AD v The Home Office [2015] EWHC 663 (QB)

Case No TLQ/13/1431[2015] EWHC 663 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/03/2015
Before
THE HONOURABLE MRS JUSTICE PATTERSON DBE
Between
ADClaimantTHE HOME OFFICEDefendant
Marie Demetriou QC and Alison Pickup (instructed by Wilsons Solicitors LLP) for ClaimantRussell Fortt (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 24 February 2015
Judgment

Legal Framework

[1]On 6 November 2014 William Davis J ordered that there be a trial to determine the following preliminary issues. Those issues are whether, if the claimant proves the facts pleaded: a) There was a breach of the statutory duty set out in paragraph 28 of the particulars of claim which give rise to an actual claim in damages for breach of EU law and, in particular, whether the relevant EU law directives were intended to confer rights on individuals; b) Any breach by the defendant of those duties was sufficiently serious to give rise to a claim for damages; c) There was a causal link between any such breach and the loss and damage suffered by the claimant.[2]The questions arise because, at paragraph 28 of his particulars of claim, the claimant alleges that from the time he claimed asylum on 13 January 2008 the defendant had a number of statutory duties to him under section 2(1) of the European Communities Act 1972. They included the following : a) when assessing an application for refugee status or subsidiary protection status, to take into account “all relevant facts as they relate to the country of origin at the time of taking the decision on the application: including laws and regulations of the country of origin and the manner in which they are applied”; b) to apply the “safe country of origin concept” in respect of an asylum seeker only if the person “has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances”; c) to grant refugee status to him if he qualified as a refugee; d) to grant subsidiary protection status to him if he was eligible for such status, such a person being eligible if there were substantial grounds for believing that, if he returned to his country of nationality, he would face a real risk of suffering serious harm. Serious harm includes “torture or inhuman or degrading treatment or punishment of an applicant in the country of origin”; e) to respect the principle of non refoulement.[3]At the hearing it was contended that, by reason of those failures, there were breaches of: i) Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive); and ii) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting or withdrawing refugee status (the Procedures Directive).[4]If the matter is resolved in the claimant’s favour then the matter will proceed to a trial of the factual issues and any remaining issues of law within a trial window starting on 27 April 2015.

