“23. In relation to the Article 8 appeal, I was assisted by the reference to the decision in Pretty v UK[2002] 35 EHRR 1 where at paragraph 61 the Court stated: ‘the concept of a private life is a broad terms not susceptible to exhaustive definition; it covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual’s physical and social identity ... it protects a right to personal development and the right to establish and develop relationships with other human beings and the outside world.’ 24. The Appellant's studies and work have been undertaken in order that he can become a Ship’s Master. The Maritime and Coastguard Agency has advised the Appellant that the course he wishes to take is only available in the United Kingdom. ... He has never breached his conditions of entry clearance in the United Kingdom and has been successful in his previous courses of study. The consequence of the refusal is that he cannot progress his chosen career. I have found that he did not attempt to deceive the Entry Clearance Officer on his first application in 2008, and I find that the decision on this application is an interference with his right to respect to a private life and would have consequences of such gravity as potentially to engage the operation of Article 8. I have considered the decisions in MG (assessing interference with private life) Serbia and Montenegro[2005] UKAIT 00113 ; Razgar [2004] INLR 340 and Huang[2007] UKHL 11 ; and find that the decision to refuse entry clearance was not proportionate.”
"I submitted my passport and the appeal allowed letter on13th January 2010 to the VFS office, Colombo. The person who got those documents refused to take the new offer letter from the University in the UK though I asked him to take it as well. And said you will call for an interview if needed. On28th January 2010 I e-mailed the college letter to the VFS office Colombo at their request. My course will start on15th Feb. 2010 . Therefore please be kind enough to make a fair arrangement for me to get visa as soon as you can, to attend the course on time. Please find attached documents enclosed with this letter"
"We aim to address all frequently asked questions in this automated information sheet, which covers: status enquiries, appeal rights and procedures and withdrawal requests. In the event that we consider that this reply has not addressed your specific query, we will respond as soon as possible and within a maximum of 20 working days. STATUS ENQUIRIES (including allowed appeals) ... At times due to seasonal high volumes we may be unable to meet the target time scales given below. We apologise for the delay if this has occurred. ... Allowed appeals: the AIT will send the determination to our office; you will not need to contact our office to advise. On receipt of the allowed determination from the AIT we will request for you to resubmit your passport and any other relevant documentation required which may be specified. We aim to send this request to you within 3 weeks of receipt of the appeal allowed determination and on receiving your passport we aim to return the same to you within 15 working days."
"I would like to inform you that, on 13.1.2010, submitted my Passport & Appeal Allowed letter to the “UK Visa Application Centre” ... Colombo. But until now I couldn't get visa or my passport back. ... Apart from all these I inquire about my visa status through telephone from the British High Commission in Colombo, Sri Lanka recently. Although they take my passport no. and telephone no. to call me back, nobody got back to me. The course I applied for visa was already over on last March 2010 and I could not book a new course immediately this year. In the meantime, my company calling for re-employment as soon as possible, because I gave my rejoining date as mid April 2010 when I signed off from my last vessel on 11th of January 2010. Due to this matter I could not re-join my company as I informed and also breached the employment contract with them. Therefore I lost most of my earnings for nothing. I require my passport as soon as possible to go back to my job, because I am not doing a land job in Sri Lanka, I am travelling all over the world as Chief Officer in Merchant Navy Please be kind enough to let me know why my visa processing is taking so long and where was gone wrong, considering above factors."
"Appeal procedures for posts This is internal guidance for use by entry clearance staff on the handling of appeals lodged outside the United Kingdom (UK). It is a live document under constant review and is for information only. ... APL 2.5 Appeal allowed - no Directions given Post receives an allowed determination and Tribunal has not given directions. SAT has not applied to court for the case to be reviewed. Entry clearance appeals are considered on the basis of the facts at the time of the original application not at the date of the appeal hearing. An allowed appeal means that the IJ has ruled that the ECO was wrong to refuse entry clearance not that the applicant is entitled to entry clearance. If the applicant still wants to travel, the ECO should normally issue the entry clearance as quickly as possible unless : • there has been a significant and material change in circumstances since the refusal decision of which the Tribunal would be unaware; or • there has been a material deception which has come to light of which the Immigration Judge would not have been aware; • the judge has failed to adequately consider the evidence or facts of the case in his determination; or • the results of checks that instigated prior to refusing applicant came back after the appeal was heard. If the above circumstances apply, Post should first consider challenging the determination (see APL 2.5 below). If unsuccessful the ECO should then consider re-refusing the applicant (see APL 2.7 below)."
