A & Anor, R (on the application of) v Secretary Of State For Home Department [2004] EWHC 1585 (Admin)

[2004] EWHC 1585 (Admin)Case No CO/3017/01Case No C0/5194/02
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 July 2004
Before
THE HONOURABLE MR JUSTICE KEITH
Between
The Queen on the application ofClaimants(1) AClaimant(2) Ibrahim Halil KanidagliClaimantThe Secretary of State forDefendantThe Home DepartmentDefendant
Mr Stephen Knafler (instructed by Clore & Co (in respect of A) and Duncan Lewis & Co (in respect of Kanidagli)) for ClaimantsMr Sean Wilken (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 11-12 March 2004
Judgment

Introduction

[1]The extent to which public authorities can be liable in tort for negligence at common law has been the subject of much debate in recent years. The topic arises in these two cases in the context of maladministration by the Home Office which resulted in asylum-seekers or members of their families who had been granted leave to remain in the UK not receiving the statutory welfare benefits to which they were entitled. Since both cases raise the same issues, they have been heard together.[2]Both sets of proceedings started life as claims for judicial review. On 14 May 2003, Mr Rabinder Singh QC (sitting as a deputy judge of the High Court) ordered by consent that Mr Kanidagli’s claim continue in the Administrative Court as if it had been begun as an ordinary claim for damages. Although a similar order has not been made in Mrs A’s claim, the parties have proceeded as if it had been. On 8 December 2003, Maurice Kay J. (as he then was) ordered that the cases be listed for a preliminary hearing to decide whether the defendant, the Secretary of State for the Home Department (“the Secretary of State”), was liable to the claimants in law on the assumed facts set out in the claimants’ statements of case. The hearing was not merely to determine whether on the assumed facts there was an arguable case that liability should be imposed on the Secretary of State. The hearing was to decide whether on the assumed facts the Secretary of State was in fact liable to the claimants.[3]Although the order provided for the assumed facts to be those set out in the statements of case, the parties have agreed what facts should be assumed for this purpose. However, that agreement has been expressed to be “without prejudice to any factual or legal argument that the [Secretary of State] might raise in relation to quantum and associated issues such as causation of loss, remoteness or mitigation”. Moreover, the argument before me (leaving aside an associated claim that the Secretary of State abused his power) was limited to whether a duty of care was owed to the claimants. Presumably, the agreement was therefore also without prejudice to whether such a duty of care had been broken. Thus, I have treated the hearing as having been to decide whether, on the assumed facts, the Secretary of State owed a duty of care to the claimants. An anonymity order has been made in the case of Mrs A.

The assumed facts in Mrs A’s claim

[4]In 1997, Mrs A’s husband arrived in the UK and applied for asylum. On 29 November 1999, the Secretary of State recognised him as a refugee, and granted him indefinite leave to remain in the UK. In due course, the Secretary of State granted Mrs A (and her five children) entry clearance to join her husband. He did so on 4 December 2000. When the Secretary of State grants entry clearance to the family of a person who has been recognised as a refugee, it is his practice to permit the family to enjoy the same benefits as other immigrants are entitled to. In particular, they will be eligible to take employment and to receive welfare benefits. The Secretary of State did not intend to depart from this practice in Mrs A’s case. However, the terms of the entry clearance granted to Mrs A which were endorsed on her passport mistakenly prohibited her from having any recourse to public funds.[5]Mrs A and her children arrived in the UK on 20 February 2001. She wrote on a number of occasions to the Secretary of State and the Treasury Solicitor asking for the terms of her entry clearance to be amended urgently so as to enable her to claim income support for herself, although her husband was able to claim benefits on behalf of their children and did so. Eventually, on 31 July 2001, she issued her claim for judicial review, seeking a mandatory order requiring the Secretary of State to amend the terms of her entry clearance. In due course, she was given permission to amend the claim form to include a claim for financial compensation.[6]On 17 August 2001, the Secretary of State acknowledged that the restriction on Mrs A’s access to public funds placed on her entry clearance had been a mistake, but it was not until 14 February 2002 that the Secretary of State wrote to her granting her indefinite leave to remain in the UK and removing the restriction on her access to public funds. From then on, she was able to claim income support. She had therefore not been able to claim benefits for herself from 20 February 2001 (when she arrived in the UK) to 14 February 2002 (when the restriction on her access to public funds was removed). Those lost benefits have been calculated on her behalf as amounting to £1,945.28.