The Factual Background

[5]The following facts are taken, as it is agreed that I should for this hearing, from the particulars of claim and the contemporaneous documents.[6]The claimant is a Mongolian citizen who arrived in the United Kingdom on a false passport in 2004. On 13 January 2008 he was arrested by the police. The following day he claimed asylum. He was detained and transferred to the Oakington Immigration Removal Centre for his asylum claim to be processed under the detained fast track.[7]The claimant was interviewed about his asylum claim on 19 January 2008. He said in his interview that he had been a monk belonging to a minority Buddhist sect in Mongolia. Members of his sect were beaten and tortured by other monks because they wanted the claimant and other members of his sect to change their religious beliefs.[8]The claimant said that he had been repeatedly beaten by members of the majority sects because of his refusal to join them. He had been forced to eat chewing tobacco and beaten if he refused to do so. He was forced to drink large quantities of fatty soup and beaten and tied to a tree if he refused. He had been sexually assaulted by a group of monks from the majority sect in front of some children whom he was teaching. That treatment continued until he left the monastery in February 2003.[9]The claimant had been reported to the police by members of the majority sect for stealing some antique religious statues from the monastery. He received a summons to attend Bayangol police station in June 2003 as a result of the investigation into the alleged crime. Later, he received a summons to attend court but did not do so. He was innocent of the allegation but five or six members of the majority sect had signed statements saying that he was responsible for the theft. The claimant was afraid that he would be sentenced to a long term of imprisonment.[10]On 26 January 2008 the claimant’s legal representatives, the Immigration Advisory Service, submitted further representations to the defendant enclosing documents received from Mongolia, namely, a press report relating to the theft of the statues and a court summons dated 19 August 2003.[11]On 27 January 2008 the defendant rejected the asylum claim and set directions for the removal of the claimant to Mongolia by a scheduled flight on 3 February 2008.[12]The reasons for refusal letter of 27 January 2008 concluded that the claimant was not at risk of persecution for a Convention reason in Mongolia for the following reasons (the references in brackets are to the relevant paragraphs in the decision letter): i) The evidence suggested that there was a general freedom of religion [22]; ii) The claimant had not experienced any problems from different monastic sects once he had left the monastery in February 2003 [22]; iii) The claimant could have sought protection from the Mongolian authorities but had failed to report the beatings to the police until after he had left the monastery in February 2003 since when he had failed to follow up his complaints [24 to 26]; iv) There is an effective police force within Mongolia and any problems within the police are the result of failures in supervision and discipline rather than any concerted policy [29]; v) The claimant had never been arrested in connection with the alleged theft of the statues and he was able to leave Mongolia using his own national passport without any problem [45]; vi) The claimant’s fear was of prosecution and not persecution. If there were charges outstanding against him then he could expect a fair trial under an independent and properly constituted judiciary [46 and 47]; vii) The claimant could relocate within Mongolia if he felt at risk on his return [48]; viii) There were other parts of Mongolia to which he could go where he did not have a well founded fear of persecution and to which it was reasonable to expect him to go [54]; ix) Even if the claimant was found to be guilty after a trial and had to serve a prison sentence it was not considered that the prison conditions in Mongolia would constitute a breach of Article 3 of the European Convention on Human Rights (ECHR) [56]; x) The claimant’s asylum claim was one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applied. As a result the defendant certified that the claim was clearly unfounded.[13]On 29 January 2008 the Immigration Advisory Service requested the defendant to defer removal of the claimant to enable a medical report to be obtained from the Medical Foundation for the Care of Victims of Torture (an appointment was made for 16 February 2008) and to enable the Immigration Advisory Service to obtain translations of, and instructions on, documents which the claimant had received from Mongolia showing that he was now being actively pursued on criminal charges.