-by", a store where files are sent on completion of all action. Following the issue of the judicial review proceedings the matter was investigated, the file was found and recovered from lay-by, it was seen that the status letter had not been issued, and steps were taken to rectify the position.

[18]The result was a letter dated 31 August 2001 giving the claimant official confirmation of his refugee status, i.e. his formal status letter. A copy was faxed to the claimant's solicitor on the same day. The solicitor moved from the Refugee Legal Centre to Hackney Community Law Centre on 31 August but continued to act for the claimant. A hard copy of the status letter was received by her at Hackney Community Law Centre on 4 September.

Facts: the grant of entry clearance to his family

[19]Following receipt of his status letter, the claimant sent that document and Ms Saunders's letter of 11 January 2001 to his family in Kinshasa. The information subsequently received over the telephone by the claimant (in November 2001) and by his solicitor (in April 2002) from the claimant's mother is that in September she, together with the three children and a lady from the church, made the two hour journey to the British Embassy in Kinshasa. When she got to speak to a member of staff, whom she described as a receptionist, she was asked if they had travel documents. On saying that they did not, she was told that the Embassy would not deal with them any further and they should go to the office of the UNHCR in Kinshasa for assistance. This encounter at the Embassy lasted less than five minutes. The receptionist was unhelpful and unwilling to read the documents presented to her or to refer the mother to another member of staff.

[20]The Embassy has no record of that visit, but that does not take matters much further: the very complaint that the claimant makes is that there was a failure to accept (and therefore to record) the family reunion applications. Plainly, however, the absence of direct evidence makes it important to exercise a degree of caution in relation to the visit. The fact that early on there was some confusion about what was said at the Embassy reinforces the need for caution. In particular, the solicitor did not realise for some time that, according to the mother, the family had been asked for travel documents; and the solicitor originally understood that the family had been told to go to an organisation called the "Service (or Society) for the Protection of Refugees", whereas there is no such organisation and it was later realised that the referral was to the UNHCR office in Kinshasa. Nevertheless I see no reason to doubt the evidence that the visit took place and, having regard to the evidence as a whole, I consider it likely that the content of the visit was in broad terms as communicated by the claimant's mother.

[21]The further information from the claimant's mother was that she then went to the UNHCR office in the third or fourth week of October. She did not go earlier because the lady assisting her was unable to accompany her before then. When she went there, she was told that the office did not issue travel documents and that she should contact a lawyer in the United Kingdom.

[22]The claimant learnt of those events when he telephoned his mother in November. He then telephoned his solicitor, who arranged to see him in early December. He told her that his mother had seen the Service for the Protection of Refugees which wanted the solicitor to send a fax confirming that the claimant was a client. Having been unable to make any contact with any such agency, the solicitor then wrote by letter and e-mail on 7 December 2001 to the Home Office's Joint Entry Clearance Unit (JECU), explaining the problems encountered by the claimant's family and requesting urgent assistance. The letter stated that the claimant's mother had been referred to an unknown Service for the Protection of Refugees. The letter made no reference to a request for travel documents since it was not appreciated at the time that such a request had been made.

[23]On 10 December JECU sent an e-mail to the claimant's solicitor, stating that the inquiry had been forwarded to the Entry Clearance Officer (ECO) in Kinshasa for reply. The ECO replied by e-mail on 14 December, stating that people who wished to put in an application at the Embassy were directed to the visa section and saw the immigration officer rather than a receptionist, and that the Service for the Protection of Refugees did not exist.

[24]In response, the claimant's solicitor asked the ECO exactly what documents were required so that the claimant's family could make their applications and these could be dealt with expeditiously. The ECO's reply was that the applicant could come to the office every Monday and Wednesday to be advised about which documents were required.

[25]By letter dated 3 January 2002, copied to JECU, the claimant's solicitor wrote to the British Embassy in Kinshasa, referring to the exchange of e-mails, enclosing the status letter and giving details of the applications being made by the claimant's family. The letter referred to the previous request to be told what particular documents were required in order that the applications could be made and dealt with. It summarised the history and mentioned that the solicitor had now discovered that the Service for the Protection of Refugees was in fact the UNHCR office in Kinshasa. It stated that the claimant's mother and friend were advised that fees were payable in order that the applications could be made, but it pointed out that since the claimant was a refugee no fee was payable. The letter concluded by requesting the Embassy to facilitate the applications as a matter of some urgency.

[26]After a holding reply on 17 January, JECU informed the claimant's solicitor by letter dated 6 February that the visa section in the British Embassy in Kinshasa had advised that it had no record of the claimant's family making an application for entry clearance, that the staff were not aware of having referred anyone to the Society for the Protection of Refugees (there was no mention of the UNHCR office), and that the ECO had however advised that "the family must hold valid passports or refugee travel documents as the visa section would otherwise be unable to issue entry clearance". This was the first indication to the claimant's solicitor of the need for passports or travel documents.

[27]In a letter dated 11 February to JECU the claimant's solicitor expressed frustration at the lack of progress and referred back to the concerns expressed on 3 January. The letter stated that the reason why the family had not been able to make applications would now seem to be that they did not have travel documents, but that possession of a travel document was not a prerequisite to the making of a valid application. The only requirement was to pay a fee, which was not applicable in this case because the claimant had been recognised as a refugee. The solicitor's experience in cases where the family did not have travel documents was that the diplomatic post concerned had issued its own "GV3" travel document on which the visa or entry clearance was endorsed. The letter requested an assurance that the claimant's family would be given every assistance to facilitate lodging and processing of their applications for visas for family reunion without further delay, failing which further legal proceedings were threatened.

[28]The solicitor sent a further letter dated 27 February, requesting a response by 1 March. On 1 March the Treasury Solicitor wrote to the solicitor stating that if the Embassy was provided with contact details for the claimant's "wife", an appointment would be made for her to attend the Embassy "to complete the relevant forms, be interviewed and provide any further evidence that may be required to process the entry clearance application". The letter repeated that local staff had no recollection of sending anyone to the Society for the Protection of Refugees. There was no mention of the UNHCR office or of the position with regard to travel documents.

[29]On the same day, 1 March, JECU asked the British Embassy in Kinshasa to treat the claimant's solicitor's letter of 3 January as a formal application for entry clearance. On 6 March JECU wrote to the solicitor to confirm that an application would be considered.

[30]On 11 March the claimant's solicitor sought confirmation from the Treasury Solicitor that the absence of travel documents would not be an impediment to the processing of the applications or issuing of the visas. She also referred back to the earlier letter explaining that the reference to the Service for the Protection of Refugees was in fact a reference to the UNHCR office in Kinshasa, and she gave the contact details for the claimant's mother (making clear that the applicants were the mother and children, not the wife).

[31]By letter dated 8 April to the Treasury Solicitor the claimant's solicitor expressed concern that contact had not yet been made with the claimant's family. The letter went on to ask, for the purposes of the amended claim in the judicial review proceedings, whether it remained the ECO's position (as communicated in JECU's letter of 6 February) that the family must produce travel documents. In that connection the letter stated inter alia that the claimant's family did not have travel documents and were unable to produce them because they were not able to present themselves to the Angolan Embassy in Kinshasa: they did not wish to disclose the fact that they needed travel documents in order to be reunited with a refugee sponsor in the United Kingdom. Concerns were also expressed about the time that would be taken for passports to be issued.

[32]The Treasury Solicitor replied on 9 April, stating that "satisfactory identification documents" would need to be produced and that the ECO would then be entitled to make further enquiries. If the family reunion applications were successful, "certificates of identification for visa purposes" (an apparent reference to form GV3) might be provided, to which visas could be attached. The reason why an appointment with the claimant's family had not been arranged was that there was currently no ECO in Kinshasa. A temporary ECO was expected on 11 April and the applications of the claimant's family would then be dealt with as a priority.

[33]Contact was eventually made with the claimant's family and interviews with the mother and elder son took place in late April and early May.

[34]In evidence filed on behalf of the Secretary of State in the judicial review proceedings in June 2002, it was stated inter alia that(i) it is an important condition of the grant of entry clearance that an individual proves their identity by means of a valid passport or other document satisfactorily establishing identity and nationality (referred to by way of shorthand as travel documents);

(ii) it is expected that an individual will approach their own national government for a passport or other acceptable travel documentation, and where travel documents cannot be obtained from the national government they can be provided by international agencies, in particular the UNHCR; and

(iii) the primary function of a GV3 is to replace, for visa purposes, a travel document issued by an authority which is not recognised by the United Kingdom; and the issue of a GV3 to a person who does not hold a travel document is exceptional, the policy being that a GV3 may be issued to individuals whose identity can be proved by other means (e.g. DNA testing) and who, for justifiable reasons, are genuinely unable to obtain travel documents for themselves.

[35]In the case of the claimant's family the question of obtaining passports from the Angolan Embassy had been touched on further in early May but in the event was not pursued. What happened was that blood samples were taken and DNA profiling was carried out in order to establish the family links. Other investigations were also made. The issue of visas and GV3s for the family was then authorised on 22 November and the claimant's representatives were informed of this on 26 November 2002. The Secretary of State's evidence is that the decision to issue the visas on GV3s was taken for pragmatic reasons, namely to avoid further delay, and in spite of the lack of evidence that the applicants had attempted to obtain travel documents elsewhere. Thus it was done by way of exception to the policy described above.

Issues

[36]The ultimate questions in the case are(i) whether there was a breach of Article 8; if so,

(ii) whether the claimant is entitled to an award of damages for such a breach; and, if so,

(iii) what sum should be awarded by way of damages.

[37]The arguments before me dealt first and very fully, however, with whether as a matter of domestic law apart from the Convention there was unlawful delay in granting refugee status and/or whether delay was caused by the unlawful impeding of his family's applications for entry clearance. It is convenient to adopt the same approach in this judgment. The issue of unlawfulness as a matter of domestic law is not in itself determinative of the claim, but it bears heavily on the Article 8 issues in two ways. The same matters are relevant to the question whether there was an interference with the claimant's "right to respect for his … family life" within Article 8(1); and, if Article 8(1) is engaged, the lawfulness of the Secretary of State's conduct is relevant to the question of justification within Article 8(2) and in particular to whether the interference was "in accordance with the law".

Whether the delay in granting refugee status was unlawful

[38]As regards the delay in granting refugee status, the case advanced by Mr Nicol QC on behalf of the claimant is that the relevant period of delay was from 8 January 2001, when the IAT indicated that it proposed to allow the claimant's asylum appeal, to 31 August 2001, when the claimant's status letter was issued and faxed to his solicitor. The case advanced by Mr Kovats on behalf of the Secretary of State is that the relevant period was from 27 February 2001, when the IAT's determination allowing the asylum appeal was received by the Presenting Officers' Unit, to 9 August 2001, when the claimant's solicitor received a copy of the letter of 2 August stating that a decision had been taken to grant the claimant indefinite leave to enter as a refugee. Whatever period is taken, the claimant's case is that there was unlawful delay and the Secretary of State's case is that, although there was regrettable delay, it was not unlawful.