The assumed facts in Mr Kanidagli’s claim

[7]Mr Kanidagli arrived in the UK on 23 August 1999 and applied for asylum. He received income support and housing benefit. In due course, the Secretary of State refused his application for asylum, and Mr Kanidagli appealed. On 4 February 2002, an adjudicator found that it would be a breach of Art. 3 of the European Convention on Human Rights (“the Convention”) to remove him to his country of origin. It is the Secretary of State’s practice to grant exceptional leave to remain in the UK in cases where removing someone from the UK would be incompatible with Art. 3 of the Convention, and to set out the grant of exceptional leave to remain in a document (“a status letter”), which also permits the recipient to take employment and to receive such welfare benefits as other immigrants are entitled to. The Secretary of State did not intend to depart from this practice in Mr Kanidagli’s case. Indeed, on 27 March 2002, the Secretary of State wrote a status letter to Mr Kanidagli granting him exceptional leave to remain in the UK. However, he did not send it to Mr Kanidagli.[8]Mr Kanidagli wrote to the Secretary of State on a number of occasions asking for his status letter. He also went to an office of the Department of Work and Pensions (“the DWP”) in an attempt to regularise his entitlement to income support, but was unable to do so because he did not have a status letter. On 27 July 2002, the DWP ceased to pay him income support because he had failed to provide a status letter. He was similarly refused a jobseeker’s allowance. Eventually, on 13 November 2002, Mr Kanidagli issued his claim for judicial review, seeking a mandatory order requiring the Secretary of State to provide him with a status letter. That prompted the Secretary of State to issue a status letter to Mr Kanidagli, which he did on 21 November 2002. The Secretary of State subsequently admitted that he had not done so earlier owing to administrative error.[9]Mr Kanidagli has been receiving benefits since 10 December 2002. He had therefore not received benefits from 27 July 2002 (when income support was no longer paid to him) to 10 December 2002. Giving credit for payments of income support received, and on the footing that the DWP will not seek to recoup any of those payments, the lost benefits have been calculated on Mr Kanidagli’s behalf as amounting to £3,150.77.

Some preliminary matters

[10]It is obvious that the Secretary of State could have made ex gratia payments to the claimants to compensate them for the losses which they suffered as a result of the maladministration which had admittedly occurred. He has chosen not to do that, and it now has to be decided whether he is liable in law to compensate the claimants. Without wishing to suggest that these cases do not have any importance for the orderly development of public law, the claimants’ advisers disavow any intention to establish that there is a general right of reparation for maladministration. Indeed, no such right exists in public law: “A fundamental tenet of English law is that the failure of a public body to act in accordance with public law principles of itself gives no entitlement at common law to compensation for any loss suffered. Nor does the careless performance of a statutory duty in itself give rise to any cause of action in the absence of a common law duty of care in negligence to a right of action for breach of statutory duty. To recover damages, a recognised cause of action in tort must be pleaded and proved.” (De Smith, Woolf & Jowell, “Judicial Review of Administrative Action”, 5th ed., para. 19-003). Indeed, what the claimants’ advisers contend is that these cases fall within the already expanded ambit of actions for negligence against public bodies. A more controversial contention advanced by the claimants’ advisers is that it would be an abuse of power for the Secretary of State not to compensate the claimants for their losses as a result of the maladministration which has occurred.[11]One other point needs to be made. The proportionality of these claims has not been questioned. However, in view of the criticisms levelled by the Court of Appeal in R (on the application of Anufrijeva) v London Borough ofSouthwark [2003] EWCA Civ 1406 at legal advisers who pursued claims for damages against a local authority and the Secretary of State, it is appropriate to make three points. First, the DWP has no power (subject to para. 21 below) to backdate benefits, and although the DWP has a scheme for compensating those who lose benefits as a result of maladministration by the DWP and its officers, the scheme does not apply to benefits lost as a result of maladministration by the Secretary of State. Secondly, the claimants’ advisers have suggested mediation, but the Secretary of State is unwilling to engage in such a process. Thirdly, cases of this kind could have been dealt with by the Parliamentary Commissioner for Administration (“the Ombudsman”), provided that a Member of Parliament referred the case to him. Mr Kanidagli’s MP refused to refer his case to the Ombudsman. Mrs A’s MP did refer her case, but the Ombudsman declined to investigate it. He took the view that since Mrs A’s claim for judicial review had been issued by then, he no longer had any jurisdiction to investigate the case: see section 5(2)(b) of the Parliamentary Commissioner Act 1967. A claim for judicial review of that refusal would have been unlikely to succeed: see R v Commissioner for Local Administration ex p. H (a minor) (1999) 1 LGR 932 and (on appeal) [1999] JLGL D63 and R v Commissioner for LocalAdministration ex p. Field (CO/880/99).[12]Finally, I was told that both the claimants’ advisers and the Legal Services Commission (“the Commission”) have carefully considered the costs issues which arise in these cases. Neither case would normally merit public funding on the usual cost/benefit analysis applied in publicly funded cases. However, the Commission’s Funding Code provides it with a wide remit in relation to cases which might develop the law for the benefit of the public. The Commission’s Public Interest Advisory Panel (“the Panel”) has concluded that Mr Kanidagli’s case has a wide public interest, and although Mrs A’s case has not been similarly considered by the Panel, the claimants’ advisers understand that public funding has been extended to her in the light of its grant to Mr Kanidagli.[13]That is the background against which these claims are made, and the way is now clear for the two issues which the claims address – negligence and abuse of power – to be considered. The statutory scheme[14]The loss which the claimants suffered was caused by immigration officers or officials performing statutory functions in the name of the Secretary of State. It is necessary for those functions to be considered in the context of such policy considerations as informed the statutory scheme under which the functions were performed. That is because, as Lord Hoffmann said in Stovin v Wise [1996] AC 923 at pp. 952E-953D, the policy of the statute is a crucial factor in deciding whether it was intended to confer a right to compensation for a breach of a duty imposed by the statute, and a fortiori for the imperfect exercise of a power conferred by the statute:
“If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care.”