[14]On 30 January 2008 the defendant refused the request. In a letter of that date the defendant said that it was accepted in the decision letter that the claimant was under investigation by the Mongolian authorities and the fact that charges had been laid did not alter the decision to refuse the claimant’s asylum. It merely supported the decision to accept the core of the claimant’s case at its highest. The defendant accepted the claimant’s account at its highest of the treatment he had suffered prior to leaving his monastery in February 2003. The fact that he had an appointment for an assessment by the Medical Foundation did not advance his case further as it was not part of the claimant’s case that he experienced further problems after leaving the monastery in February 2003. Further, the letter noted that the claimant had left Mongolia using his national passport containing a Russian visa which was checked at the Russian/Mongolian border where he experienced no difficulties. He had used an agent to facilitate his entry into the UK which he had entered using a false passport and used verbal and documentary deception. He had made no attempt to claim asylum until one day after he was arrested by the police.[15]On 3 February 2008 the defendant removed the claimant to Mongolia. He was arrested on arrival in connection with the outstanding criminal charges. He was detained at Gants Hudag Detention Centre in Ulaanbataar in pre-trial detention until 22 April 2009. During the pre-trial detention the claimant was interrogated about the theft of the statues, he was frequently kicked, beaten and strangulation attempted, he was forced to eat two mice on one occasion and forced to kill dogs which was contrary to his religious beliefs. The claimant was twice raped by another prisoner. He was placed in that prisoner’s cell by a guard who knew that rape was the likely consequence.[16]On 22 April 2009 the claimant was convicted after a trial lasting twenty to thirty minutes and sentenced to imprisonment for twelve years for theft of the statues and three years for escaping from Mongolia.[17]The claimant was transferred to Tahir Soyot Prison to serve his sentence. He says that the conditions in that prison were inhuman and degrading. As a result the claimant suffered from poor physical health including tuberculosis. Since returning to the United Kingdom he has been diagnosed with severe chronic post traumatic stress disorder, a major depressive episode and alcohol dependency syndrome attributed to his experiences in Mongolia.[18]On 7 January 2010 the claimant escaped from prison and made his way back to the United Kingdom where he arrived on 12 January. He claimed asylum for a second time. The basis for his claim was mistreatment in prison in Mongolia. That application was refused by the defendant on 17 May 2011.[19]The claimant appealed. On 3 November 2011 the First-Tier Tribunal accepted the claimant’s account of his experiences and said: “He faces a risk of future persecution because the previous events and harm is an indicator of future risk of ill-treatment and harm, and the authorities have records of him, arrested on arrival in February 2008 and the punishment is punitive and the prison authorities will not protect him from ill-treatment by other prisoners, and the police themselves are capable of ill-treating inmates.” [34][20]The defendant recognised the claimant as a refugee and has granted him refugee status and leave to remain in the United Kingdom until 31 October 2016. Legal Framework[1]The Charter of Fundamental Rights of the European Union[21]The UK is bound to act in accordance with the rights protected by the charter whenever it acts within the scope of EU law: Article 6(1) TEU.[22]Article 18 provides that:
“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention on 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty of the European Union and the Treaty on the Functioning of the European Union (hereafter referred to as the treaties).”
[23]Article 19(2) states:
“No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”
[2]Qualification Directive[24]The Qualification Directive was implemented into UK law by a combination of the Refugee or Person in Need of International Protection (Qualification) Regulation 2006 and part 11 of the Immigration Rules. The recitals to the Directive and general principles of EU law make it clear that the Qualification Directive must be interpreted in a manner consistent with the Refugee Convention. Chapter 2 lays down rules on the assessment of applications for international protection (meaning either refugee status or subsidiary protection).