[39]In my judgment there can be no question of unlawful delay prior to receipt of the IAT's determination on 27 February 2001. The Secretary of State was entitled to await receipt of that determination before granting the claimant refugee status. It is true that at the hearing on 8 January the Presenting Officer did not oppose the IAT's indication that the appeal would be allowed. It must have been clear that the IAT's intention was to allow the appeal outright and not to remit it to another adjudicator. The discussion between the claimant's solicitor and the Presenting Officer about the family's visa applications was on the basis that the claimant was going to gain refugee status. Nonetheless there was no duty on the Secretary of State to recognise the claimant as a refugee in advance of the IAT's determination. His own decision had been to refuse asylum, he had not withdrawn that decision and it remained effective unless and until the claimant's appeal was allowed by the IAT. I reject a contention advanced by Mr Nicol in reply that by reason of the events of 8 January there was an express or implied decision by the Secretary of State that the claimant was entitled to refugee status. Further, the IAT's determination was based on the tribunal's own assessment of the merits of the claim, not on any concession by the Secretary of State.

[40]On the other hand, the fact that it was known on 8 January that the appeal was to be allowed and that, on the Presenting Officer's own recollection of events, he had suggested that details of the family be sent to him so as to speed things up once the IAT's determination was promulgated are relevant to the question of how long it was reasonable for the Secretary of State to take in issuing the claimant's status papers following receipt of the IAT's determination. I come back to that below.

[41]I take the view that the relevant period of delay ended with the issue of the formal status letter on 31 August, rather than with the letter of 2 August (received on 9 August) stating that a decision had been taken that the claimant would be granted indefinite leave to enter. I reach that conclusion because, as the letter of 2 August itself made clear, it was not a formal notification of the decision. The claimant himself was not eligible to apply for travel documents until he received the status letter. Nor was he eligible for income support until that time. It was only on 31 August that effect was given to the IAT determination by the actual grant of refugee status and indefinite leave to enter, thereby entitling the claimant to the various rights and benefits consequent upon such grant.

[42]One of the matters raised is whether the claimant's family could have relied on the letter of 2 August in order to proceed with their family reunion applications. The Secretary of State's contention is that they could have done so and that the claimant cannot therefore rely on any further delay between the date of receipt of the letter and the formal notification of the grant of refugee status on 31 August. The short answer to that would appear to be that rule 30 of the Immigration Rules provides that an application for entry clearance is not made until the required fee is paid; in the case of the family of a recognised refugee the requirement for a fee will be waived; but on the evidence (including in particular a letter dated 9 August 2002 from a section known as UK Visas to the General Secretary of the Immigration Law Practitioners' Association) a formal status letter is needed if the fee is to be waived. Accordingly the family needed the status letter in order to make their applications.

[43]Lest I am wrong about the need for a status letter in order to secure waiver of the fee, I shall also consider the wider picture. There is evidence from the claimant's solicitor and other practitioners that in their experience a diplomatic post would be unlikely to process an application for family reunion with a refugee sponsor in the absence of a formal status letter. The evidence on behalf of the Secretary of State, on the other hand, is that a letter of the kind issued on 2 August is sufficient for an application to be made and the process to be started, albeit that an ECO would require sight of a formal status letter before an entry clearance was actually granted. The view taken in the Refugee Legal Centre's letter of 22 March 2001, but subsequently disavowed by the Centre, was that a letter of the kind issued on 2 August would be sufficient for an application to be made. Certain of the other documents before the court seem to me to cut both ways. The conclusion I reach on the evidence as a whole is that, although the formal position may be as set out in the Secretary of State's evidence, the likelihood in practice is that the British Embassy would not have accepted the applications of the claimant's family for processing in the absence of a formal status letter. In any event it seems to me, in the light of the general understanding of the position as revealed by the evidence of the practitioners, that the claimant acted reasonably in waiting for the formal status letter before sending the documents to his family with a view to their making their family reunion applications.

[44]For those reasons the formal status letter of 31 August remains in my view the relevant end-point when assessing the period of delay for the purposes of this part of the case.

[45]It follows that in my judgment there was a material delay of about 6 months, from the end of February to the end of August, in the grant of refugee status and indefinite leave to enter. The next question is whether the Secretary of State acted unlawfully in delaying that long.

[46]No specific provision is made by statute or in the rules as to the period within which a formal grant of refugee status and indefinite leave to enter is to be made following the acceptance of a claim for asylum.

[47]The one relevant statutory provision concerns the time allowed under the provisions relating to asylum support. Part VI of the Immigration and Asylum Act 1999 empowers the Secretary of State to provide support (which is provided in practice by the National Asylum Support Service or "NASS") for persons who have claimed asylum but whose claims to asylum have not been determined. Section 94(3) provides that a claim for asylum is determined at the end of "such period … as may be prescribed", beginning with the day on which the appeal against the Secretary of State's decision is disposed of. At the material time a period of 14 days was prescribed for the purposes of s.94(3): regulation 2(2) of the Asylum Support Regulations 2000. From 8 April 2002 a period of 28 days was prescribed: regulation 3 of the Asylum Support (Amendment) Regulations 2002, which substituted a new regulation 2(2) in the 2000 Regulations. The object of this period, as stated in 1999 by a Home Office Minister to the Special Standing Committee considering the Immigration and Asylum Bill, is to allow time for the successful asylum seeker to move to the social security system or to make arrangements for work.

[48]Until such time as the grant of refugee status is made, however, an asylum seeker, as a person subject to immigration control, is not entitled to mainstream benefits such as income support or housing benefit: section 115 of the Immigration and Asylum Act 1999. Accordingly, where the grant of refugee status has not been made within the prescribed period, the individual concerned falls between two stools. He is no longer entitled to NASS support but equally he is not yet entitled to mainstream benefits. In R (Arbab) v. Secretary of State for the Home Department

[2002] EWHC 1249 (Admin)

at para 22, Jackson J described this as "a lacuna between the two statutory schemes". It is a lacuna that in my view is not filled by other provisions to which reference was made in argument, namely the power of the Secretary of State to provide "hard cases" support under section 4 of the 1999 Act and the power of local authorities to provide support in extreme cases under section 21 of the National Assistance Act 1948 as amended by section 116 of the 1999 Act.

[49]Plainly the prescribed period does not constitute in itself a period within which the Secretary of State is required to grant refugee status, not least because, as was observed by Elias J in R v. Secretary of State for the Home Department, ex parte Mersin [2000] INLR 511 at 519B-C, subsequent social security legislation cannot affect the proper construction of the Secretary of State's powers with regard to the grant of refugee status and indefinite leave to enter. Nevertheless the prescribed period is in my view a relevant consideration in determining the length of time within which it is reasonable to expect the Secretary of State to grant refugee status after the IAT has allowed an appeal. I return to this in my conclusions on this issue.

[50]In Mersin Elias J held that a delay of some 7½ months between final disposal of the claimant's successful appeal to a special adjudicator and the grant of refugee status was unlawful. He stated: “In my opinion there is a clear duty on the Secretary of State to give effect to the special adjudicator's decision. Even if he can refuse to do so in the event of changed circumstances or because there is another country to which the applicant can be sent, there is still a duty unless and until that situation arises. It would wholly undermine the rule of law if he could simply ignore the ruling of the special adjudicator without appealing it …. Nor in my opinion could he deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing. In my judgment, once the adjudicator had determined the application in the applicant's favour, the applicant had a right to be granted refugee status, at least unless and until there was a change in the position …. I should add that even if the applicant does not, properly analysed, have a right in the strict sense, in my view his position is sufficiently akin to a right (whether described as a legitimate expectation or not) for the same public law principles to apply” (518G-519A).

[51]Elias J went on to consider whether the delay constituted a breach of that duty. He identified three particular features of the case. First, the delays were not deliberate but were solely the result of the administrative procedures taking their course. Secondly, whilst no doubt shortage of staff had in part explained the delay, a very important reason for the delay was that no distinction was made at the relevant time between those who had successfully appealed an initial refusal and the very much larger number of people whose applications for asylum were still being considered. Thirdly, the Secretary of State accepted that the delays in the case and other similar cases were unacceptable, though contending that they were not unlawful. The contention was in essence that the department must be entitled to organise its work in such manner as it thought administratively appropriate and in the absence of irrationality the court should not interfere. After extensive citation from R v. Secretary of State, ex parte Phansopkar

[1976] QB 606

, however, Elias J pointed to the need to distinguish between those with an established right and other categories of case. He concluded: “In my judgment if someone has established the right to some benefit of significance, as the right to refugee status and indefinite leave surely is, and all that is required is the formal grant of that benefit (in the absence at least of a change in circumstances since the right was acquired or other exceptional circumstances), then it is incumbent upon the authority concerned to confer the benefit without unreasonable delay. The resources available to the authority will be part of the circumstances which can be taken into account when determining whether the delay is reasonable or not. However, if the authority fails to have regard to the fact that a right is in issue, it will have failed to take into account a relevant factor and will be acting unlawfully. In this case the respondent ought to have treated the applicant and those in a similar position differently to other categories of case. The failure to do so both rendered the decision unlawful in traditional Wednesbury terms and meant that the refugee status was not granted within a reasonable period” (522C-E).

[52]In Arbab (cited above) Jackson J held that a delay of about 2 months from final disposal of the claimant's appeal to an adjudicator until issue of the status letter was not unlawful. As to the legal principles he adopted Elias J's statements in Mersin, but he referred to four matters in support of his conclusion that the delay in Arbab was not unlawful:(i) the delay of 2 months was distinctly shorter than the delay of 7½ months in Mersin;

(ii) the evidence before him as to the organisation of work by the Home Office did not reveal that the administrators or case workers had been ignoring any relevant factor, and in so far as delays occurred they arose from failures by staff to process their backlog of cases, or from failures of management, or from the exigencies of particular cases;

(iii) there was no evidence that the claimant suffered any loss or prejudice as a result of the delay, since owing to administrative errors he had continued to receive income support and housing benefit even though he was not entitled to them; and

(iv) the claimant was not even aware that he fell within the lacuna between support under the NASS scheme and entitlement to mainstream benefits.

[53]Both in Mersin and in Arbab the court refused applications for relief directed at the general administrative arrangements that led to such delays. In each case, however, the nature of the arrangements operating at the time was a relevant factor in determining the lawfulness of the delay in the individual case. In both cases the court had extensive evidence before it concerning the scale of the problem faced by the Secretary of State in processing asylum claims and the steps that had been taken to tackle delays. Much, if not all, of that evidence has also been included in the material filed in the present proceedings.