[15]The modern scheme of immigration control is contained in the Immigration Act 1971 (“the Act”). Section 1(2) of the Act provides:
“Those not having [the] right [of abode in the United Kingdom] may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act…..”
The mechanism by which that permission may be given for someone who is not a British citizen is set out in section 3(1) of the Act:
“Except as otherwise provided by or under this Act, where a person is not [a British citizen] – ….. (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited period or for an indefinite period; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely – (i) a condition restricting his employment or occupation in the United Kingdom; (ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and (iii) a condition requiring him to register with the police.”
By section 4(1) of the Act, the power to give leave to enter the UK is to be exercised by immigration officers, and the power to give leave to remain in the UK is to be exercised by the Secretary of State. (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited period or for an indefinite period; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely – (i) a condition restricting his employment or occupation in the United Kingdom; (ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and (iii) a condition requiring him to register with the police.”[16]By section 3(2) of the Act, the Secretary of State is required to “lay before Parliament statements of the rules ….. laid down by him as to the practice to be followed ….. for regulating the entry into and stay in the United Kingdom of persons [who do not have the right of abode in the United Kingdom] …..”. These rules are the Immigration Rules. There is nothing in the Immigration Rules regulating the grant of leave to remain in the UK in cases where removing someone from the UK would be incompatible with Art. 3 of the Convention. Thus, the practice of granting exceptional leave to remain in the UK in cases like that of Mr Kanidagli was not the product of any particular immigration rule. It was a practice which was, no doubt, intended to give effect to the need for the UK not to act in a way incompatible with the Convention. Similarly with the welfare benefits payable to such persons. There is nothing in the Immigration Rules relating to whether such persons should receive such welfare benefits as other immigrants are entitled to. No doubt the Secretary of State did not wish to make people like Mr Kanidagli worse off than other immigrants.[17]Mrs A’s case, on the other hand, was covered by the Immigration Rules. She applied for entry clearance as the spouse of a refugee. Rule 352A of the Immigration Rules provides:
“The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse of a refugee are that: (i) the applicant is married to a person granted asylum in the United Kingdom; and (ii) the marriage did not take place after the person granted asylum had left the country of his former habitual residence in order to seek asylum; and (iii) the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right [commission of criminal offences]; and (iv) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”
The policy of granting leave to enter or remain in the UK in such cases was, I assume, to enable a person to join their spouse in the UK in cases where refugee status has been granted. Again, it is not the Secretary of State’s practice to make the leave of such a person to enter or remain in the UK subject to a condition that he or she is not to have recourse to public funds. If it was otherwise, that would have been provided for in rule 352A or elsewhere in the Immigration Rules. Accordingly, a person who has been granted entry clearance as the spouse of a refugee is entitled to receive such welfare benefits as other immigrants. No doubt the Secretary of State did not want to make people like Mrs A worse off than other immigrants. (i) the applicant is married to a person granted asylum in the United Kingdom; and (ii) the marriage did not take place after the person granted asylum had left the country of his former habitual residence in order to seek asylum; and (iii) the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right [commission of criminal offences]; and (iv) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”[18]Two points should be made in the light of these provisions. First, the mistakes which were made in the cases of Mr Kanidagli and Mrs A were administrative failures to implement decisions which had been made pursuant to those practices which the Secretary of State had decided to adopt for determining how he should exercise his statutory power to grant persons who are not British citizens leave to enter and remain in the UK and on what conditions. Secondly, there is nothing in the statutory scheme which shows that it was intended to prohibit a right to compensation for administrative failures of the kind which occurred.[19]In the interests of completeness, I should add that the provision which governs the payment to immigrants of welfare benefits, including income support and a jobseeker’s allowance, is section 115 of the Immigration and Asylum Act 1999. As a result of subsections (1), (3) and (9), an immigrant is only excluded from such benefits (unless he or she falls within such category or description, or satisfies such condition, as may be prescribed) if he is “….. a person who is not a national of an EEA State and who –(a) requires leave to enter or remain in the United Kingdom but does not have it;(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or(d) has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4 [leave pending appeal].” This provision therefore did not prevent Mr Kanidagli from being entitled to income support and a jobseeker’s allowance. However, condition (b) prevented Mrs A from being entitled to income support, a condition which would not