"APL 2.7 Re-refusing an application where appeal is allowed but no directions given An ECO should normally act in accordance with a determination unless the circumstances in APL 2.5 apply Before re-refusing an applicant, Post must first ask the UKBA Specialist Appeals Team (SAT) to challenge the decision (see APL 2.6 above). If the SAT challenge the decision, the ECO must take no action until UKBA inform them of the final appeal determination. An ECM must endorse any re-refusal. Post must: • copy the re-refusal notice to the AIT to link with their file; • send a cover note to advise the Tribunal that the appellant has been re-refused and [the appellant] may seek a direction under Section 87(1) of the 2002 Act to direct the ECO to issue entry clearance; • ask the Tribunal in the covering note to consider the ECO's reasons for refusing to issue entry clearance when considering any application for a direction. The reasons why the ECO was not prepared to issue entry clearance should be clear and factual and any relevant documentary evidence should be provided"
"APL 2.15.1 What is the timeframe? Once Post is notified of an allowed appeal, the appellant should, within a maximum of three weeks, either be invited to resubmit their passport so that a visa can be issued or (in a limited number of cases) so that a visa can be re-refused. Unreasonable delays in contacting appellants with allowed appeals often result in complaints and requests for judicial review."
"So far as the more general submissions of [counsel for the applicant] are concerned, namely his plea that this court should accord due respect to the binding judicial determination of an adjudicator, I should add that the upshot of the argument and the decision of this court is not that the decision of the adjudicator is not binding and effective as between the ECO and the applicant at all. It will, in the circumstances which I have indicate, be effective to the limits which the law permits it to be effective. It will be effective so as to provide the framework for the decision which has to be made, and the framework of the decision is the facts as they are at the time the Entry Clearance Officer has to reconsider the matter in the light of the adjudicator's decision. The Entry Clearance Officer would not be free to depart without reason from the determination of the adjudicator so far as it relates to facts which remain the same at the time the Entry Clearance Officer is considering his position."
"Conversion by keeping: demand and refusal The ordinary way of showing a conversion by unlawful retention of property is to prove that the defendant having it in his possession, refused to surrender it on demand. Indeed such a demand is generally a precondition of the right of action for detention 1: the mere unpermitted possession of another's chattel is not as such a conversion of it"
"Demand must be unconditional and specific The demand should be unconditional in its terms, .... ,. If the demand is unclear or equivocal, for example because it is merely a request for "immediate commencement of the process of return" of goods, it may not be enough."
"Refusal must be unconditional. The refusal must also be unconditional 115. A person on whom a demand for goods is made may not have them immediately available even though they are under his control;... he cannot be required to act at a moment's notice, or refuse at his peril. . .... a person in possession of another's goods has the right to a reasonable opportunity to check whether the person asking for them is really entitled to them."
"Mires v. Solebay (1678) 2 Mod 242. In Schwarzschild v. Harrods[2008] EWHC 521 (QB) ... the court seemingly thought that mere inaction in the face of a demand could not be a refusal, but this must be doubtful. A defendant in possession can hardly be allowed to stymie conversion proceedings by simply doing and saying nothing."
"Delay in complying with demand. A bailee or person in possession of the goods of another must normally deliver them up forthwith on demand. .... delay in complying with the demand will not only render the defendant liable in conversion, but will normally make him an insurer of the goods in respect of all subsequent damage on the basis that he is thereafter in breach of bailment ... . However in the event of doubt as to the claimant's entitlement the defendant is entitled to a reasonable time to make enquiries. ... But, once the reasonable time has elapsed the defendant must hand over the goods. If he does not do so he will be liable in conversion and in addition the goods will be entirely at his risk thereafter."
"I require my passport as soon as possible to go back to my job, because I am not doing a land job in Sri Lanka, I am travelling all over the world as Chief Officer in Merchant Navy"
"The course I applied for visa was already over on last March 2010 and I could not book a new course immediately this year."
"It is necessary to find as a fact that there was a demand and refusal before the issue of the writ ... to say that [the letter of 16 May] is to be construed as evidence of any unlawful act is to do violence to its construction ... The conclusion therefore at which I have arrived is that up to [the] date [of issue of the writ] there was nothing equivalent to a wrongful refusal or conversion on the part of the defendant and that the action therefore cannot be maintained."
"Whether the action is one of detinue or trover [conversion], proof that the detention is wrongful and amounts to a conversion forms the gist of the action; there must be an element of wrong; the mere fact of possession of the article is not enough to support the action."