(a) states:

“The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account: a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied.” a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied.”
[25]Chapter 3 lays down rules on qualification for refugee status. Article 13 provides:
“Member states shall grant refugee status to a third-country national or stateless person who qualifies as a refugee in accordance with chapter II and III.”
[26]Chapter 5 lays down rules on qualification for subsidiary protection.

(e) as:

“A third-country national…who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, …would face a real risk of suffering serious harm as defined in Article 15 and to whom Article 17(1) and (2) do not apply, and is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country.”
[27]Article 15 defines serious harm as including, “torture or inhuman or degrading treatment or punishment of an applicant in the country of origin.”[28]Article 18 in chapter 6 provides that:
“Member states shall grant subsidiary protection status to a third-country national or a stateless person eligible for subsidiary protection in accordance with chapters 2 and 5.”
[29]Chapter 7 lays down rules, without prejudice to the application of the Refugee Convention, as to the content of international protection, including: a) A duty to respect the principle of non refoulement (Article 21); b) Rights for those granted refugee status or subsidiary protection status to: i) A residence permit; ii) A travel document; iii) Access to employment; iv) Access to education; v) Social assistance; vi) Access to healthcare.[3]The Procedures Directive[30]Its recitals include (at recital 17) that a key consideration for “the well-foundedness of an asylum application is the safety of the applicant in his/her country of origin. Where a third country can be regarded as a safe country of origin, member states should be able to designate it as safe and presume its safety for a particular applicant, unless he/she presents serious counter-indications.”[31]Recital 21 continues:
“Designation of a third country as a safe country of origin for the purposes of the Directive cannot establish an absolute guarantee of safety for nationals of that country.”
[32]Article 8 sets out the requirements for the examination of applications. Article 8(2) requires decisions on applications for asylum to be taken after an “appropriate examination.” Article 8 (2)(a) requires the decision to be taken “individually, objectively and impartially” and by virtue of Article 8(2)(b) on the basis of precise and up to date information obtained from various sources such as the United Nations High Commissioner for Refugees (UNHCR) as to the general situation prevailing in the countries of origin.[33]Article 30 permits member states to retain or introduce a list of designated safe third countries to which Article 31 applies.[34]Article 31(1) states that:
“A third country designated as a safe country of origin in accordance with either Article 29 or 30 may, after an individual examination of the application, be considered the safe country of origin for a particular applicant for asylum only if: a) he/she has the nationality of that country; or b) he/she is a stateless person and was formally habitually resident in that country and he/she has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her circumstances and in terms of his/her qualification as a refugee in accordance with Direction 2004/83/EC.” a) he/she has the nationality of that country; or b) he/she is a stateless person and was formally habitually resident in that country and he/she has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her circumstances and in terms of his/her qualification as a refugee in accordance with Direction 2004/83/EC.”
[35]Article 39 of the Directive requires that asylum applicants have the right to an effective remedy before a court or tribunal against a decision to reject an asylum application. The question of whether that remedy has suspensive effect is to be determined by national rules “in accordance with member states’ international obligations.”[4]Non-Suspensive Appeals in UK Law[36]In general, a person who has made an asylum or human rights claim in the UK has a right of appeal to an independent tribunal against a decision to reject that claim prior to removal from the UK and the person appealing may not be removed for as long as that appeal is pending: section 92(4) and section 78 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).[37]Under section 94(2) of the 2002 Act where the Secretary of State certifies an asylum or human rights claim is clearly unfounded, the right of appeal may only be exercised after removal from the UK. Section 94(3) provides that:
“If the Secretary of State is satisfied that an asylum seeker…is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded.”
[38]Mongolia is listed in section 94(4) of the 2002 Act. It was added to the list on 2 December 2005. Section 94(5) required the Secretary of State, before adding a country to the list, to be satisfied there was no general risk of persecution there, and that removal there would not be in general breach of the Human Rights Convention.[5]Claims for Damages for Breaches of EU Law[39]The conditions for a claim for damages for breach of EU law were summarised by Carnwath LJ (as he then was) in Byrne v Motor Insurers Bureau [2009] QB 66 at [32]:
“It is clear from the case-law of the Court (see para 20 above) that three conditions must be satisfied for a Member State to be required to make reparation for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible: i) the rule of law infringed must have been intended to confer rights on individuals; ii) the breach must be sufficiently serious; and iii) there must be a direct causal link between the breach of the obligation resting on the State and the loss or damage sustained by the injured parties.” i) the rule of law infringed must have been intended to confer rights on individuals; ii) the breach must be sufficiently serious; and iii) there must be a direct causal link between the breach of the obligation resting on the State and the loss or damage sustained by the injured parties.”
[40]According to case law a breach of Community law was sufficiently serious if a Member State, in the exercise of its rule making powers, manifestly and grossly disregarded the limits on those powers. A failure to take any measures to transpose a Directive in order to achieve the result prescribed within the period laid down for that purpose constituted per se a serious breach of Community law and consequently gave rise to a right of reparation for individuals suffering injury if the result prescribed by the Directive entailed a grant to individuals of rights whose content was identifiable and a causal link existed between the breach of the State’s obligations and the loss and damage suffered. The assessment of the seriousness of a breach might include consideration of factors such as the clarity and precision of the rule breached: see R (Negassi) v Secretary of State for the Home Department [2013] EWCA Civ 151. Within the multi factorial test no single factor is necessarily decisive. As has recently been held in Delaney v Secretary of State for Transport [2014] EWHC 1785 (QB) at [85]:
“Context is all: in a situation where the Member State's discretion is minimal or non-existent, a material breach of clearly worded provisions of Community law with significant consequences for individuals will often constitute a sufficiently serious breach for these purposes, and (as a corollary, but no more) a manifest and grave disregard of the relevant obligation.”
[41]In Byrne, holding that liability was established in principle, Carnwath LJ said:
“The "sufficiently serious" criterion laid down by the European Court of Justice for Francovich liability is not a hard-edged test. It requires a value judgment by the national court, taking account of the various factors summarised by the court in Evans. In the present case the important points to my mind are three-fold: the relative precision of the requirement, following Evans; the serious consequences of failure to comply; and the clear warning given in Evans of the need to make the comparison.”
Submissions[42]The claimant submits that the defendant was in breach of her duties under the Qualification Directive and the Procedures Directive because the claimant had a well founded fear of persecution as evidenced by the findings of the First-Tier Tribunal on 3 November 2011. The defendant had a duty to recognise the claimant as a refugee and not to refoul him. The question for determination at this stage is, therefore, whether the defendant’s breaches give rise, on the claimant’s case taken at its highest, to an actionable claim for damages. That exercise involves an analysis of the three Francovich conditions (Francovich v Republic of Italy [1995] ECR 1995 I-3843), set out in paragraph 1 of this judgement.