have applied to her case had an inappropriate condition not mistakenly been applied to the terms of her entry clearance. (a) requires leave to enter or remain in the United Kingdom but does not have it; (b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds; (c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or (d) has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4 [leave pending appeal].” The absence of a power to backdate the benefits[20]An important preliminary point was taken by Mr Sean Wilken for the Secretary of State. The claimants would not have suffered any loss as a result of the mistakes which had occurred if the DWP had had the power to backdate the payment of income support and a jobseeker’s allowance to them. The fact that Parliament has not given the DWP such a power was said to show that Parliament must have intended that liability to pay compensation consisting of the loss of those benefits should not be imposed even if mistakes (whether by officers of the DWP or otherwise) had resulted in those benefits not being paid.[21]I cannot accept this argument, but to understand why it is necessary to look at the scheme of the relevant regulations – the Social Security (Claims and Payments) Regulations 1987 (SI 1968 of 1987) (“the Regulations”) – in some detail. Income support and a jobseeker’s allowance (along with a number of other welfare benefits) have to be claimed on the first day of the period for which the claim is made: reg. 19(1) and paras. 1 and 6 of sch. 4. The time for claiming these benefits may be extended up to a maximum of 3 months if, as a result of the circumstances referred to in reg. 19(5), the claimants could not reasonably have been expected to make the claim earlier: reg. 19(4). Some of the circumstances referred to in reg. 19(5) relate to physical difficulties which the claimant may have had. Others relate to circumstances outside the claimant’s control, such as a domestic emergency or bad weather. But there is also a set of circumstances which relate to information or advice which the claimant has received. If the claimant was given “information” by an officer of the DWP (reg. 19(5)(d)), or “advice” by a solicitor or other professional adviser, a medical practitioner, a local authority, or a person working in a Citizen’s Advice Bureau or similar advice agency (reg. 19(5)(e)), or “information” about the claimant’s income or capital by his employer or former employer or by a bank or building society (reg. 19(5)(f)), the time for making the claim is extended if the information or advice “led the claimant to believe that a claim for benefit would not succeed”. In none of these circumstances is the claimant required to prove that the person who gave him the advice or information was negligent.[22]Thus, it would not have been accurate to say that the DWP does not have the power to backdate the payment of income support and a jobseeker’s allowance. These benefits can, in practical terms, be backdated for up to three months in a number of clearly identified circumstances. Moreover, they can be backdated in those cases where the claimant relied on information or advice without the claimant having to prove negligence on the part of the person who gave him that information or advice. What the Regulations did was to acknowledge that there were a number of common situations in which late claims for benefits might be made, but which should not result in the claimants being deprived of those benefits for a limited period. In those situations, such claimants could obtain backdated benefits for a limited period without proof of negligence. That does not mean that the Regulations manifest a Parliamentary intention to prohibit claims of negligence in respect of benefits which were not covered by the circumstances expressly provided for by the Regulations. If such claims were to be prohibited, it would have to because the law of negligence – in particular the need to show the existence of a duty of care – prohibited such claims. The claim in negligence[23]There is no previous case in which the Secretary of State has been held liable in negligence on facts comparable to the claimants’ claims. Accordingly, it is necessary to start with first principles. In Caparo Industries Plc v Dickman [1990] 2 AC 605, Lord Bridge said at pp.617H-618A that what emerged from the authorities which he reviewed was that “…..in addition to the forseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.” These three criteria – forseeability of damage, proximity of relationship, and fairness, justice and reasonableness – often overlap. As Lord Oliver said in Caparo at p.633B-C, “…..it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of forseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court’s view that it would not be fair and reasonable to hold the defendant responsible.” Moreover, the courts are required to evaluate the consequences of imposing liability in a particular situation, and they must be sure that that is what justice requires. As a check against the hasty development of the law, Brennan J. said in Sutherland Shire Council v Heyman (1985) 60 ALR 1 at p.43, “the law should develop novel categories of negligence incrementally and by analogy with established categories”. Phillips L.J. (as he then was) explained this approach in Reeman v Department of Transport [1997] PNLR 618 at p. 625 as follows:
“When confronted with a novel situation the court does not ….. consider these matters [forseeability, proximity and fairness] in isolation. It does so by comparison with established categories of negligence to see whether the facts amount to no more than a small extension of a situation already covered by authority, or whether a finding of the existence of a duty of care would effect a significant extension to the law of negligence. Only in exceptional cases will the court accept that the interests of justice justifies such an extension.”
