MG, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 3470 (Admin)

Case No CO/1040/2015[2015] EWHC 3470 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/12/2015
Before
MR MICHAEL KENT QC(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE QUEEN ON THE APPLICATION OF MGClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Martin Westgate QC and Alison Pickup (instructed by Public Law Project) for ClaimantDavid Mitchell (instructed by the Government Legal Department) for DefendantHearing Hearing date: 5 November 2015
JudgmentMichael Kent QC :RULING on Claimant’s claim for damages
[1]On the handing down of judgment on 5 November I directed that the claim for damages pursuant to section 8 (1) of the Human Right Act 1998 (the HRA) should be reserved to myself. I indicated and counsel accepted that the question whether, and if so in what amount, damages should be awarded ought to be decided by me on the papers and without a further hearing and I have had the benefit of helpful written submissions from both parties.[2]Section 8 of the HRA provides as follows: “(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and(b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining— (a) whether to award damages, or (b) the amount of an award, 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.” (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act,[3]That section thus creates a power (not an obligation) to award damages but it is available only if, taking account of all the circumstances including the effect of other relief or remedy granted, it is “necessary to afford just satisfaction”. This therefore involves a judgment and a discretion and both are qualified by the need to look to relevant decisions of the European Court of Human Rights (ECtHR) for guidance. In R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 HL Lord Bingham said:
“In deciding whether to award damages, and if so how much, the court is not strictly bound by the principles applied by the European Court in awarding compensation under article 41 of the Convention, but it must take those principles into account. It is therefore to Strasbourg that British Courts must look for guidance on the award of damages.”
[4]As I made clear in my judgment the error of law on the part of the Secretary of State arose from a failure to understand or properly respond to the complaint that the location of the claimant’s accommodation and his limited means had such an impact on his continued contact with his son that, if he could not be housed nearer to Canterbury, he ought to be granted an exceptional allowance under section 96 (2) of the Immigration and Asylum Act 1999 Act. This amounted to a failure to comply with section 55 of the Borders, Citizenship and Immigration Act 2009 and to an unjustified interference with the Claimant’s and his son’s rights guaranteed by Article 8 of the Convention. However I also held that the Claimant had failed to persuade me that the placing of accommodation near Portsmouth was in itself an unjustified interference with such rights.[5]Mr Westgate QC in his written submission received on 20 November accepted that damages under the HRA are not awarded as of right or as a matter of course. He referred me to the guidance at para [65] of the judgment of the Court of Appeal (Lord Woolf CJ, Lord Phillips of Worth Matravers MR and Auld LJ) in Anufrijeva v LB Southwark [2004] Q.B. 1124:
“Where there is no pecuniary loss involved, the question whether the other remedies that have been granted to a successful complainant are sufficient to vindicate the right that has been infringed, taking into account the complainant's own responsibility for what has occurred, should be decided without a close examination of the authorities or an extensive prolonged examination of the facts. In many cases the seriousness of the maladministration and whether there is a need for damages should be capable of being ascertained by an examination of the correspondence and the witness statements.”