Condition (i): Do the Directives Confer Rights on the Individual?

[43]The claimant submits that this issue needs to be considered by reference not only to the articles in the Directive but to the recitals. In the Qualification Directive recitals 6 and 10 show that what is conferred are rights to individuals. Article 4 provides for the assessment of facts and circumstances in an application for international protection. Article 4(1) is clear in its wording that what is imposed is a shared duty with the applicant. It reads:
“Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.”
[44]Article 4(3) is also clear in that it provides for the assessment to be carried out on an individual basis. Article 4(4) shows the caution that the defendant has to exercise when the claimant puts forward evidence of a real risk of suffering serious harm. Article 13 imposes a duty on the defendant to grant refugee status if the criteria are satisfied: there is no discretion. Article 18 confers a right on an individual to be granted subsidiary protection. Article 21 imposes a duty to protect the claimant from refoulement.[45]Under the Procedures Directive the relevant recitals are 8, 10, 11, 19 and 21. The relevant Articles are 8, 30 and 31.[46]The claimant submits that the language of the Directives is clear. They confer rights on individuals. Those rights are to protect the individuals, as the recitals make clear. There have been decisions of the ECJ, for example, HN v Minister of Justice, Equality and Law Reform Ireland [2014] WLR (D) 190 which make it clear that rights are conferred on the applicants for their protection. Further examples are set out in the claimant’s skeleton argument, and it is of note that in Negassi (supra) although the claim failed, the Secretary of State did not contest the first condition.[47]The Secretary of State has fallen into error in her argument because she has conflated the domestic test for breach of statutory duty with the first limb in Francovich. The domestic law test is very strict but is not the right enquiry under the European framework. The cases of X v Bedfordshire County Council [1995] 2 AC 63 and W v Home Office [1997] Imm AR 302 are both inapposite. The latter was dealing with the issue of negligence which was not necessary under the Francovich approach. The difference between the domestic and EU approaches is seen in the case of Barco de Vapor v Thanet District Council [2014] EWHC 490 (Ch) where a claim was brought on the basis of a breach of statutory duty and for damages against the State on the basis of Francovich when the defendant had imposed a short temporal ban on the importation of livestock. The claims for breach of statutory duty were rejected by the Court and the claim for Francovich damages dealt with separately.[48]The defendant submits that there is little difference, if any, between the two tests. The Qualification Directive itself draws the distinction between rights and obligations on the State for decision making. The first condition in relation to an EU provision is that the provision is intended to confer rights on individuals. That is distinct from rights which apply to the public at large. The test is the same that domestic courts have to undertake when seeking to establish whether a statutory duty gives rise to private or public law rights.[49]The claimant has cited no authority on the difference between EU law and domestic law on this issue. It is accepted that there is a difference in approach to Francovich damages but not on the first condition. If there was an intention to distinguish, one would expect to see a right of a type which particularly related to an individual.[50]In the case of R (Kuchiey) v Secretary of State for the Home Department [2012] EWHC 3596 (Admin) the claimant sought damages on the basis that he had been a refugee since 2009 when he had arrived in the UK and claimed to be a minor. His claim for refugee status had been refused. He had appealed that decision and been successful. Ultimately, on 1 November 2011, the defendant had granted him leave to remain and backdated his status as a refugee to 13 January 2009. Subsequently, the defendant resiled from backdating but the claimant sought damages on the basis that he had been a refugee since that date. It was submitted that the defendant’s failure to grant backdated refugee status breached Article 13 of the Qualification Directive. Singh J accepted the submissions of the Secretary of State that to so find would involve reading into the Directive words and obligations that were not there. Recognition as a refugee was a declaratory act in the sense that it was founded on facts which substantiated the claim for asylum. It did not help to establish what the claimant needed for his damages claim which was what Article 13 required for the Secretary of State to backdate the grant of refugee status.[51]There is an important distinction which arises between administrative provisions and private law as is evidenced in W v Home Office (supra). There, the Court of Appeal considered whether a duty of care and negligence could be crafted out of the statutory scheme governing immigration and dealt with how one could distinguish between private law and decisions which govern the administrative decision making process. It would be a startling development if the claimant was right and damages could be claimed each time a First-Tier Tribunal decided the defendant had omitted a relevant factor. Discussion[52]The first question is whether the provisions of the Directives confer rights on the individual? In my judgment the Qualification Directive does confer the right on an individual to be granted refugee status under Article 13 if the criteria are met. There is no discretion about that determination.