[24]There are three features of the claimants’ claims which are uncontroversial. First, the Secretary of State would have been aware of the effect which the maladministration in these two cases would have. Both the claimants would be denied the benefits to which they would otherwise have been entitled but for the mistakes which individual immigration officers and officials made. Had an inappropriate condition for entry clearance not been endorsed on Mrs A’s passport, she would have had access to public funds. So too would Mr Kanidagli if the status letter had been sent to him. The mistakes were compounded by the delay in remedying them. It is plain that the losses which the claimants would suffer could reasonably have been foreseen by the Secretary of State. Secondly, the mistakes which the individual immigration officers and officials made were purely administrative in nature. Once the decision had been made to grant Mrs A entry clearance and Mr Kanidagli exceptional leave to remain in the UK, no decision-making of any kind nor the exercise of any discretionary judgment was called for. What was required was merely the operational implementation of practices which were well established: the endorsement on Mrs A’s passport of entry clearance without any inappropriate conditions attached to it, and the issue of the appropriate letter to Mr Kanidagli. Thirdly, in the absence of the imposition of liability, the claimants would be left without a remedy. That is not to say that public policy requires all wrongs to be redressed, but as Sir Thomas Bingham M.R. (as he then was) said in X (Minors)v Bedfordshire County Council [1995] 2 AC 633 at p. 663D, “the rule of public policy which has first claim on the loyalty of the law [is] that wrongs should be remedied”.[25]As ever, though, there are a number of competing considerations. First, the loss which the claimants suffered is said by the Secretary of State to have arisen as a result of pure omissions on the part of immigration officers or his officials – an omission to remove the inappropriate conditions from Mrs A’s passport and an omission to send Mr Kanidagli a status letter. In Smith vLittlewoods Organisation Ltd. [1987] 1 AC 241, Lord Goff said at p.271B that “the common law does not impose liability for what are called pure omissions”. Secondly, the loss which the claimants suffered was purely economic loss, and the courts have taken a more restrictive approach to the imposition of a duty of care in relation to economic loss than in respect of physical injury or damage. Thirdly, as I have already said, the loss which the claimants suffered was caused by immigration officers or officials performing statutory functions in the name of the Secretary of State. It is said by the Secretary of State that the relationship between those immigration officers and officials and individual members of the public is insufficiently proximate for liability for a duty of care to arise.[26]I can deal relatively shortly with the first of these considerations, namely that the loss which the claimants suffered is said to have arisen as a result of pure omissions. The omissions which Lord Goff was referring to were omissions where there was no duty to take affirmative action of any kind at all. That is very far from this case. The immigration officers and officials had decided to grant Mrs A leave to enter the UK and Mr Kanidagli leave to remain in the UK, in circumstances in which they were entitled to have recourse to public funds. In each of their cases, attempts were made to enable them to apply for public funds. In Mr Kanidagli’s case, a status letter was written to him which, had it been sent, he could have shown to the DWP to get the income support and jobseeker’s allowance to which he was entitled. The error was in not posting the letter to him. In Mrs A’s case, the grant of entry clearance was endorsed on her passport, which (had it not had the additional words about her not having recourse to public funds) she could have shown to the DWP to get the income support to which she was entitled. The error was to add additional words which the Secretary of State had not intended to include. These were therefore not cases in which the Secretary of State had omitted to take action. The immigration officers and officials had taken action, but their action had been carried out so imperfectly that they had not managed to achieve the results which had been intended.[27]The second consideration – namely, that the loss which the claimants suffered was purely economic loss – is an important one. But the reasons why the courts have taken a more restrictive approach to the imposition of a duty of care in cases of economic loss alone should not be overlooked. The duty is more likely to be owed to an indeterminate class of people, and liability could be established for an indeterminate amount. Moreover, economic loss usually arises in circumstances where the parties have a greater opportunity to use contracts to determine the level of risk which they need to take and the degree of protection which they require, even though that opportunity was not available to the claimants. Having said that, the fact that the loss which the claimants suffered was purely economic is a factor to be taken into account in applying the second and third of the Caparo criteria – proximity of relationship, and fairness, justice, and reasonableness – to the claimants’ cases.[28]The third consideration – namely, that the loss which the claimants suffered was caused by persons performing statutory functions – requires more analysis. The authorities show that one of the factors which has been regarded as determining whether the person in whose name the functions are performed owes a duty of care in the performance of those functions is whether the issue which the case raises is justiciable. A duty of care will often not arise when the performance of the function involves the formulation of policy or the making of a judgment or the exercise of a discretion. That is because, as Lord Slynn said in Barrett vEnfield London Borough Council [2001] 2 AC 550 at p. 571F-G:
“….. the ultimate question is whether the particular issue is justiciable or whether the court should accept that it has no role to play …..The greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable so that no action in negligence can be brought.”
However, Lord Slynn did not exclude the possibility of an action in negligence even if there was an element of discretion in the decision which gives rise to the claim. At p. 572B, he said:
“A claim of negligence in the taking of a decision to exercise a statutory discretion is likely to be barred, unless it is wholly unreasonable so as not to be a real exercise of the discretion, or if it involves the making of a policy decision involving the balancing of different public interests; acts done pursuant to the lawful exercise of the discretion can, however, in my view be subject to a duty of care, even if some element of discretion is involved.”
Lord Hutton said much the same thing at p. 583C-D:
“It is only where the decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion.”