[54]In Arbab Jackson J summarised the effect of the evidence before him as follows (para 41):

“In at least the vast majority of cases the processing of asylum claims after a favourable adjudicator's decision is a purely clerical exercise. However, procedures have to be followed and that exercise takes time. Those who apply for asylum at a port have their files kept at that port. Their cases have to be referred to immigration officers at the relevant port for the grant of leave to enter. Successful asylum seekers who have entered this country illegally are processed centrally by the National Implementation Unit of the Home Office. They receive indefinite leave to remain, rather than leave to enter. Overall the system for issuing status letters has operated poorly in the past. Improvements have been made by the Secretary of State but, nevertheless, unacceptable delays do still occur in some cases. The Secretary of State's staff have many other tasks in addition to those which have come under scrutiny in the present case. The Home Office is tackling the instant problem as best it can with the limited resources which are available. Furthermore, in the case of successful asylum seekers who fall into the lacuna, these individuals are in practice allowed to benefit from the NASS support scheme despite the statutory prohibition contained in section 94 of the 1999 Act.”

[55]Of particular relevance to the present case is evidence concerning the improvements effected by the National Implementation Unit, which commenced operations on 1 February 2001. It inherited a backlog of cases which had meant that substantial delays were being experienced by some individuals between an appeal decision in their favour and corresponding immigration action being taken to reflect the appeal result. The section from which the Unit inherited the work was processing cases at the rate of about 50 per month. By October 2001, however, the Unit was processing about 700 cases per month and the backlog had been reduced very substantially: cases in which appeal determinations had been promulgated in July had been processed by the end of September. The backlog was cleared by early January 2002.

[56]As to the overall period of delay between the date of the determination in a successful appeal and the sending of a formal status letter to a successful appellant, it was stated on 12 March 2002 in a written answer to a Parliamentary Question:

“There have been delays in implementing allowed appeals but additional resources have now been provided and the majority of cases should now be being processed within 24 days of determination.”

[57]Against that legal and factual background, Mr Nicol submits on behalf of the claimant that the delay in the present case was unlawful. The nature of the task to be performed, as in Mersin, was essentially administrative. It could have been completed within a matter of minutes. As in Mersin, the right or legitimate expectation was to refugee status, with the significant benefits which attach to that status (see Mersin at 517A-H). Most significant of those benefits in the present case was the claimant's right to be reunited with his family in the United Kingdom. The claimant's pressing concern to be reunited with his family had been made clear at the hearing on 8 January 2001 and in subsequent correspondence. It was also known that the claimant's mental health was precarious. The fact that some 3½ years had already elapsed in the processing of the claimant's asylum application is not a cause of complaint in itself but provided a context where there was a need for extra expedition in the issuing of status papers. The Immigration Rules made provision for the children of refugees to be reunited with them in the United Kingdom and it was inevitable in the circumstances that the discretion to admit other family members would be exercised in favour of the claimant's mother, as was eventually the case. Further, the delay resulted in the claimant's exclusion from welfare support since he fell into the lacuna identified in Arbab.

[58]As to the system for processing applications, Mr Nicol submits that although there is evidence that things were improving by January 2002, it cannot be said that the problem had been addressed over the period relevant to this case, i.e. the first half of 2001. There was moreover a quite astonishing catalogue of errors. Mr Banks failed to minute what had happened at the hearing on 8 January, so that there was no possibility of action being considered promptly. Ms Saunders's letter of 11 January was received at the Presenting Officers' Unit but did not find its way to Mr Banks before he left at the end of March. The IAT determination was promulgated on 26 February but did not reach the claimant's file until a further copy was called for in June. The Refugee Legal Centre's letter of 22 March was mislaid or misfiled. The claimant's file was marked out to Mr Banks from 3 January to 10 July although Mr Banks left at the end of March. The claimant should in the end have got his status letter on about 16 August but the file was sent to the wrong place. All of this compounded the tremendous delay in carrying out a simple administrative task.

[59]Those matters, it is submitted, combine to make the delay in this case unlawful, whatever the precise period of delay that is considered relevant for this purpose.

[60]For the Secretary of State, Mr Kovats submits that the lawfulness of the delay depends on the effect of the delay in the particular case. A delay does not become unlawful simply because the prescribed period for the purposes of section 94(3) of the 1999 Act has expired, bringing to an end entitlement to NASS support. In this case the claimant continued to receive benefits until late July 2001 and became eligible for back-dated payment of benefits once his status letter was issued. So far as concerns the claimant's psychiatric condition, there was nothing to show that it was liable to get worse or did in fact get worse as a result of the delay in issuing the status letter.

[61]Mr Kovats accepts that some delay was caused by human error, for which the Secretary of State has unreservedly apologised. But for the various errors, the status letter would have been issued on or about 12 July 2001 (a calculation based on evidence as to the normal time taken during the relevant period for a file to be sent to the National Implementation Unit and to be processed within that Unit). Human error can therefore be said to have effectively resulted in additional delay from about 12 July to 2 August (when the letter informing the claimant of the decision to grant refugee status was issued) or to 31 August (if, as I have held, the relevant end point is the actual status letter). The balance was systemic delay, in relation to which Mr Kovats relies on the evidence to which I have referred already. He submits that the Secretary of State has been faced with a huge and increasing number of asylum claims; it has understandably him taken some time to master this workload; he has approached the task in a lawful and responsible manner; he has allocated substantially increased resources to the task and his staff have worked very hard; inevitably there have been examples of significant delays, which are regrettable; and, sadly, examples of significant delays may continue to occur; but it would be disproportionate to require the Secretary of State to have in place a system that was able instantly to cope with any and every increase in workload; resources for public services are limited and to provide a gold standard service in one area would simply exacerbate problems in other areas.

[62]With regard to the point that the task required in relation to the claimant following his successful appeal was a simple administrative task that should take a matter of minutes, Mr Kovats submits that under the system in place at the material time the claimant was in a queue of those with successful appeals (by contrast with the position criticised in Mersin) and that it would generally be inappropriate to allow people to jump that queue. It would be arbitrary to allow the queue to be jumped without exceptional reasons for doing so, and there were no such exceptional reasons in the present case.

[63]For all those reasons Mr Kovats submits that the delay in the present was not unlawful.

[64]In considering those rival submissions I have borne firmly in mind that the issue at this stage is not whether the delay constituted a breach of Article 8, but simply whether there was a breach of the duty on the Secretary of State to act without unreasonable delay in granting the claimant the refugee status to which he had a right or legitimate expectation as a result of his successful appeal to the IAT.

[65]In my judgment the delay of about 6 months was unreasonable and did amount to a breach of duty on the part of the Secretary of State. It is not necessary to decide at precisely what point the delay became unlawful, but I take the view that if the matter had come before the court on an application for judicial review during at least the last 2 months or so of the period of delay the court would have been likely to grant declaratory relief (subject to the discretionary withholding of relief once the letter of 2 August indicated that a decision had been taken and that a status letter was about to be issued).

[66]In reaching that conclusion I have been influenced in particular by the following considerations: i) The claimant's individual circumstances called for prompt consideration of his case following receipt of the IAT's determination. There had already been a long delay as a result of the drawn-out appellate process. It was known that the appeal would be allowed. It was known that the claimant was very concerned to be reunited with his family. The discussion that the Presenting Officer had with the claimant's solicitor at the hearing on 8 January indicated an appreciation on his part of the desirability of expedition. ii) As to the claimant's mental health, there was no evidence at the time that it was liable to deteriorate if refugee status was not granted quickly. There is, however, later evidence that the overall delay did in fact have an adverse effect on him, which is of relevance when considering actual prejudice (see below). Thus in a report dated 22 March 2002 a consultant psychiatrist, Dr Coleman, states: “Any delay in allowing him to be supported by his mother and children and any other close family member would certainly have had a damaging effect on his mental health. In particular given his history and his state on examination I have no doubt that his raised expectations in early 2001 combined with the delay since that time have had and continue to have a serious prejudicial [effect] on [his] mental health causing him severe stress and anxiety. It is inevitable that the delay hinders his rehabilitation and increases the likelihood of future relapses. ” iii) The relatively short period of 14 days or, with effect from 8 April 2002, 28 days prescribed for the purposes of section 94(3) of the 1999 Act, after which entitlement to NASS support comes to an end, is an indicator of the period within which it is reasonable to expect a decision normally to be taken. A person whose appeal has been successful ought not to be left for any lengthy period in the lacuna between the ending of NASS support and entitlement to mainstream benefits. iv) Loss of benefits did not, however, cause substantial prejudice in this particular case since, owing to a separate error, the claimant continued to receive income support after the Secretary of State's refusal of his asylum application in October 1996 and through to late July 2001. He then had a relatively short period without support before his entitlement resumed, with retrospective effect, on the grant of refugee status at the end of August 2001. I have borne in mind his evidence as to the difficulty and distress that even this period caused him. In all the circumstances I think it unnecessary to resolve the further argument as to whether he would have qualified for support under section 4 of the 1999 Act or section 21 of the National Assistance Act 1948, as amended by section 116 of the 1999 Act, had he applied for it. v) In terms of actual prejudice to the claimant, it is the delay in achieving reunion with his family, coupled with the effect on his mental health (see above), that carries particular weight. vi) The grant of refugee status following the IAT's determination ought in this case to have been a simple administrative task. There was nothing in the circumstances of the case to require any substantial exercise of judgment. The discussion at the hearing on 8 January shows that the grant was expected to follow as a matter of course. vii) Whether the circumstances of the claimant's case would have been sufficiently exceptional to justify queue-jumping does not need to be decided. His case was not placed in a queue at all, nor was any consideration given to whether it should be accelerated (at least, until the file was sent to the National Implementation Unit in July). It simply got lost in the system. viii) In determining whether a delay has been unreasonable, it is right in my view to consider the reasons for the delay as well as the various other considerations to which I have referred. In this case those reasons consisted largely of human error, though substantial delay would have resulted in any event from the normal operation of the system at the material time. ix) As to human error, although one might be reluctant to castigate as unreasonable a delay caused by an isolated human error, the number and nature of the errors in this case prompt a different reaction. The Secretary of State cannot in my view rely on such a catalogue of errors as providing a reasonable justification for the delay in dealing with the claimant's case. That consideration is reinforced by the fact that, as is clear from the Annual Reports of the Parliamentary Ombudsman (to which I make fuller reference in the context of damages), this was not an isolated case but errors of this kind, i.e. mislaid files and the like, were a widespread problem within the department. x) As to the delay which would have occurred in any event for systemic reasons, I acknowledge that the Secretary of State had to deal with several thousand successful appeals each year, that the system had fallen into a state of crisis with serious backlogs, and that very considerable efforts and resources had been devoted to improving it. The period during which the claimant's case fell to be considered was one where a new system was in operation and was getting to grips with the problem, even though the inherited backlog meant that there were still substantial delays at the relevant time: only later was the backlog overcome. The existence of this historical problem and the fact that it was being tackled actively and with ultimate success are strong considerations in the Secretary of State's favour. They are not, however, a complete answer. In my view they cannot justify the delay from mid-July when, on the normal operation of the system at the time, a status letter should have been issued. I also take the view, though with greater hesitation, that they do not provide a justification for a delay right through to mid-July, given the combined strength of the other considerations to which I have referred.