[6]I have been referred by Mr Westgate to a number of decisions of the ECtHR where compensation was awarded in cases where parental contact with a child was prevented: Ciliz vNetherlands (Application no. 29192/95 judgment 11.7.00); Sommerfeld v Germany (2003) 36 E.H.R.R. 33; Sahin v Germany (2003) 36 E.H.R.R. 43; Lebbink v Netherlands (2005) 40 EHRR 18 and Anayov Germany (2012) 55 E.H.R.R 5. These were cases concerned with violations of Convention rights by domestic courts exercising a family jurisdiction which had refused contact between absent parents and their children. Even where the Strasbourg Court was not able to find that, without the mistakes made, contact would probably have been granted awards of damages were made on the footing that the parent had “lost the opportunity to ensure his interests in the access proceedings” (Sahin at para [67]). Further in Gluhaković v. Croatia 21188/09 (Judgment 12.4.11) the ECtHR awarded compensation for an interference resulting in reduced contact as opposed to a complete denial of contact.[7]Mr Westgate submits that damages will normally be awarded unless the circumstances are exceptional such as in Zawadka v Poland (2007) 44 EHRR 9 where the applicant had abducted his child to whom access had been wrongly refused. He also submits that if the Strasbourg Court is prepared to award damages on a “loss of opportunity” basis the position must be a fortiori where it can be shown on the balance of probabilities that there would in fact have been greater contact between father and son “even if the degree of interference is less severe than in some of the cases”.[8]He says that there is unchallenged evidence in the papers showing how his client has been affected by the restrictions on his ability to see his son including the Claimant’s and EW’s witness statements and a report by a counsellor, Ms Ruth Allen, stating that he suffered from symptoms of depression and anxiety as a result.[9]Mr Mitchell in his written submissions dated 19 November referred to Greenfield and the comment of Lord Bingham at para [9] that “the focus of the Convention is on the protection of human rights and not the award of compensation”. In addition he cited para [56] of the judgment in Anufrijeva approving statements in a textbook:
“In essence this involves determining the ‘appropriate’ remedy in the light of the particular circumstances of an individual victim whose rights have been violated, having regard to what would be ‘just’, not only for that individual victim, but also for the wider public who have an interest in the continued funding of a public service.” and “Damages are not an automatic entitlement but, as I also indicate, a remedy of ‘last resort’.” “Damages are not an automatic entitlement but, as I also indicate, a remedy of ‘last resort’.”
[10]He noted that the claim for damages was not even expressly set out in the Claim Form which referred simply to a claim for “Just satisfaction for breach of his Article 8 rights” which can of course take other forms. Mr Mitchell submits that the relief already granted amounts to just satisfaction under s.8(3) HRA.[11]In my judgment an award of damages is not necessary in this case in light of the relief already granted nor do I regard it as just or appropriate to make such an award.[12]I am not persuaded that the Strasbourg cases where damages were awarded for denial or restriction of contact with a child imposed by a Court order necessarily provide a useful analogy with this case. Here there had been no prohibition imposed by the State on the claimant seeing his son as often as he wished. The problem had been the failure to provide him with the cost of his doing so. While it may be said that that comes to the same thing in practice, in my view there is an important qualitative difference between a denial (or a significant restriction) imposed by a Court order and a failure to come to the aid of someone having difficulty maintaining as much contact as he wished to have. Awards in cases where contact is denied by a Court will, it seems to me, be as much designed to compensate for the feelings generated by the very fact that an absolute ban (or an absolute restriction) has been imposed as for the actual impact on the claimant’s enjoyment of family life in practice. Thus in Sahin the Court, under the heading Just satisfaction and damages. (Art.41), said:
“The applicant was the victim of procedural defects in these proceedings as well as of discrimination, both aspects being intimately related to the interference with one of the most fundamental rights, namely, that of respect for family life.”