[29]A graphic illustration of this principle in operation is afforded by A v EssexCounty Council [2003] EWCA Civ. 1848. Adoptive parents brought an action in negligence against the local authority adoption agency for failing to inform them about the disruptive behaviour of the boy who they subsequently adopted. It was held that there was no general duty owed by an adoption agency or its staff when deciding what information was to be given to prospective adopters (unless that decision was one which no agency could reasonably have taken). That was a policy issue for the agency to decide. However, once the agency had decided what information should be given, there was a duty on the agency to take reasonable care to ensure that that information was given.[30]It is not contended that the issue which arises in the present case is not justiciable. Mr Wilken realistically acknowledged that the mistakes which had been made were purely operational, in the sense that, once the decision had been made to give Mrs A entry clearance and Mr Kanidagli exceptional leave to remain in the UK, no discretionary judgment was thereafter called for in endorsing the appropriate conditions of Mrs A’s entry clearance on her passport and sending Mr Kanidagli a status letter. Rather, the Secretary of State’s opposition to the imposition of a duty of care in their cases arises out of the fact that the claimants belonged to a large and indeterminate class of persons, and there had been no assumption by the immigration officers and officials who dealt with their cases of responsibility towards them. For that reason, it is said that the relationship between the immigration officers and officials, on the one hand, and the claimants is insufficiently proximate for a duty of care to have arisen.[31]At first blush, this is an unpromising line of attack for the Secretary of State. The claimants undoubtedly belonged to large classes of persons. Mrs A belonged to the class of persons who were seeking entry clearance as the spouse of a refugee. Mr Kanidagli belonged to the class of persons who were seeking exceptional leave to remain in the UK on the basis that their removal from the UK would be incompatible with the Convention. But these classes were only indeterminate in the sense that other people would join these classes and leave them as their personal circumstances dictated. The classes to which the claimants belonged were clearly defined, and the fact that many people may be members of those classes should not in principle affect the question whether a duty of care should be imposed on those who deal with them. The size of the class is more relevant to the nature and extent of the duty of care rather than to its existence. Moreover, the errors which were made in the claimants’ cases were made in the context of the handling of their particular cases by immigration officers and officials. It is difficult to see why, in non-legal terms, the individual immigration officers and officials were not responsible for the errors which were made.[32]Is this stance in line with the authorities? Mr Wilken said that it was not, and he relied principally on Stovin v Wise in this connection. In that case, the first defendant had driven her car carelessly from a side road onto a main road. She collided with the plaintiff who had been riding his motorcycle on the main road. She argued that the junction was dangerous, because a raised area on land by the road obscured the view for those entering the main road. The local authority knew about it, and was joined as second defendant. The allegation against it was that it had failed to use its statutory powers to compel the owner of the land to remove the obstruction. That allegation was held by a majority of the House of Lords not to give rise to a duty of care on the part of the local authority.[33]Stovin v Wise was obviously decided in a wholly different factual context from the present case. But over and above that, two distinguishing features are readily apparent. First, the class of persons to whom the duty of care was allegedly owed was truly a large and indeterminate class of persons – namely, all members of the public who found themselves in that junction, whether as drivers, passengers or pedestrians. Secondly, the alleged breach of duty did not occur in the context of the handling of the case of particular individuals by officers of the local authority. It occurred in the context of their general functions relating to the safety of highways. On the facts alone, the result in Stovin v Wise gives no indication whatever about what the result in the claimants’ cases should be.[34]Lord Hoffmann gave the speech for the majority in Stovin v Wise. His speech had important things to say about liability for pure omissions (which this was), about the need for something other than reasonable foreseeability of loss to be established before a duty of care can arise, and about the need for the statutory scheme to be examined to see if it was intended to confer a right to pay compensation in the event of a breach of statutory duty or the non-exercise of a statutory power. Those issues have already been touched upon in this judgment, and Lord Hoffmann’s conclusion at p. 953D-E was:
“In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.”
[35]The first of these preconditions has indirectly been brought into question by the court’s reluctance to bring concepts of administrative law into the law of negligence: see X (Minors) v Bedfordshire County Council (per Lord Brown-Wilkinson at p. 736F), and Barrett v Enfield London Borough Council (per Lord Slynn at pp. 571H-572A and Lord Hutton at p. 586C). But that need not detain us because there was no rational reason to distinguish between Mrs A and Mr Kanidagli, on the one hand, and other persons whose cases were indistinguishable from theirs. Indeed, no different treatment of the claimants had been intended. For present purposes, what is important is what Lord Hoffmann had to say about the extent to which, if at all, an expectation that the statutory power would be exercised could amount to exceptional reasons for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power is not exercised.[36]Lord Hoffmann addressed that issue in the passage in his speech at pp. 953E-955C headed “Particular and general reliance”. The effect of that passage was summarised in Clerk & Lindsell on Torts, 18th ed., para. 12-33 as follows:
“….. in a public authority context, such ‘exceptional grounds’ would usually have to be found either in a reasonably held general reliance by the community as a whole that the discretionary service in question would be provided to all of them or in a similarly reasonably held particular reliance on the part of an individual that the service would be provided for him.”