[53]The main purpose of the Directive is to provide minimum standards for the qualification and status of third country nationals as refugees or as people who need international protection and for the content of the protection granted. It also sets common criteria for such administrative decision making amongst member states whilst securing a minimum level of benefits is available for such persons (see recital 6).[54]Article 4(3) sets out matters to be taken into account in the decision making process for the assessment of applications for international protection. It provides for the assessment of the application on an individual basis including all relevant facts as they relate to the country of origin at the date of the application, the relevant statements and documents supplied by the applicant including whether he has or may have been subject to persecution or serious harm. If he has already been subject to persecution or serious harm or direct threat of the same that is a serious indication of the applicant’s well founded fear of persecution or real risk of suffering serious harm. The applicant, therefore, has a right to expect that his assessment will be carried out in the manner prescribed by the Article.[55]Individual rights are conferred also by Article 18, for subsidiary protection status where the criteria are met for the grant of such protection. Article 21 creates a duty on the Member State to respect the principle of non refoulement.[56]That much is clear, in my judgment, from the natural meaning of the words used in the Directive interpreted in accordance with the recitals.[57]However, in addition both parties have referred to a body of case law.[58]In the case of R (Kuchiey) Singh J was clear that the claim failed because there was nothing in Article 13 of the Qualification Directive which conferred a right to backdate the claimant’s grant of refugee status. He determined that the nature of the right was declaratory and prospective. As a result the claim for damages was outwith the right conferred.[59]In R (Negassi) the claim for damages failed but that was because of a failure to demonstrate that the breach was “sufficiently serious” using the multi-factorial test.[60]In AB & Anor v Home Office [2012] EWHC 226 (QB) Richard Salter QC, sitting as a Deputy High Court Judge, dealt with a case about the delay that the Home Office had taken to issue an EEA residence card to the second claimant. The claimant contended that the Home Office should have issued the card promptly, upon application, and that prolonged failure to do so had caused substantial and unlawful interference in the lives of the claimants and their daughter. The residence card had been applied for on 20 March 2008 and was granted on 5 November 2010. The Judge found that there was no breach of EU law provisions relied upon because the provisions did not apply to someone in the second claimant’s position (she was the unmarried partner of the first claimant). The entitlement granted under the Directive was not intended to confer rights on individuals such as the second claimant. The Judge was not saying that the Directives did not confer rights at all. Further, the case is interesting as it involved a claim of four causes of action; some on a domestic basis and some on an EU basis. Although the conclusion on each was the same, namely, that the claim failed, it is clear from the judgment that the reasoning was different (see paragraphs 114 and 117).[61]The defendant relies on X v Bedfordshire County Council (supra) and W v Home Office (supra) but neither were dealing with a claim for damages under the Francovich test. X v Bedfordshire County Council sets the domestic test for a private law cause of action for damages which will arise if the statutory duty was imposed for a limited class of the public whom parliament intended to have a private right of action for breach of duty. In W v Home Office the Court of Appeal considered whether a duty of care in negligence could be crafted out of the statutory scheme governing immigration. It was held that, in gathering information for an immigration decision and in taking that information into account, the defendant was acting pursuant to his statutory powers and was within that area of his discretion where only deliberate abuse would provide a private law remedy. Whilst there are similarities between those cases and the issues here the reality is that context is all, and the context here, is of interpretation of the two EU Directives which neither case deals with.[62]Two other cases were referred to in argument, namely, Barco de Vapor v Thanet District Council [2014] EWHC 490 (Ch) and R v Ministry of Agriculture, Fisheries and Food ex parte Hedley Lomas [1997] QB 139. In my judgment neither takes the issue on the first condition any further.[63]The fundamental question is whether, on the claimant’s case, the EU law infringed was intended to confer rights on individuals. I have answered that in the affirmative under Articles 4, 13 and 18 for the reasons given above. Condition (ii): Was the Breach Sufficiently Serious?