[13]This would explain why awards are justified even though it has not been shown that, without the procedural error denying the claimant a fair hearing, his application to be allowed contact would in fact have succeeded. There is an analogy with the Parole Board delay cases where awards for violation of Art 5(4) are made though it is not possible to say that an earlier Parole Board hearing would have led to the claimant’s release. In Sturnham v Parole Board [2013] 2 A.C. 254 SC there was an award of £300 in damages where there had been a six month delay in the hearing by the Parole Board. A significantly greater award would however have required proof that, but for the breach, he would in fact have been released earlier.[14]In the end I must, as urged to do so by the Court of Appeal in Anufrijeva, look briefly at all the circumstances so as to determine whether the obstacles in the way of regular contact between the Claimant and his son have been such that, in addition to, 1. the quashing of the relevant decision, 2. an order requiring a reconsideration and 3. a Declaration that the Claimant’s Art 8 rights have been unjustifiably interfered with, it is both necessary to award damages for non-pecuniary loss and just and appropriate to do so.[15]Mr Westgate says that, but for the Defendant’s error, “it must follow that the Claimant would have had more regular contact with his son (indeed the Defendant has recently agreed to fund travel for fortnightly visits)”. He says that this interference with his client’s rights “cannot possibly be described as insignificant or unimportant and [t]his has already passed the threshold of severity necessary to support a finding that there is a breach”.[16]It must not however be overlooked that the claim for damages is made by the Claimant solely on his own behalf. I am not considering a claim by his son. That is important because an interference with the right to family life contrary to Article 8 will inevitably impact on at least two people only one of whom may (as here) be a claimant seeking damages under section 8 of the HRA. Those two or more people may be unequally affected by the infringement. My principal concern in this case was the effect of the practical obstacles to regular contact on the Claimant’s young son (and that was the only relevant consideration under section 55 of the 2009 Act). In my judgment that is a far more important aspect of the case than the effect on the Claimant himself who, as a failed asylum seeker convicted of a serious criminal offence before he met EW, has always been at high risk of deportation and thus of losing contact with a subsequently established family.[17]Further the Claimant has not been wholly unable to maintain contact with his son: in addition to seven meetings in person in the ten months or so since he moved to Cosham, there has been regular contact through Skype (which though unsatisfactory for his young child must have had value for the Claimant).[18]In addition I think it is not inappropriate to take account of the Claimant’s character as disclosed by his conviction for a serious sexual offence. In McCann v United Kingdom (1995) 21 EHRR 97 the Court declined unanimously to award compensation despite its finding of a violation of Art 2 (right to life) stating:
“… having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar, the court does not consider it appropriate to make an award under this head.”
That and the comment in Anufrijeva that regard should be had to the interests of “the wider public” show in my view that the conduct and character of the claimant seeking damages for the violation is a relevant consideration. It might be said that if that is so the claims for damages of prisoners in the Parole Board delay cases ought to have been refused but it can be understood why in such a case the government would not oppose an award solely on the ground that the character of a claimant (who will have served that part of his sentence necessary for punishment and retribution) makes it inappropriate. Very often by the time the matter comes to Court the Board has in fact determined his case so there may be no other appropriate remedy to be granted.[19]It is also relevant in my view to the appropriateness of an award that the claimant receives weekly sums under Section 96(1)(b) of the 1999 Act for “essential living needs” only because he would otherwise be destitute. Any award of damages would necessarily impact on his eligibility for such assistance and public money would to an extent be following a circular path.[20]Further I think it is relevant to the claim for damages that the Claimant has been spending a considerable proportion of his limited means on smoking. Though I held in para [29] of my judgment that this was no answer to the complaint that the Defendant had failed to understand or properly respond to the Claimant’s request for additional funds beyond the bare amount needed to avoid destitution, the fact that when he was not in fact being provided with additional funds he wasted such a large part of his limited means in that way must shed light on how much he has been affected by the problem he faced travelling to see his son—otherwise he would surely have given priority to the cost of return tickets to Canterbury over his smoking habit. While that in isolation may be regarded as only relevant to the quantum of any award, in combination with the other factors I have identified in my view it informs the decision whether it is necessary to make such an award and my discretion whether it is just and appropriate to do so.[21]Insofar as reliance is placed on the report by Ms Ruth Allen Mr Mitchell makes the point that she does not appear to have any medical qualifications and her report does not comply with CPR Part 35. I do not ignore it but can give it little weight. While Mr Mitchell has not taken a pleading point as a threshold objection to the claim for damages being advanced the fact that Ms Allen’s report and the witness statements of the Claimant and EW were not challenged does not carry as much force as it might have if a claim for damages had been clearly articulated before the hearing.[22]For all those reasons I decline to make an award of damages in this case.