I agree with that summary, though in its application to the present case, it should be remembered that this was not a case of the Secretary of State deciding not to exercise a statutory power which he had, but a case of the Secretary of State exercising his power imperfectly. Applying, therefore, Lord Hoffmann’s view to the present case, the community as a whole, and Mrs A in particular, would, I am sure, assume that if the invariable practice of the Secretary of State was to take the necessary steps to enable the spouse of a refugee who had been granted entry clearance the opportunity to claim welfare benefits, he would abide by that practice in all cases. Similarly, the community as a whole, and Mr Kanidagli in particular, would assume that, if the invariable practice of the Secretary of State was to take the necessary steps to enable the person who has been granted exceptional leave to remain in the UK because his removal from the UK would be incompatible with the Convention to claim welfare benefits, he would abide by that practice in all cases. It follows that I see nothing in Stovin v Wise which mandates the conclusion that the relationship between Mrs A and Mr Kanidagli, on the one hand, and the immigration officers and officials who handled their cases was insufficiently proximate for a duty of care to arise.[37]There are four other points which I should make. First, Barrett v EnfieldLondon Borough Council was regarded by Mr Stephen Knafler for the claimants as the high water mark of his case. The reliance he placed on it was understandable on the question whether the issues which the claimants’ claims raise are justiciable. But I have not found it helpful on the sufficiency of the proximity of the relationship. I am not convinced that Barrett dealt with that issue, perhaps not surprisingly because proximity was not really in contention. In Barrett, a boy who had been in care sued the local authority in whose care he had been for negligence in the way in which the authority had looked after him. It is difficult to think of a relationship more proximate than a local authority and a child in its care.[38]Secondly, Mr Wilken placed considerable reliance on the decision of the Court of Appeal in W v The Home Office [1997] Imm AR 302. The plaintiff was from Liberia. He claimed asylum on his arrival in the UK and was detained. The immigration officer was not prepared to consider either his release from detention or his temporary admission to the UK (while his claim for asylum was being considered) until he had established that he was a citizen of Liberia. His detention was prolonged because it had been thought that, while in detention, he had only scored three out of a possible fifteen points on a test of his knowledge of Liberia, and that true Liberians would have found it easy to answer all the questions. It was subsequently discovered that he had not taken a test at all, and that the test given to someone other than the plaintiff had mistakenly been placed on the plaintiff’s file. Immediately before the mistake had been discovered, the plaintiff had taken the test and had passed it easily. It was that which prompted the enquiries which revealed the mistake which had been made. The plaintiff was immediately released from detention and granted temporary admission to the UK. Even though this was a case of operational error, the Court of Appeal held that a duty of care had not arisen.[39]In my judgment, this case is distinguishable from the present one. Although this was a case of operational error, the error occurred prior to the making of the judgment as to whether the plaintiff was Liberian. In other words, it occurred in the context of the enquiries which were being made to determine a question of fact on which the future detention of the plaintiff depended. The Court of Appeal regarded that consideration as decisive. At p. 312, Lord Woolf MR (giving the judgment of the Court) said:
“The process whereby the decision-making body gathers information and comes to its decision cannot be the subject of an action in negligence. It suffices to rely on the absence of the required proximity. In gathering information, and taking it into account the defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy. For them to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers.”
It is questionable whether this thinking is consistent with the observations in Barrett about justiciability: whether the mistake in filing the test was negligent was, on the face of it, a justiciable issue. But the reason why a duty of care did not arise was because the mistake occurred in the course of the exercise of a judgment which the immigration officer had to make. Compare that with the cases of Mrs A and Mr Kanidagli: the errors in their cases were made after the judgment call had been made. All that was left was the implementation of the decision to which that judgment had related.[40]Thirdly, I have been very conscious of the fact that the three criteria identified in Caparo – foreseeability of damage, proximity of relationship, and fairness, justice and reasonableness – have a tendency to shade into each other. I have already referred to what Lord Oliver said in Caparo at p. 633B-C. The loss which the claimants would suffer as a result of the mistakes which were made were not just foreseeable. Until those mistakes were corrected, it was absolutely inevitable that they would lose out in the way they did, and an outsider looking on would have seen that. This may be one of those cases in which the certainty of loss was such that “from that alone ….. the requisite proximity can be deduced”, though I prefer to base my decision on the more principled analysis to which I have endeavoured to subject the authorities. Indeed, the fact that the loss which the claimants suffered was the obvious and inevitable consequence of the mistakes which were made undermines the reliance placed by Mr Wilken on the fact that the loss was economic loss only.[41]Fourthly, my attention was drawn to a number of other cases. I intend no discourtesy to counsel by not referring to them expressly. The cases to which I have referred were the principal cases on which counsel relied, and have been sufficient for me to reach a concluded view on whether the relationship between Mrs A and Mr Kanidagli, on the one hand, and the immigration officers and officials who handled their cases were sufficiently proximate for a duty of care to arise. And bearing in mind the need for the law to develop incrementally, I do not regard the finding of the existence of a duty of care in their cases as effecting a significant extension to the law of negligence.