Whether the family reunion applications were unlawfully impeded

[67]The claimant contends that the British Embassy in Kinshasa acted contrary to his legitimate expectations or misdirected itself or acted unfairly so as to impede his family's applications for entry clearance, thereby extending the delay in achieving the family reunion. Strictly the complaint here should be against the Secretary of State for Foreign and Commonwealth Affairs, but no point is taken on this by the defendant Secretary of State for the Home Department.

[68]The essence of the case is that the claimant's family were wrongly denied access to the procedures for making a family reunion application because they had no travel documents. The Immigration Rules do not require the production of such documents. It was not the practice of diplomatic posts abroad to require them. The British Embassy was wrong to refuse to accept the family's applications without such documents, and the error was compounded by telling the family to go to the UNHCR office in Kinshasa. The family's treatment was contrary to received practice. As the detailed factual history shows, it took the claimant's solicitor a long time to establish what had happened and the inquiries made were dealt with wholly unsatisfactorily. Further, although it is accepted that an ECO must ultimately be satisfied of an applicant's identity before issue of an entry clearance, the lack of a particular form of evidence of identity cannot prevent the making of an application and it may be possible to demonstrate the family link by other means such as DNA testing. As to the policy to issue GV3s only where identity can be proved by other means and the applicant is for justifiable reasons unable to obtain travel documents, the claimant's family was unable to approach the Angolan Embassy in Kinshasa for travel documents, for justifiable reasons given in the claimant's solicitor's letter of 8 April 2002 and expanded on in the evidence before the court.

[69]Pulling the strands together, Mr Nicol submits that:(i) the family were initially prevented from making an application because they did not possess travel documents;

(ii) their rejection was based upon an errroneous self-direction by the ECO that the family needed valid passports or refugee travel documents;

(iii) even if the ECO was entitled to request such documentation from the family, its absence should not have prevented their making the application and seeking to persuade him that the substantive requirements of the rules were met (which in the event they did), with a right of appeal in the event of a refusal;

(iv) the referral to the UNHCR was futile and served only to cause delay since, as the Secretary of State now concedes, the UNHCR could not have provided travel documents;

(v) there was a failure to respond usefully and accurately to the solicitor's inquiries as to which documents were required in order to make the entry clearance application, and a failure until the end of June 2002 to disclose the policy actually operated: had the policy been disclosed earlier, the solicitor would have been able to explain fully why no travel documentation could be obtained and the matters could have been progressed much faster.

[70]Although reference is made to later events, the complaint relates essentially to the period up to 1 March 2002 when the applications were treated as having been made. It is not contended that the processing of the applications after that date gave rise to further unlawful delay.

[71]For the Secretary of State, Mr Kovats contends that the very worst that can be said against the Secretary of State is that there was a lack of clarity in the handling of the family reunion applications. It is accepted that a travel document is not required for lodging an application, but it is submitted that such a document is generally required for the actual grant of entry clearance. As to the Immigration Rules, rule 320 applies to applications by relatives of refugees (which fall under rules 352A-352F) and passports or other documents establishing identity and nationality must therefore be produced. The Secretary of State acted reasonably in making inquiries to establish whether the claimant's family met the requirements of the rules and, if they did not, whether the requirements should be waived. The effective cause of the delay was the failure by the claimant's family to produce identification or travel documents. A form GV3 may be issued if an applicant is unable to obtain a travel document. But it is not accepted that the claimant's family had a valid reason for not applying to the Angolan Embassy in Kinshasa for travel documents. The Secretary of State issued GV3s in the present case not because he accepted that he had been wrong to require the family to obtain, or at least to attempt to obtain, travel documents, but for the pragmatic reason of avoiding further delay given the history of the case.

[72]Mr Kovats also submits that there were further matters that required investigation. There are discrepancies about the age of the claimant's eldest child, though in the end the Secretary of State has given him the benefit of the doubt. As regards the claimant's mother, parents of adults are not included in the refugee family reunion provisions. The relevant rule in respect of the mother is rule 317, the criteria in which include "a parent … under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom". It was necessary to investigate whether the claimant's mother met the criteria in that rule and, if not, whether it would be appropriate to waive the requirements on the basis of a policy instruction that "we may exceptionally allow other members of the family (e.g. elderly parents) to come to the UK if there are compelling, compassionate circumstances" (IND Asylum Policy Instructions, Chapter 6, section 2). The mother was granted a visa because of her role as a carer for the children and potentially for the claimant. The grant of a visa in her case was not a formality or inevitable.

[73]The principal questions raised by those competing submissions are whether the British Embassy unlawfully refused to accept the family reunion applications prior to 1 March 2002 (in particular, whether reliance was placed on the lack of travel documents as a ground for refusing to accept the applications) and, if so, whether that resulted in delay in the grant of entry clearance.

[74]The answer to the first question depends on precisely what happened during the visit to the Embassy in September 2001. Unfortunately the evidence on the point does not admit of precision. I have already explained that the court has the claimant's mother's account as relayed to the claimant in November 2001 and to his solicitor in April 2002 and that I think it likely that the content of the visit was in broad terms as communicated by her. That includes what she said about her being asked if they had travel documents and, when she said that they did not, her being told that the Embassy would not deal with them further and they should go to the UNHCR office in Kinshasa. A possible construction of this is of course that the family tried to make applications but were prevented from doing so on the erroneous ground that they needed travel documents even for the purpose of making the applications. It seems to me equally possible, however, that the question of applications was not pressed and that there was no refusal, as such, to accept applications: the family were told that travel documents would be required for the grant of entry clearance and were advised to try the UNHCR office for travel documents. Without further detail, I do not think that the court can properly conclude against the Secretary of State that, by reason of what happened at this short visit, there was an unlawful refusal to accept their applications or that, to use other expressions deployed in Mr Nicol's submissions, there was a wrongful denial of access to the procedures for making a family reunion application or the family were prevented from making such an application on the basis of an unlawful self-direction by the ECO.

[75]If there was no refusal to accept family reunion applications on the occasion of the September visit to the Embassy, the entire basis of this part of the claimant's case falls away, since there was no further attempt to make an actual application between September 2001 and March 2002 and nothing that happened during that period could be said to have amounted to a refusal to accept an application; and in early March 2002 the Secretary of State treated the solicitor's letter of 3 January 2002 as a formal application even though it did not technically amount to one.

[76]Even if what happened during the September visit did amount to a refusal to accept family reunion applications, I do not think that it can be said to have caused the delay that occurred in the grant of entry clearance. For reasons considered below, the Secretary of State was entitled to require the production of travel documents for the grant of entry clearance. The family were told during the September visit that they needed travel documents; yet, beyond the fruitless visit to the UNHCR office, they did not seek to obtain travel documents. Because of poor communication via the claimant it took a long time for the claimant's solicitor to realise that they had been told that they needed travel documents; and when the point was appreciated, the stance adopted on the claimant's behalf was that travel documents were not needed and that GV3s could and should be issued instead. It is true that the correspondence with JECU, the Embassy and the Treasury Solicitor suffered from a degree of confusion and delay and does not reflect well on the departments concerned, but in my view that does not affect the overall position. As to the fact that an alternative means of establishing identity was ultimately accepted and GV3s were issued, I do not think that it helps the claimant since this was an exercise of discretion so as to avoid further delay in the circumstances that existed in the latter part of 2002.

[77]It might be thought that the question whether travel documents were required for the grant of entry clearance has only a limited relevance, given that the claimant's case is put on the basis of a wrongful refusal to accept family reunion applications and it is common ground that travel documents were not needed for the making of an application (the disputed question being whether they could be required for an application to succeed). Since, however, so much time was devoted to the question in argument and in case something does turn on the correctness of the Secretary of State's view, I propose to deal with it. For that purpose, in order to disentangle the issues, I shall consider first the Immigration Rules, then the evidence on policy and practice, and finally the evidence on whether the claimant's family had a reasonable justification for not seeking to obtain travel documents.

[78]The Secretary of State's case is that travel documents are required under rule 320 of the Immigration Rules, which provides:

“In addition to the grounds for refusal of entry clearance of leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply: Grounds on which entry clearance or leave to enter the United Kingdom is to be refused: …. (3) failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality …. (5) failure in the case of a visa national to produce to the Immigration Officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought ….”

Grounds on which entry clearance or leave to enter the United Kingdom is to be refused: …. (3) failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality …. (5) failure in the case of a visa national to produce to the Immigration Officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought ….”

[79]Mr Nicol submits that rule 320 does not apply in the context of a family reunion application by the family of a refugee. As the introductory words make clear, the rule supplements the provisions in Parts 2-8. Provisions concerning refugees, however, are in Part 11. Rule 320 therefore does not apply to refugees. Moreover, since refugees themselves cannot be refused leave to enter on the ground of lack of a passport or other document establishing identity and nationality, it is clear that the rule cannot apply to them; and in those circumstances it is not to be read as applying to their family. It is accepted that the immigration officer has to establish identity, but there are alternatives to a passport or travel document: for example, DNA testing as eventually applied in the present case.

[80]Mr Kovats submits that a person seeking leave to enter or remain as the spouse or child of a refugee must meet all the requirements laid down in rules 352A-352F, which were inserted in Part 11 on 2 October 2000. Although it would have been better to amend the introductory words, other general grounds for refusal in rule 320 are plainly intended to apply to such persons (e.g. refusal if subject to a deportation order or on the ground that exclusion is not conducive to the public good) and there is no good reason why the requirement of a passport should not also apply. The rules are not to be construed with the strictness of a statute: R v. Immigration Appeal Tribunal, ex parte Alexander

[1982] 1 WLR 1076

, 1080G.

[81]I prefer Mr Kovats's submissions. One of the requirements to be met by a spouse or child of a refugee is that he or she "if seeking leave to enter … holds a valid United Kingdom entry clearance for entry in this capacity" (rule 352A(iv) and rule 352D(vi)). That appears to take one back to the general rules concerning entry clearance. As a matter of construction, the general grounds for refusal in rule 320 are not necessarily limited to cases arising under Parts 2-8: they are grounds of general application, additional to those set out in Parts 2-8. Although the matter could have been expressed more clearly, they must in my view be intended also to apply to applications for entry clearance by spouses and children of refugees pursuant to rules 352A-352F.