"[[Paton] has this to say under the heading "
‘If the depositee is in mora (i.e. if he improperly refuses to restore the goods), then the goods are held at his peril. This was the rule of civil law, but as the refusal to restore would constitute the tort of detinue, an action for the full value of the chattel would lie at once. Subsequent restitution would merely go to reduction of damages’
"That that is right is plainly supported by other authorities: see, for example Clayton v Le Roy.... It is unnecessary to refer to the facts of that case, but the case on which the plaintiff is really entitled to rely is Shaw & Co v Symmons & Sons[1919] 1 KB 799 ."
"It will be seen by analogy there was no refusal to deliver the goods in that case. There was merely a delay in complying with the demand and it proved to be inexcusable delay."
“51. The principal reason advanced by Mr ter Haar to support the argument that the Secretary of State owes a duty of care on the grounds of an assumption of responsibility is that the person with care is not obliged to have recourse to the 1991 Act. ... But that, in my view, is not a sufficient reason for holding that there is an assumption of responsibility by the Secretary of State whenever he performs his functions under the statutory scheme. The critical question is whether the Secretary of State voluntarily assumes responsibility and that does not depend on whether the parent chooses or is obliged to make an application for a maintenance assessment. ... 54. When a person with care applies to the Secretary of State for a maintenance assessment to be made, he is obliged to make it. In making the assessment, he is not a volunteer in any sense. It is true that the 1991 Act also gives the Secretary of State certain discretionary powers, for example, the power to make an interim maintenance assessment, to collect maintenance and to seek liability orders for the purpose of enforcement. But in my judgment, if he decides not to exercise one of these statutory powers, he is not, in making that decision, assuming a voluntary responsibility towards those who are foreseeably affected by it. Likewise if he decides that he will exercise one of the powers, it is not apt to describe what he does when he exercises the power as a voluntary assumption of responsibility. He is not doing anything that is “akin to contract”
“In deciding whether it is fair, just and reasonable to impose a duty of care on a public authority in the carrying out of its statutory functions, it is necessary to consider whether such a duty would be inconsistent with the statutory framework in which it is acting. … . Thus Lord Browne-Wilkinson said in X v Bedfordshire County Council at p 729: ‘the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done’. In Stovin v Wise … Lord Nicholls of Birkenhead said that the common law should not impose a concurrent duty which is inconsistent with the statutory framework: ‘A common law duty must not be inconsistent with the performance by the authority of its statutory duties and powers in the manner intended by Parliament, or contrary in any other way to the presumed legislative intention.’ ” ‘the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done’. ‘A common law duty must not be inconsistent with the performance by the authority of its statutory duties and powers in the manner intended by Parliament, or contrary in any other way to the presumed legislative intention.’ ”
"In my view the judge would have been correct to hold that no common law duty of care was owed to the claimant company by either (i) the unidentified employee .. who inserted the incorrect UTR on the ... form ... or (ii) the unidentified employee ... who posted the ... certificate to the wrong address. As it seems to me, those were plainly administrative mistakes made in the ordinary course of processing the application ... . In the circumstances that ... the legislature did not intend to impose a statutory duty, enforceable by an individual in a private law suit, to process such applications within a reasonable time, it would be wrong for the courts to recognise a common law duty owed by the Revenue's employees to take care to avoid delay. ..."
“12. ... . The statutory function in issue here is the allocation to the Home Secretary bys.4(1) of the Immigration Act 1971 of the power to give leave to remain in the United Kingdom. This being now conceded not to be the kind of case in which a statutory duty itself carries a civil cause of action for its breach, it is on principle highly unusual for the courts to graft a duty of care on to it. Barrett v Enfield BC[2001] 2 AC 550 and Phelps v Hillingdon BC[2001] 2 AC 619 are among the rare instances, but they find no analogy in the present claims, not least because what is in issue here is not a duty at all but a power. While common law negligence can occur in the course of exercising a statutory duty or power (a gas meter reader lighting a cigarette, as was suggested in the course of argument, or an environmental health officer breaking the restaurant’s china), it cannot on principle occur in the actual discharge of the function and may well be inconsistent with or contra-indicated by the statutory scheme. Here the Home Secretary has public duties to perform, in the course of which she is required to act in accordance with the law. It is public law (including, I would interpose, the law of legitimate expectation, which today is the principal means by which policy is enforced or waived) which sets the remedies for breach – remedies which do not include damages. Save in particular circumstances unlike those we are concerned with, the common law has not recognised a concurrent duty of care outside or alongside the statutory framework, even if there is no other means of claiming damages. Nor, adopting the Caparo test, is it fair or just or reasonable to do so when other recourse is in fact available, in the present cases to the Parliamentary Ombudsman, who has power to recommend the payment of compensation.”