[42]I turn finally to whether it would be just, fair and reasonable for the law to impose a duty of care on those responsible for the administrative implementation of immigration decisions of the kind which have been made in the case of the claimants. A number of points were made by Mr Wilken in support of his contention that it would not be just, fair or reasonable for a duty of care to be imposed in their cases. Some of them I have already considered – for example, his contention that there is nothing in the statutory scheme to suggest that mistakes of the kind which were made in their cases should give rise to a right of compensation. But four of his points need to be addressed specifically:(i) It is said that the claimants had viable alternative remedies by way of judicial review. Mrs A could have sought judicial review of the endorsement on her passport of an inappropriate condition on her entry clearance, and Mr Kanidagli could have sought judicial review of the failure to provide him with a status letter. Mandatory orders could have been made to put the mistakes right. For my part, I do not think that judicial review was a comparable remedy at all. By having the mistakes put right, Mrs A and Mr Kanidagli would have had their entitlement to benefits restored. But it would have done nothing for the benefits which they lost in the meantime. Mr Wilken’s response is that Mrs A at least could have applied for judicial review before she came to the UK. But I question how realistic it would have been for the impoverished spouse of a refugee – assuming that she had appreciated the significance of an inappropriate condition endorsed on her passport – to obtain public funding while still overseas to commence a claim for judicial review for the removal of that condition. In any event, she may well have thought that she could not come to the UK until the question of her entitlement to benefits had been sorted out. In that case, any claim for judicial review would have significantly delayed her arrival in the UK and prolonged her husband’s separation from her and their children.(ii) It is said that imposing a duty of care would hamper the effective performance of the system of immigration control. I do not agree. Being required to take care in the administrative implementation of immigration decisions would enhance public confidence in the system, and the administrative implementation of immigration decisions is not an area of human activity in which the fear of being brought to account for one’s mistakes is likely to affect performance.(iii) It is said that imposing a duty of care would trigger further claims, which (a) would require funds to be diverted and time to be devoted to enable them to be resisted, and (b) would be a drain on public resources if the claims were successful. I am unimpressed by these assertions. If the claims are successful, it is only right that compensation should be paid. And I doubt whether very many further claims would be triggered. We are, after all, talking about a very limited category of claims, namely claims over mistakes in the administrative implementation of immigration decisions. Even if it were appropriate to take a “floodgates” argument into account, it is unlikely that the floodgates would be significantly opened.(iv) It is said that section 8 of the Human Rights Act 1998 arguably permits a wider range of claims than the common law for which damages may be awarded. The claimants were claiming damages under section 8, a claim which they subsequently abandoned. If they cannot succeed under section 8, they should not be permitted to succeed under the common law. I disagree. Claims for damages under section 8 can only succeed if the unlawful act of the public authority is an act which is incompatible with a Convention right. No breach of a Convention right has been alleged to arise as a result of the consequences flowing from the mistakes which were made in these cases.[43]I have not discerned any other reason why it would not be fair, just or reasonable for a duty of care to be imposed in this case. Indeed, it would be unjust if Mrs A and Mr Kanidagli did not have a remedy enabling them to claim the benefits which they have lost. Conclusion[44]For these reasons, I have concluded that, on the assumed facts, the Secretary of State owed a duty to the claimants to take care in the administrative implementation of the immigration decisions which had been made in their cases. To be precise, he owed a duty of care to Mrs A to ensure that an inappropriate condition on her entry clearance was not endorsed on her passport, and therefore did not include a prohibition on her having recourse to public funds. He owed a duty of care to Mr Kanidagli to ensure that Mr Kanidagli received a status letter which he could use to obtain welfare benefits. In these circumstances, it is unnecessary for me to reach any final conclusion on the far more contentious argument advanced on the claimants’ behalf relating to abuse of power, but I am very sceptical about the existence of a free-standing claim in private law that, absent negligence or some other tort, a public authority is liable to pay damages for not exercising a power which it has in a particular way. That is especially so in a case such as this where the abuse of power which is alleged was simply the Secretary of State’s refusal to act in a way which mitigated the effect of the mistakes which had been made..[45]I regret the lapse of time which has occurred since the hearing before me. The principal reason for that was that I twice had to ask counsel for further help on the relevant statutory schemes, namely the scheme for immigration control and the payment of welfare benefits to immigrants, and the scheme governing the backdating of benefits. That implies no criticism whatever of counsel. They had included the relevant schemes in the bundle of authorities. At the hearing, I had not thought it necessary for counsel to take me through them. I subsequently realised that I needed their assistance after all.[46]In order to spare the parties the expense of attending court when this judgment is handed down, I leave it to the parties to see whether an order for the costs of the determination of this issue can be agreed. In case such an order cannot be agreed, I give the parties liberty to apply for the issue of costs to be determined by me. The same applies to the Secretary of State if he wishes to apply for permission to appeal. Any such application for costs or permission to appeal should be filed within 14 days of the handing down of this judgment, and I will consider such applications without a hearing on the basis of any written representations which the parties wish to make.

Cited in 6 later judgments