[82]I also accept the separate point made by Mr Kovats that the application by the claimant's mother fell under rule 317. This too contains a requirement that the applicant, if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity; and again I consider that the general grounds of refusal in rule 320 applied. (I would add here, though it is a separate point, that the grant of entry clearance for the claimant's mother under rule 317 was a discretionary matter and could not be said to have been inevitable. In any event the Secretary of State was entitled to make the inquiries he did both in relation to the mother and in relation to the claimant's children.)

[83]Thus the Secretary of State was entitled to require passports or other travel documents as proof of identity and nationality unless there was a waiver of that requirement. The fact that there was ultimately a decision to waive the requirement does not affect the basic position.

[84]As to policy and practice, the evidence of the claimant's solicitor is that it has been the long-standing practice of diplomatic posts abroad to allow those making refugee family reunion applications to do so without travel documents, which such applicants are often unable to obtain. The diplomatic posts will themselves issue a form GV3 which identifies the recipient and upon which the visa is endorsed, which is what ultimately happened in this case. Further, the experience of the claimant's solicitor and other practitioners has been that, whilst possession of passports and other identity documents eases access to facilities at posts abroad, their absence does not prevent applications being made. In most cases applicants have not been asked to demonstrate their inability to secure travel documents from other agencies before a form GV3 is issued.

[85]I have referred already, in setting out the facts, to the Secretary of State's contrary evidence that applicants are expected to approach their own national government for a passport or other acceptable travel documentation; that the primary function of a GV3 is to replace, for visa purposes, a travel document issued by an authority which is not recognised by the United Kingdom; and that the issue of a GV3 to a person who does not hold a travel document is exceptional, the policy being that a GV3 may be issued to individuals whose identity can be proved by other means and who, for justifiable reasons, are genuinely unable to obtain travel documents for themselves. I have also referred to the evidence that GV3s were issued in the present case for pragmatic reasons as an exception to the policy.

[86]Various other documents before the court are relevant to this issue, including General Instructions on Entry Clearance and certain letters cited by way of illustration of what happens in practice. Some of that material supports the explanation given on behalf of the Secretary of State; none of it clearly undermines that explanation.

[87]Looking at the matter overall, I feel bound to accept the Secretary of State's evidence as to the policy and practice applied in this area. That reinforces my view that the Secretary of State was entitled to require the claimant's family to produce travel documents.

[88]The advice given during the September visit to go to the UNHCR office had a less satisfactory foundation to it. The UNHCR has stated expressly in a letter dated 1 July 2002 to the claimant's solicitor that it does not issue travel documents for the purposes of family reunion. In a late witness statement on behalf of the Secretary of State it is accepted that the UNHCR cannot issue travel documents and an apology is given for the previous erroneous assertion that it could. Mr Kovats has drawn my attention, however, to material which suggests that the point is not as clear-cut as that. The General Instructions on Entry Clearance indicate that stateless persons genuinely unable to obtain any other form of travel document may use UN "laissez-passer" (documents which can be issued by the UNHCR). The UNHCR letter of 1 July 2002 does not address that particular point. Thus, although on the evidence before the court the claimant's family does not appear to have been stateless, the Embassy's referral of the family to the UNHCR office may have had more substance to it than appears at first sight. I am not satisfied that even in this respect there was a legal error. Even if there was, it was not a material cause of delay. The evidence is that the claimant's mother delayed for several weeks before visiting the UNHCR office because the lady assisting her was unable to accompany her until then. There is nothing to show that that lady's presence was essential or indeed that they could not have gone on to the office immediately after the visit to the Embassy in September. Once they went to the office, they were told to contact a lawyer in the United Kingdom.

[89]No doubt it would have been better for the member of staff at the British Embassy to advise the claimant's family to approach the Angolan Embassy in Kinshasa in the first instance for travel documents. But the evidence shows that the family would not in practice have followed such advice, since the stance taken was that the family could not reasonably present themselves to the Angolan Embassy. This was the position set out in the claimant's solicitor's letter of 8 April 2002. It is expanded on as follows in one of her witness statements:

“It would also have been unrealistic to expect the family to obtain travel documentation from the Angolan authorities. This would again expose them to risk. In any event, my instructions are that the family have no formal documentary proof of their identity. I have also contacted the Angolan Embassy in London. On 1 July 2002, I spoke to Mr Moniz at that embassy. He explained to me that the Angolan Embassy in Kinshasa only issues one way travel documents valid for travel to Luanda, Angola. He went on to explain that if people in the Claimant's family's position want passports, they would need to produce identification to establish that they were Angolan. They would then need to complete forms and all the relevant documents would be sent to the authorities in Angola who would issue the passports and send them to the Embassy in Kinshasa. Mr Moniz said that the Angolan Embassies outside of Angola do not have the equipment or the resources to issue passports themselves. He went on to say that if the person/s did not have documents to establish that she/he were Angolan, then more forms would need to be completed. These would then need to be forwarded to the authorities in Angola for enquiries to be made to establish that the applicant was indeed Angolan before a passport could be issued. Given the numbers of Angolan nationals who are displaced due to the civil war in that country, he suggested that it would be better for the Claimant's family to approach an international agency such as UNHCR for assistance.”

[90]I accept Mr Kovats's submissions that the claimant's evidence does not disclose valid reasons for not applying to the Angolan Embassy in Kinshasa for passports. There is an assertion of risk, but the evidence does not support the view that such an application would have placed the family at risk. The family left Angola a long time after the claimant and not because of the circumstances of the claimant's persecution but because they were displaced by the civil war. As a further matter, the information provided by the Angolan Embassy in London suggests that passports could have been obtained by way of an application to the Angolan Embassy in Kinshasa, though there would have been a lot of form-filling. The fact that the process would probably have been a lengthy one does not provide a justification for failing altogether to pursue this route. (The suggestion by the official at the Angolan Embassy in London that the family turn to the UNHCR provides a further insight into the advice given to the claimant's family by the British Embassy to seek assistance from the UNHCR office in Kinshasa.)

[91]Having dealt individually with the main points canvassed before me on this issue, I can return to the place from which I started. In my judgment the claimant has failed to establish that there was an unlawful refusal to accept the family reunion applications in September 2001 or thereafter, or that, if there was such a refusal, it resulted in delay in the grant of entry clearance. The Secretary of State was entitled to require travel documents for the grant of entry clearance. The family knew from the start that travel documents were required, but did not obtain or seek to obtain them, and they did not have valid reasons for not doing so. The decision at the end of the day to grant entry clearance despite that failure was a discretionary decision taken to avoid further delay and cannot be turned against the Secretary of State. The advice to go to the UNHCR office is a side issue but was at worse unhelpful rather than unlawful and did not cause material delay.

[92]In short, I reject the claimant's case that the Secretary of State unlawfully impeded the family's applications for entry clearance.

Whether there was a breach of Article 8

[93]Although the foregoing is a lengthy preface to the central issues concerning Article 8, it will enable me to deal more concisely with those issues.

[94]Article 8 provides:

“(1) Everyone has the right to respect for his … family life …. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

[95]The claimant's case is that there has been an interference with his right to respect for his family life by reason of the delay to family reunion, first because of the delay in issuing his status letter (which was needed for the family's own applications for entry clearance) and then because of the delay in dealing with the family's applications. That interference was not "in accordance with the law" and did not meet the further conditions for justification under Article 8(2).

[96]Before leaving Angola in 1996 the claimant had been living with his children, his mother and his partner (the mother of the youngest child). His evidence is that he could not afford to take the family with him when he was forced to flee, but he always hoped to be reunited with them. In 1998 the family made their way to Kinshasa. In 1999 the claimant managed to re-establish contact with them by telephone. Shortly after that his partner moved in with someone else, leaving his mother and the children to cope by themselves. Towards the end of 1999 he began to send money to his mother, trying to remit about $100 a month, which he said was the family's only income. He was very anxious to be reunited with them. His prolonged separation from them was, in the opinion of Dr Coleman (to whose report dated 22 March 2002 I have already referred), the last straw that precipitated his mental illness, though this had preceded the events of 2001-2002 about which complaint is now made. Dr Coleman's view was that the continuing delay had a prejudicial effect on the claimant's mental health and that the support of close family members was vital to the claimant's rehabilitation.

[97]The concept of family life on which Article 8 is based embraces ties between parent and child even where there is no cohabitation; and although the tie can be broken by subsequent events, this can only happen in exceptional circumstances: Boughanemi v. France

(1996) 22 EHRR 228

at 245 para 35. The same passage recognises that family life can exist between an adult and his parent.

[98]In the circumstances it is now common ground that there existed family life between the claimant and his mother and all three children. This was conceded late in the day, after the completion of proper investigations into the position of his mother and his eldest son. It is also now accepted, as shown by the grant of entry clearance, that the family should be together in the United Kingdom. An argument on behalf of the Secretary of State that the family could have lived together in Kinshasa has not been pursued. Nor, for reasons it is unnecessary to consider, has an argument relating to the territorial scope of the Human Rights Act 1998.

[99]The case is concerned not with any action on the part of the Secretary of State in separating the claimant and his family, but with delay in facilitating a reunion between them.

[100]Mr Kovats submits that the case is therefore on all fours with the decision of the European Commission of Human Rights in Askar v. United Kingdom (application no. 26373/95, decision of 16 October 1995). That case concerned a Somali asylum seeker who complained of delay in the handling of his application to be reunited with his family. He had been recognised as a refugee in June 1990 and had applied in July 1990 for reunion with the members of his family living in Ethiopian refugee camps and Somalia (those in Somalia subsequently escaped to Ethiopia). These included his mother, two sisters, seven brothers, two sons and a daughter. The request was refused in November 1992. There was an appeal to an adjudicator, but it was held in abeyance pending the outcome of another case and had not been heard by the time of the Commission's decision. The applicant had heard that his mother, one of his brothers and two of his children had been seriously ill. He was extremely worried about them and he himself suffered from a clinical depressive disorder and post traumatic stress disorder. Meanwhile, in June 1993, four of his brothers who had fled to Germany rejoined him in the United Kingdom where they were granted refugee status.