‘….. 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. In conducting their inquiries, and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply. ……’ 16. The reasoning which underlies W was more fully spelt out by Dyson LJ, as he then was, in Rowleyv Secretary of State for Work and Pensions[2007] EWCA Civ 598 ..... 17. While the Home Office in dealing with asylum claims is, in broad terms, acting under statute, practically everything it does in the exercise of the large s.4(1) function is dictated by policy, whether in the form of immigration rules or of departmental policies or instructions. There is therefore no direct analogy in the decided cases we have looked at. But they have in my view one important theme and one background consideration each of which is relevant to what we have to decide. 18. The theme is the availability of other, possibly equivalent, forms of redress. This is not a simple tick-box indicator. Its absence, however serious its consequences, may not be enough to establish a duty of care: see Jain ... . But its presence, by analogy with a comprehensive statutory scheme such as was present in W, may well be sufficient, even assuming sufficient proximity, to make it less than fair, just and reasonable to add a common law liability in negligence. I will return to this below. 19. The background consideration is the recent work of the Law Commission on the question of damages for public law wrongs and on the related question of redress through a statutory commissioner or ombudsman. Sedley LJ then set out in some detail the history of the Law Commission’s project and its ultimate conclusion not to proceed with any reform of the law on state liability. He continued: “24. The other, more directly in point, is that, whatever the reason, a faute lourde system of state liability in damages for maladministration, of the kind that has worked well in France for more than a century, is not on the cards in the United Kingdom. Apart from the limited private law cause of action for misfeasance in public office and the statutory causes of action in EU law and under the Human Rights Act, there is today no cause of action against a public authority for harm done to individuals, even foreseeably, by unlawful acts of public administration. The common law cause of action in negligence coexists with this doctrine and may on occasion arise from acts done or omissions made in carrying out a public law function; but it may not impinge on the discharge of the function itself, however incompetently or negligently it is performed. 25. As to this, however, there is frequently, though not always, recourse in the modern state to the independent judgment of an ombudsman. As I said earlier, this too can be relevant to the question whether the common law ought by increment to afford a remedy. ... 26. It is common ground in the present cases that complaints such as those of the claimants fall within the Parliamentary Ombudsman’s remit. They have not yet gone that far because they are being considered internally. This is not a statutory process but a voluntary preliminary step. If it affords just satisfaction, well and good. If not, the claimants can invite the Ombudsman to adjudicate and to recommend a payment of compensation. ... 27. A number of leading cases touch on the continuing possibility of incremental change at the margins of common law liability, not in order to commend it but in order not to exclude it. Incremental change has both attractions and problems, not the least of which is that it can go in more than one direction. All that I think it necessary to say here, however, is that while nothing in this judgment is designed to constrict it, there is nothing in the present cases, in the legal situation I have outlined, to call for it.” ‘….. 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. In conducting their inquiries, and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply. ……’
"1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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, of the for the protection of the rights and freedoms of others."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"a Russian citizen holding no passport is impaired in his rights to a degree amounting to an interference with his private life. The law requires that a person who wishes to find employment, receive free medical care, receive mail, marry, vote, use notarial services, install a telephone line, save money when buying foreign currency or travel by train or aeroplane must be able to produce a passport. Furthermore, not having a passport is in itself an administrative offence."
"It is difficult to imagine how the private life of someone with no prior nexus to the United Kingdom would require admission outside the rules for the purpose of study. There is no human right to come to the United Kingdom for education or other purposes of truly voluntary migration."
"However the appellant has been admitted to the UK for the purpose of higher education and has made progress enabling extension of stay in that capacity since her admission in 2007. We acknowledge that that gives no right or expectation of extension of stay irrespective of the provisions of the Immigration rules ... Nevertheless people who have been admitted on a course of study at a recognised UK institution for higher education, are likely to build up a relevant connection with the course, the institution, an educational sequence for the ultimate professional qualification sought, as well as social ties during the period of study. Cumulatively this may amount to private life that deserves respect because the person has been admitted for this purpose, the purpose remains unfulfilled, and discretionary factors such as misrepresentation or criminal conduct have not provided grounds for refusal of extension or curtailment of stay."
"... the Convention, differing perhaps in this respect from the law of the European Union, protects assets which have a monetary value not economic interests as such"
“It might be thought unfair that a professional person such as a barrister cannot capitalise future earnings and therefore enjoy “goodwill” as a protected possession. However, to address any such unfairness by treating the barrister's practice certificate as a “possession” would seem to me to risk creating unjustified discrimination against those carrying on an unlicensed activity who also do not or cannot capitalise future earnings”