[101]The Commission rejected his application at the admissibility stage, holding that it was manifestly ill-founded. The material parts of the decision are these:

“The Commission recalls that there is no right for an alien to enter or reside in a particular country as such guaranteed by the Convention. However exclusion of a person from a country in which his close relatives live could involve a violation of Article 8 of the Convention …. … The Commission finds it unnecessary to determine whether the relationships of the applicant with the various relatives concerned in the application fall in each case within the protection offered by Article 8 of the Convention as the application must in any case be rejected for the reasons set out below. The applicant complains of the delay in the proceedings concerning his application to the Home Office for permission for his relatives to join him in the United Kingdom. He argues that having regard to the grave situation in which his relatives are living the matter should be dealt with urgently. The delay, from his first request of 15 July 1990 to date, is, he submits, excessive and disproportionate to such a degree as to disclose a violation of his right to respect for his family life. The Commission recalls that delay in proceedings concerning matters of 'family life' may raise issues under Article 8 of the Convention. In the case of H v. United Kingdom, the Court found a violation of Article 8 in respect of proceedings concerning the applicant mother's access to her child which lasted two years and seven months. However, the Court had regard in reaching that conclusion to the fact that the proceedings concerned a fundamental element of family life (whether the mother would be allowed to see her child again) and that they had a quality of irreversibility, lying within an area in which delay might lead to a de facto determination of the matter, whereas an effective respect for the mother's family life required that the decision be determined solely in the light of all relevant considerations and not by mere effluxion of time …. The commission finds that the present case is not comparable. The subject-matter of the proceedings concerns the granting of permission to enter the United Kingdom for members of the applicant's family, whom the applicant has not seen for at least six years and with some of whom the nature of his ties has not been specified beyond the fact that, pursuant to Somali tradition, the applicant has on the death of his father become head of the extended family group. Further, it is not apparent that the delay in the proceedings has any prejudicial effect on their eventual determination or that the effect of the passage of time is such as to prevent the proper and fair examination of the merits of the case. Consequently, the commission finds that on the facts of this case the applicant's complaints fail to disclose a lack of respect for his family life.”

[102]I accept that the present case is on all fours with Askar. Indeed, if anything the reasoning in Askar applies all the more strongly to it. The delay in this case plainly did not prejudice the eventual determination of the family's applications: whereas in Askar the application was still pending at the time of the Commission's decision, in this case the applications are known to have succeeded. The period of delay in this case was substantially shorter than in Askar: it is true that I have held that the delay in issuing the claimant's status letter was unreasonable and that there was no equivalent finding in Askar; but the very basis of the complaint was that the delay was excessive in that case too. The time for which the claimant and the members of his family had been apart was somewhat shorter in this case than in Askar, but not materially so. I reject Mr Nicol's suggestion that the Commission's decision in Askar was influenced by doubt as to whether real family life existed. The Commission may have had such doubts in relation to some of the family members, but there is nothing to show that that was the case in relation to all the family members, and the decision proceeded on the express basis that there was no violation of Article 8 even if the relationships did fall within the protection of that article. The determinative point must have been the lack of prejudice to the eventual determination of the claims.

[103]I recognise that Askar does not constitute a binding precedent and that the case was decided on its particular facts and should not be taken as laying down a rule that delay cannot constitute an interference with Article 8 rights unless it prejudices the eventual reunion of the family. In my judgment, however, I should be slow to reject the reasoning in the Commission's decision. It is a relatively recent case and deals with precisely the same kind of problem as the court is faced with here.

[104]If it is necessary to go further than the approach in Askar, then Mr Kovats submits that the present case is concerned with a positive obligation and that in determining whether there has been a violation of Article 8(1) a fair balance has to be struck between the interests of the individual and the interests of the community. He relies inter alia on Botta v. Italy

(1998) 26 EHRR 241

, where the European Court of Human Rights stated at para 33:

“In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to the negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves. However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation.”

[105]Mr Kovats acknowledges that one must not make too much of the point that this case concerns positive rather than negative obligations. As the Court observed in Ciliz v. Netherlands

[2000] 2 FLR 469

at 481 para 61, the boundaries between the State's positive and negative obligations under Article 8(1) do not lend themselves to precise definition, but the applicable principles are similar. As to the principles themselves, the Court in Ciliz went on to repeat that in both contexts regard must be had to the striking of a fair balance and to the State's enjoyment of a margin of appreciation. If, therefore, one is looking beyond Askar, regard must be had to how those principles are to be applied in this case.

[106]In practice it seems to me that such principles have only limited scope for application here. They are relevant only in so far as one is considering the general operation of the administrative arrangements established by the Secretary of State. Underlying the case is a general concern about the extent of delays in issuing status letters at the material time and a perceived failure to do more to reduce such delays. I do not propose to repeat or expand upon the relevant evidence or to go back over the decisions in Mersin and Arbab where the issues were canvassed. It is right to mention that my attention has also been drawn to other cases where claims have succeeded and to critical comments made in Annual Reports of the Parliamentary Ombudsman, and that the claimant's counsel have included in their skeleton argument an entire annex detailing the evidence on delays and on the alleged failure to establish an efficient procedure.

[107]On this broad question, however, I take the view that considerable weight has to be given to the fact that the Secretary of State has been faced with a huge and growing administrative problem, that he has had to make difficult decisions concerning the allocation of scarce resources, and that he has repeatedly sought to tackle the problem. Moreover, by the establishment of the National Implementation Unit with effect from 1 February 2001, he introduced a system which actually succeeded in eliminating serious delay by March 2002. In those circumstances I would not hold that delays attributable to the normal operation of the system during the relevant period constituted a breach of the Secretary of State's obligations under Article 8(1).

[108]But in truth, as the detailed exposition of the facts has shown, this case is concerned with delays attributable to a more varied range of factors, including a catalogue of human errors in relation to the issue of the claimant's status letter and a degree of confusion and dispute in relation to the family's applications for entry clearance. In relation to those matters it makes no real sense to talk in terms of a balance between the general interest and the interests of the individual or of a margin of discretion on the part of the authorities.

[109]In relation to such matters I think it better to go back to the language of Article 8(1) and to the interests that it seeks to protect, and to ask myself in simple terms whether what happened in this case can fairly be said to have involved a lack of effective respect for the claimant's family life.

[110]My answer to that question is 'no'. There were numerous administrative failings; everything took much longer than it should have done; and some, but far from all, of the delay was the responsibility of the authorities. But in January 2001, at the very beginning of the period on which the case has focused, the Presenting Officer showed himself to be sympathetic to the claimant's wish to be reunited with his family and requested details with a view to speeding things up once the IAT's determination was promulgated. The general picture thereafter is not of people obstructing the applications by the claimant or his family (the September 2001 visit to the British Embassy in Kinshasa being the low point in that respect) but of people trying, albeit often inadequately, to provide responses and to move things along when the matter came to their attention. Then at the end of the period, in November 2002, a discretion was exercised in the family's favour so as to enable them to be reunited without further delay. Looking at what happened over the period as a whole, in my judgment it did not involve any lack of respect for the claimant's family life.

[111]I should spell out that, although I have found earlier in this judgment that there was unlawful delay in the issue of the claimant's status letter, that does not lead automatically to a finding of breach of Article 8. The issues are not the same and the application of Article 8 must be analysed separately. The fact that, as a matter of domestic law apart from the Convention, damages are not available for the unlawful delay (though an ex gratia payment of compensation might be appropriate) is not a good reason for seeking to accommodate the case within the scope of Article 8.

[112]After the conclusion of the hearing in this case Mr Kovats sent me a copy of the judgment of Newman J in Anufrijeva v. Mayor & Burgesses of London Borough of Southwark (QBD, 4 December 2002, neutral citation number not given), which concerned the application of Article 8 to the discharge of a local authority's duty to provide suitable accommodation for, and to assess the needs of, the claimants under housing and welfare legislation. The local authority had in fact acted both to provide the family with a home and to provide for the needs of the family, and that the dispute centred on the suitability of the accommodation and adequacy of the assistance provided. The judge held that the circumstances did not engage Article 8. In para 105, after a detailed review of relevant authorities, he extracted a number of points for consideration, including:

“(7) It will be rare for an error of judgment, inefficiency or maladministration occurring in the purported performance of a statutory duty, having application to the class or category or concept 'private and family life … home …", to give rise to an infringement of Article 8. (8) For action taken pursuant to statutory powers having such application to constitute an infringement of Article 8, it is likely that the act or acts of the public authority will have so far departed from the performance of the public authority's statutory duty as to amount to a denial or contradiction of the duty to act. (9) It is likely that the circumstances of the infringement will be confined to flagrant and deliberate failure to act in the face of obvious and gross circumstances affecting the Article 8 rights of an individual. (I take the decision of Sullivan J in Bernard v. London Borough of Enfield [2002] EWHC 2282 (Admin) to be an example.)”

[113]Although expressed as principles of general application, those observations are perhaps to some extent a reflection of the particular context of the case. If adopted for the purposes of the present case they would plainly support the Secretary of State's position. But since they have not been the subject of close scrutiny in the arguments before me, I prefer to leave them on one side and to base my decision on the reasons I have already given.

[114]For those reasons I find that there was no breach of the claimant's rights under Article 8(1).

[115]If I were wrong on that, my finding that there was unlawful delay in the issue of the claimant's status letter would preclude successful reliance on Article 8(2) since any breach of the claimant's rights under Article 8(1) could not be said to have been wholly "in accordance with the law". Moreover, if the various other matters to which I have referred do not take the case outside the scope of Article 8(1), it is difficult to see how they could avail the Secretary of State under Article 8(2). In all the circumstances, however, I think it unnecessary to examine the position under Article 8(2) any further.

Damages for breach of Article 8

[116]In the light of my finding that there has been no breach of Article 8, the question of damages does not arise for decision. But since counsel have expended so much energy on this question too, and in case it becomes relevant in the event of an appeal, I propose to indicate the scope of their submissions and to summarise my conclusions.

[117]Mr Nicol contends that, if there was a breach of Article 8, damages for non-pecuniary loss should be awarded pursuant to section 8 of the Human Rights Act 1998. Section 8(3) provides that no award of damages is to be made unless, taking account of all the circumstances of the case, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. The submission made is that such an award is necessary here. By section 8(4) the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under

Article 41 of the Convention

[118]The award contended for is in respect of non-pecuniary loss. It is submitted that the claimant sustained a number of "losses": his mental health deteriorated and his rehabilitation was delayed; the delay in being reunited with his family was very stressful, particularly as he had been led to believe in early January 2001 that he would be reunited very quickly; his benefit entitlement ceased for a period of about 6 weeks, during which he was forced to rely on friends and borrow money, which he found degrading and humiliating; and for the period of the delay he was forced to live in straitened circumstances and to support his family on benefits intended for himself. It is recognised that he had already been apart from his family for a long time, but his successful appeal and heightened expectations thereafter made his difficulties during the period of delay qualitatively different.

[119]Mr Nicol acknowledges the difficulty of identifying the relevant principles but cites a passage from Clayton & Tomlinson, "The Law of Human Rights", paras 21.34-21.45, for a number of guidelines drawn from the case-law:(i) compensation is discretionary,

(ii) the essential principle is "restitutio in integrum",

(iii) compensation is payable only to the injured party,

(iv) there must be a causal link between compensation and breach, and

(v) one head of allowable compensation is for non-pecuniary loss including distress and loss of relationship (though the present claimant goes further and alleges an adverse effect on his psychiatric condition). He also cites the Law Commission's report, "Damages under the Human Rights Act 1998", including passages at pages 34-35 and 38 that support the proposition that damages are more likely to be awarded for substantive breaches of rights than for procedural breaches, and that a record of similar violations may be a factor in deciding to award damages. This brings one back to the general history of delays in this area and past legal challenges in respect of them.

[120]Particular reliance is placed on the reasoning and decision of Sullivan J in R (Bernard) v. London Borough of Enfield

[2002] EWHC 2282 (Admin)

. In that case it was held that a local authority's failure to discharge its duty under section 21 of the National Assistance Act 1948, with the result that the claimants had to remain in manifestly unsuitable accommodation for some 20 months longer than they should have done, was a breach of Article 8. An award of damages was considered necessary to afford the claimants just satisfaction. In relation to quantum the judge stated that the guiding principle was restitutio in integrum but observed that it was much easier to apply where there had been pecuniary rather than non-pecuniary loss and that there was as yet no established "tariff" (para 42). He held that the award should not be minimal, since that would undermine the policy that Convention rights should be respected by all public authorities (para 58). He took the view that a restrained or moderate approach to quantum would provide the necessary degree of encouragement to public authorities whilst not unduly depleting public funds (para 59). But in agreement with the Law Commission and apparently on the basis of inconsistency with the principle of restitutio in integrum, he rejected the suggestion by Lord Woolf writing extra-judicially that the quantum of an award should normally be on the low side by comparison with tortious awards (para 59; see also paras 44-45). Nevertheless on the facts of the case there was no comparable tort (para 46) and he found that personal injury awards and the JSB Guidelines for the Assessment of General Damages in Personal Injury Cases were of limited assistance because they were generally very far removed on the facts (para 60). In his view the Local Government Ombudsman's recommended awards were the best available UK comparables, and he described the case before him as an extreme example of maladministration which had deprived the claimant of much needed social services care for a lengthy period (para 60). He observed that the claimants had received no explanation or apology (para 61). He concluded that the appropriate award was £10,000, apportioned between the two claimants (para 62).

[121]Mr Nicol submits that an award in the present case should likewise be more than minimal. This too, he submits, was an extreme example of maladministration; and although apologies were eventually given, it was only when they were prompted by the claimant's original skeleton argument (for an earlier adjourned hearing).

[122]In a search for comparables, Mr Nicol draws attention to Berrehab v. Netherlands

(1988) 11 EHRR 322

(separation from young child owing to deportation: non-pecuniary damages of just over £10,000 at current values) and to cases in which parents have been separated from their children in the context of care proceedings and non-pecuniary damages have been awarded, e.g. Olsson v. Sweden

(1988) 11 EHRR 259

(about £30,000 at current values), Erikson v. Sweden

(1989) 12 EHRR 183

(awards to mother and daughter of about £30,000 and £15,000 at current values), W v. United Kingdom

(1987) 10 EHRR 87

and related cases (awards of between £13,000 and £20,000 at current values), and TP and KM v. United Kingdom

[2001] 4 CCLR 398

(awards of £10,000 each to mother and child who had been separated). See also Venema v. Netherlands, a judgment of the Strasbourg Court dated 17 December 2002, to which Mr Nicols drew my attention after the hearing: in that case, where parents were separated from a young child as a result of an unfair decision-making process, an award of about £10,000 was made to the parents and child jointly for distress and anxiety as a result of feelings of frustration and injustice.

[123]If regard is had to the JSB Guidelines, Mr Nicol submits that the present case falls at the bottom of the bracket for moderately severe psychiatric damage, which is a figure of £9,500. Although putting forward, in the light of observations in Bernard, a detailed analysis of ex gratia awards recommended or approved by the Parliamentary Ombudsman, he submits that such awards are very low and are not useful comparators: to adopt them would be to trivialise compensation for breach of Article 8.

[124]When pressed to identify a specific figure, Mr Nicol helpfully indicated "with great circumspection" that the claimant was asking the court to be thinking in terms of an award of £12,000.

[125]Mr Kovats, for the Secretary of State, accepts that the guiding principle of the Strasbourg Court in considering just satisfaction is the principle of restitutio in integrum. Damages are awarded for a breach of the Convention only if it is not possible to make such restitution. Even where that is impossible, the Court often rules that its own judgment constitutes just satisfaction: see e.g. Abdulaziz v. United Kingdom

(1985) 7 EHRR 471

, an immigration case involving a breach of Article 14 combined with Article 8. The Court adopts a broad brush approach to damages, awarding damages for non-pecuniary loss on an equitable basis, and "conducts its assessment of what an applicant is entitled to by way of just satisfaction in accordance with the principles laid down in its own case law under Article 50 and not by reference to the principles or scales of assessment used by domestic courts" (Osman v. United Kingdom

(1998) 29 EHRR 245

at 318 para 164; see also Curley v. United Kingdom

(2000) 31 EHRR 401

at 409 para 46). In Bernard no submission appears to have made as to the assessment of damages on an autonomous Convention basis rather than a national basis; and Sullivan J was wrong to reject Lord Woolf's view that awards should normally be on the low side by comparison with tortious awards. The English courts should follow the approach of the Strasbourg Court towards the assessment of compensation.

[126]Mr Kovats submits that in the present case a declaration would be sufficient to provide just satisfaction for any breach of Article 8. The matters relied on as supporting that approach include the fact that the Secretary of State did not separate the claimant from his family in the first place (cf. deportation or the child custody cases): the breach, if any, lay in the delay in facilitating their reunion. The period of separation was relatively short and entry clearance has now been granted for the family. One should be cautious about Dr Coleman's opinion that the delay has had an adverse effect on the claimant's mental health, but in any event the reunion with his family will remove any such problem and aid rehabilitation. The Secretary of State has not stood on his rights (e.g. he gave the claimant's son the benefit of the doubt with regard to age and exercised his discretion in the family's favour with regard to travel documents) and he has apologised for the errors and delay. Further, in considering a breach of a positive obligation, issues of resource allocation are relevant not only to whether there has been a breach but also to what amounts to just satisfaction. The court should not impose undue burdens on public services that are already stretched, and it should bear in mind that the efforts made to clear the backlog have proved successful.

[127]If the court finds that there has been a breach of the claimant's rights under Article 8 and that just satisfaction requires the award of compensation, then Mr Kovats submits that, even if tortious awards are relevant in principle, there is no comparable tort in this case. The claimant does not fall within the JSB Guidelines on psychiatric damage: he cannot point to any psychiatric injury caused by the material delay. The best guide on quantum, it is submitted, is the payments made in cases considered by the Parliamentary Ombudsman.

[128]A witness statement filed in the course of the hearing describes the framework drawn up in late 1999 by the Immigration and Nationality Directorate, at the request of the Parliamentary Ombudsman and in consultation with his office, to provide a scheme for paying compensation for non-financial loss where maladministration has caused severe distress to an IND customer. That framework put the matter of ex gratia "consolatory" payments on a firmer, more certain footing. The framework document itself states that "[c]ompensation for non-financial loss will only be paid in exceptional circumstances and only where there are sufficiently compelling circumstances to justify such a payment" and that such payments "must also take account of the normal requirements for the proper care and use of public funds". The payments are consolation payments only and are not intended to be based on a comprehensive assessment of the distress actually suffered. Payments in many cases will be between £50 and £250. More serious cases will merit higher payments, which may be up to £1,000. The witness statement notes that the level of payments made pursuant to the framework document was not intended to be on a par with damages that might be awarded by the courts in, say, a claim for personal injury. The tariffs have not been formally reviewed since late 1999, but this is due to be done shortly.

[129]The Annual Reports of the Parliamentary Ombudsman provide further details of cases where maladministration has been found and redress has been made. In the extracts provided to me I note the Ombudsman's statement of principle that "[a]nyone who has suffered injustice as a result of maladministration should, so far as possible, be put back in the position he or she would have been in had that maladministration not occurred", i.e. restitutio in integrum (Annual Report 1999-2000, para 4.2). In practice redress for non-financial loss has ranged from an apology to payments of a few hundred pounds. Mr Kovats draws particular attention to an investigation in 2000-2001 that led to a consolatory payment of £100 for the distress and anxiety caused by an unnecessary 6-month delay in relation to the issue of entry clearances. He submits that an award at the level of payments made in the context of complaints to the Ombudsman would be taken very seriously and that its value as a precedent would be great.

[130]I have not given those rival submissions the same degree of consideration as would have been appropriate if this had been a live issue for me. But the way I see the matter is briefly as follows: i) The power to award damages arises only where the award is "necessary" to afford just satisfaction (section 8(3) of the 1998 Act). Subject to that, it is a broad discretionary power. Section 8(1) confers a discretion to grant such relief or remedy as the court considers "just and appropriate". Where the Strasbourg Court awards compensation for non-pecuniary loss, it makes its assessment on an equitable basis. The domestic court should in my view adopt a similar approach. The very expression "just satisfaction" in section 8(3) suggests the Convention concept, and although the court is not bound by the relevant Convention principles it must take them into account (section 8(4)). ii) Although the Strasbourg Court understandably conducts its assessment on an autonomous Convention basis and not by reference to the principles or scales of assessment used by domestic courts, I see no reason why the domestic court, when performing a corresponding exercise under national law, should not look for bases of comparison in national law in its search for an equitable result. iii) In general I find the analysis of Sullivan J in Bernard very helpful. The relationship between awards by way of just satisfaction and tortious damages, and whether the underlying principle of restitutio in integrum compels the same result in both contexts, need not concern me in this case because there is no comparable tort and I do not think that any useful guidance is to be gained from personal injury damages. In particular, I would reject the analogy with awards for psychiatric damage. The claimant's psychiatric illness was caused by events before the delay complained of; and although there is some evidence that the delay had an adverse effect on his mental health, the case in this respect does not come near the situations dealt with in the JSB Guidelines. iv) I have not gained a great deal of assistance from the actual awards made by the Strasbourg Court, or from its decision in certain cases to make no award at all. The cases depend so much on their particular facts, all of which are very different from the facts of the present case. The most directly comparable Strasbourg case is Askar, which did not get past the hurdle of admissibility let alone give rise to an award of compensation. v) The examples of redress for maladministration that are found in the Annual Reports of the Parliamentary Ombudsman and the related framework for consolatory payments provide a much more useful basis of comparison. I bear in mind that such payments are ex gratia and do not purport to be based on a comprehensive assessment of the distress actually suffered, whereas an award under section 8 is by way of just satisfaction for breach of a right and should take full account of the non-pecuniary loss. I also take the view that an award at the level of, say, £100, would tend to undermine rather than reinforce respect for the rights protected by the Convention. Nevertheless I regard the awards made in the Ombudsman context as telling in favour of relatively low awards of compensation for breaches of the kind alleged in this case. vi) The various circumstances that have led me to conclude that there was no breach of Article 8 at all would also tend towards a relatively low award of compensation if, contrary to my view, there was a breach of Article 8. The fact that there has been a clear apology, if a little late in the day, also helps the Secretary of State. vii) If I had held there to be a breach of Article 8, I would have considered it necessary to make an award of damages. I do not think that a declaration would have sufficed. In my view, however, a sum in the region of £1,000 to £2,000 would have met the justice of the case. I regard the suggested figure of £12,000 as much too high.

Conclusion

[131]My key finding is that there was no breach of Article 8. I am inclined to the view that that finding should lead simply to the dismissal of this claim. It is true that in the course of the analysis I have found in favour of the claimant on a limited issue, namely an unlawful delay in issuing the claimant's status letter. But I doubt whether it is necessary or appropriate to grant declaratory relief in respect of that issue. The delay in issuing the status letter prompted the claim in the first place but has become a matter of history save for its bearing on the case under Article 8, which has failed, and its possible bearing on costs, which can be considered without the need for declaratory relief.

[132]I will, however, hear counsel on all questions of relief and consequential orders. - - - - - - - - - - - - - MR JUSTICE RICHARDS: I am handing down the judgment in this case. In it, the claimant, an asylum seeker whose claim to asylum ultimately succeeded before the Immigration Appeal Tribunal, seeks damages against the Secretary of State under

Article 8 of the European Convention on Human Rights

for the delay in granting him formal refugee status and in processing his family's applications for entry clearance to this country with the result, reunion between himself and his family, were delayed. For the reasons given in the judgment, however, his claim for damages is dismissed. MR SEDDON: My Lord, I have had an opportunity to discuss with my learned friend the orders that ought to follow your Lordship's judgment. MR JUSTICE RICHARDS: Before you do that, Mr Seddon, can I apologise for the fact that my commitments on the circuit meant that you had to wait until now on my return to London to get judgment. MR SEDDON: I think we are agreed that it should follow that the application for judicial review is dismissed. Your Lordship in his judgment canvassed the possibility of an application for a declaration being pursued. In our submission it would serve no purpose and we do not invite your Lordship to make any such declaration. We are of course grateful for the finding in the course of your Lordship's judgment part of the delay was unlawful. But it seem to us that that stood on its own and a further declaration was superfluous. My Lord, as far as costs are concerned I again have had an opportunity to talk to my learned friend and we propose that the order that your Lordship should make is no order as to costs, save for legal aid assessment of the claimant's costs. MR JUSTICE RICHARDS: Yes. MR NICOL: My Lord, I indicated to your Lordship in advance that I anticipated being instructed to apply for permission to appeal, and I have those instructions now. Would your Lordship hear me on that at this moment? MR JUSTICE RICHARDS: Yes, you indicated briefly in your helpful email to me, and a copy to Mr Kovats, the basis upon which you were going to apply. I am broadly sympathetic to the grant of permission, but perhaps you should just briefly outline what you are saying, then I will hear from Mr Kovats as to why I should not grant permission. MR SEDDON: I am grateful. Your Lordship appreciates that the period for which complaint is made falls roughly into two parts, the first dealing with the delay in issuing what is known colloquially as status papers; and the second in the relations between the claimant, his advisors and his family, and the embassy in Africa. So far as the first period is concerned, your Lordship was with us in finding that the delay was unlawful as a matter of domestic law. Your Lordship was against us on the issue of whether that constituted an interference for the purposes of Article 8.1, but went on to say, we accept strictly obiter, but helpfully, that because of the finding of illegality the Secretary of State would not have been able to rely on Article 8.2. Your Lordship had been with us on Article 8.1; and this was not a case in which a finding of a violation of the Convention would have been sufficient just satisfaction that damages ought to be awarded. Your Lordship went on to consider if he had been with us in terms of liability, how much those damages would be, and indicated a relatively modest sum. My Lord, as far as the Article 8.1 finding is concerned, your Lordship's judgment appear to rest on two bases. One was following the decision of the European Commission of Human Rights in Askar. As to that, we would wish to persuade the Court of Appeal that that was really a case decided on its own facts. Our facts are sufficiently distinguishable from it, and there is not an applicable statement of principle in what the Commission said that should determine adversely the decision in our case as to whether there has been a breach of Article 8.1. My Lord, I am not going to go into that in more detail, your Lordship heard from me in the course of the hearing itself. On the second basis your Lordship turned to the position on the assumption that Askar did not determine the matter, looked at the matter broadly and decided, on a broad view, that there was not a lack of effective respect for family life. We would wish to persuade the Court of Appeal that whether or not individual officials had indicated sympathy for the claimant, the reality was that that was not sufficient to overcome systemic delays and multiple errors that had plagued the dealings with the claimant's successful asylum application; and that it would be wrong to convert the Article 8.1 issue into what effectively would become a requirement for showing intentional interference with the claimant's rights. Again I do not seek to argue those matters, but simply indicate to your Lordship where they would go. My Lord, as far as the second period is concerned, your Lordship made a factual finding as to what to make of the incident in the embassy in Kinshasa in September 2001. My Lord, again with great respect to your Lordship, we would want to try and persuade the Court of Appeal to take a different view and to take a view that we submitted to your Lordship that it indicated to the claimant's mother that she had to have travel documents in order even to make the application; and if that were correct, it was an erroneous view of the law. My Lord, your Lordship's reason also rested in part on a view of the immigration rules and in particular Immigration Rule 320. MR JUSTICE RICHARDS: Whether or not it was necessary is a doubtful question, but I dealt with it. MR SEDDON: You dealt with it, your Lordship did, and that is a matter of some general importance and we would wish to persuade the Court of Appeal to take the contrary view to that which your Lordship adopted. Your Lordship also dealt with the failure of the claimant's family to seek passports from the Angolan Government via their embassy in Kinshasa, saying that that could have been done without risk to the claimant's family. We would wish to revisit that issue in the Court of Appeal, that the claimant's family did not have documents of identity in any formal sense, their links with the claimant himself would have to have been disclosed; and in our submission the trepidation that the family had for going down that route is a good reason for not seeking passports through the embassy. MR JUSTICE RICHARDS: If this matter were to go on appeal I would hope that quite a lot of the factual detail which I had to grapple to do justice to the arguments before me would not have to be gone into again. MR SEDDON: My Lord, we would of course seek to assist the Court of Appeal by explaining where exactly in your Lordship's very careful judgment we took issue; and where we did not take issue the Court of Appeal would have the benefit of your Lordship's review of the factual materials. I put it that way, rather than saying that there would not be a need for the Court of Appeal to go into some of the factual questions that your Lordship has put. MR JUSTICE RICHARDS: I understand that. MR SEDDON: They are called factual, but of course the whole essence of this jurisdiction is that it is a matter of law that the claimant is entitled to appeal on, although sometimes those issues of law could involve resolving questions of fact. My Lord, finally on the issue of damages --- MR JUSTICE RICHARDS: That is plainly an area open to argument. MR SEDDON: Yes. MR JUSTICE RICHARDS: You mentioned in your email Silber J's judgment as involving a broadly similar matter. MR SEDDON: Your Lordship is quite right. I supplied your Lordship with a copy. I hope your Lordship will not feel intimidated. MR JUSTICE RICHARDS: Far from feeling intimidated I have no intention whatsoever of reading it. MR SEDDON: My Lord, we for our part had to consider whether to send this to your Lordship a day before your Lordship was due to hand down a draft of his judgment. We looked at it and it is covering a broadly similar area; but we did not think that at that stage your Lordship would be helped by being presented with a 205-paragraph judgment. Nonetheless, it is in the broadly similar area; that is, it was an asylum-seeker who had suffered delay initially in dealing with the application for asylum itself. That is within the Secretary of State's Department. Secondly, delay in forwarding the appeal papers to the immigration appellate authority. The asylum-seeker was successful in establishing a breach of Article 8.1. The judge found no justification under Article 8.2, considered that damages for violation of the Convention right was required, adjourned the assessment and then gave the Secretary of State permission to appeal against the judgment as it has gone so far. I do not want to overstate the case; it is not an identical case by any means, but broadly similar issues are going to go to the Court of Appeal through that route. MR JUSTICE RICHARDS: Thank you very much. Mr Kovats, your submissions are always characterised by a degree of realism. I have indicated a provisional disposition to grant permission. Are you going to seek to persuade me otherwise? MR KOVATS: My Lord, my position is that I do not have the advantage of anybody sitting behind me, with the result that I do not have any express instructions whether to oppose permission to appeal or not. However, it is clearly right that your Lordship should deal with the matter now; and in the circumstances I would simply ask your Lordship to deal with it without the benefit of observations from the Secretary of State. MR JUSTICE RICHARDS: I am very grateful to you. The order will be that the claim is dismissed; there will be no order as to costs, save legal aid detailed assessment of the claimant's costs; there will be permission to appeal. I take the view that the case raises important issues worthy of the attention of the Court of Appeal, and I cannot say that there is no real prospect of success. I would hope that if an appeal proceeds much of the detail on which I found it necessary to focus in order to lay the matter out and resolve some of the issues before me could be stripped away. But I leave that to the good sense of counsel. This is not a case where I would grant just limited permission. I grant permission generally. MR KOVATS: Your Lordship having made that order could I on behalf of the Secretary of State ask for leave to cross-appeal, specifically on the issue of unlawfulness as a matter of domestic law and in order to avoid any argument about whether permission to appeal is required on the damages point as well? MR JUSTICE RICHARDS: I doubt very much that you need permission to cross-appeal in respect of either of those points; they are merely part of the reasoning. MR KOVATS: My Lord, to avoid any misunderstandings. MR SEDDON: I would agree with your Lordship as far as the first point my learned friend mentioned. As far as damages is concerned if he wants to contend £1,000 to £2,000 would be too high, he might need leave to appeal, although it does not form part of your Lordship's order. MR JUSTICE RICHARDS: I grant permission to the Secretary of State to canvass those matters on appeal. Whether it technically requires a notice of cross-appeal or not I leave to him to decide. MR KOVATS: Your Lordship will appreciate this is to keep the Secretary of State's options open, I not having any express instructions. MR JUSTICE RICHARDS: Yes, but plainly it is right that the matters on which I decided against the Secretary of State as part of the process of reasoning to my ultimate conclusion in favour of the Secretary of State should be open to be canvassed by the Secretary of State in the Court of Appeal.

Mambakasa, R (On the Application Of) v Secretary of State for the Home Department [2003] EWHC 319 (Admin)

Facts: the grant of asylum to the claimant

Facts: the grant of entry clearance to his family

Issues

Whether the delay in granting refugee status was unlawful

Whether the family reunion applications were unlawfully impeded

Whether there was a breach of Article 8

Damages for breach of Article 8

Conclusion

Cited in 9 later judgments