Introduction

[64]In considering this condition it should be recalled that I am being asked to consider the claimant’s case at its highest. That may or may not be the case at trial. To that extent I have to record that I regard the exercise here as artificial. I have real doubts as to its utility, divorced, as it is, from full evidence on the facts. Inevitably, a finding under this limb is fact sensitive.[65]I am reinforced in that view by the comments of Lord Clyde in R v Secretary of State for Transport ex p Factortame Ltd ( No 5) [2000] 1 AC pp 554 to 556 where he identified some of the factors that could be taken into consideration. He favoured a broad approach and said, “moreover the application of the test laid down by the court comes eventually to be a matter of fact and circumstance.” That encapsulates the difficulty in the current exercise. Indeed, I observe that the claimant submitted, in reply, that for the breach to be sufficiently serious is always going to be dependant on case-sensitive factors. In my judgment those case-sensitive factors can only be adjudicated upon in the light of all of the evidence.[66]I note also that in the case of Delaney v Secretary of State for Transport [2014] EWHC 1785 Jay J set out the principles to follow and then, in conventional fashion, turned to the evidence. That seems to me to be the right approach.[67]Nevertheless, I have been asked to consider matters on a certain basis. I proceed on the exercise as far as I think that I can go with my reservations clearly expressed.

Submissions

[68]The claimant contends that the breaches are four-fold.[69]First, there is a breach by the removal of the claimant to Mongolia contrary to the right under Article 21 of the Qualification Directive not to be refouled.[70]Second, the certification by the defendant that the claim was clearly unfounded breached Article 31 of the Procedures Directive. In the circumstances, it is contended that it was wrong to apply the safe country of origin approach.[71]Third, it is contended that there was a breach of Article 4(3)(a) of the Qualification Directive.[72]Fourth, the refusal of the claimant’s claim for asylum and his removal breached his rights to asylum and subsidiary protection under Articles 13 and 18. That is evidently the case because of what has happened subsequently with the First-Tier Tribunal on 3 November 2011.[73]In assessing whether the breach is sufficiently serious it is necessary to apply the multi-factorial test. Here the claimant relies on six factors as follows: i) This is not a case where the defendant has any discretion. That is clear from the wording of the Directives. There needs to be an evaluative judgment. ii) The importance of the principles which have breached. The principle of non refoulement could not be of greater importance. iii) The clarity and precision of the rules that have been breached. The provisions are entirely unambiguous. If the claimant met the criteria he was entitled to be recognised as a refugee. He cannot be refouled. The situation is analogous to that in Ogieriakhi v Minister for

Justice and Equality & Ors (No. 2) [2014] IEHC 582 at [48]:

“So far as the criteria of the clarity and precision of the rule breached and the measure of discretion left by that rule to the national or Community authorities, it has to be said that the terms of both Article 16(1) and Article 16(2) of the 2004 Directive are absolutely unambiguous and are both couched in unambiguous language (“..shall have the right of permanent residence…”… “shall also apply to family members who are not nationals of a Member State”). Assuming the conditions of Article 16(2) apply, Member States enjoy no discretion in the manner.” iv) The consequences of the breach to the individual. The claimant relies on the case of Delaney v Secretary of State for Transport (supra) where Jay J said at [84]: “As is well-known, Lord Clyde set out in his opinion a non-exhaustive series of factors which fall to be weighed in the balance. I will be considering these subsequently. What it is important to recognise at this stage is that (i) the test is objective (544D) (if a government acts in bad faith that is an additional factor which falls objectively to be considered), (ii) the weight to be given to these various factors will vary from case to case, and no single factor is necessarily decisive, and (iii) the seriousness of the breach will always be an important factor. Although not expressly mentioned by Lord Clyde, I would add that in a minimal/no discretion type of case it will be easier for the claimant to prove the requisite degree of seriousness.”
Here, on the basis of the particulars of claim, the claimant was removed to Mongolia on 3 February 2008 and arrested on his arrival there. He was in pre-trial detention until 22 April 2009 and sentenced to fifteen years imprisonment. Post-conviction he was detained in conditions that were inhuman and degrading. The claimant suffered ill health and tuberculosis. That continued until his escape to the UK on 7 January 2010. Those amount to clear breaches of Article 3 of the ECHR. v) It was plainly inappropriate for the defendant to certify the case as clearly unfounded and to deny the claimant an in-country right of appeal. The officer approving the removal recorded:
“The claimant also claims to be at risk on return because he is suspected of stealing statues from his monastery, that is prosecution not persecution. On return the subject would receive a fair trial, as in the refusal letter. Problem Certification Guide has been consulted regarding prison conditions – they do not normally engage Article 3.”
The Problem Certification Guide says, in relation to prison conditions in Mongolia:
“Prison conditions are unlikely to meet the Article 3 threshold. However, the individual factors of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3. Relevant factors include the likely length of detention, the likely type of detention facility and the claimant’s age and state of health. Only where it is unarguable that a person will face treatment which reaches the Article 3 threshold should a claim of this kind be certified.”
The claimant submits that a higher threshold has been set. All he has to do is show an arguable case that his human rights were infringed. He had adduced evidence that he had suffered human rights abuses. He had produced the court summons as evidence of him being actively pursued by the authorities which stated that if he deliberately avoided attending court he would be liable to a fine or punishment with seven to fourteen days imprisonment. As is evident from the defendant’s letter from 30 January 2008 the defendant was operating on the basis that the claimant’s claim was true. There was clear evidence before him that the claimant had an arguable case. In particular, reference was made to the Operational Guidance Note (OGN) with which the amended defence says the defendant probably engaged. Within the OGN the relevant paragraphs on prison conditions say:
“3.13.2. The guidance in this section is concerned solely with whether prison conditions are such that they breach Article 3 of ECHR and warrant a grant of Humanitarian Protection. If imprisonment would be for a Refugee Convention reason, or in cases where for a Convention reason a prison sentence is extended above the norm, the claim should be considered as a whole but it is not necessary for prison conditions to breach Article 3 in order to justify a grant of asylum. … 3.13.5. Amnesty International reported that during 2005 prisoners held in police stations, pre-trial detention facilities and on death row were at risk of torture or ill-treatment in harsh living conditions. … 3.13.6. Regarding ordinary prison conditions, Amnesty International has stated that in 2005 detention conditions remained harsh with prisoners typically suffering from overcrowding, a high incidence of tuberculosis, inadequate nutrition and extremes of hot and cold temperatures in cells. … 3.13.9. There is a risk of ill-treatment or torture of those in pre-trial detention in Mongolia and conditions for prisoners facing special 30 year isolation sentences or those on death row are very severe and may in some cases be inhuman or degrading. Where individual claimants are able to demonstrate a real risk of ill-treatment or torture in pre-trial detention or of being sentenced to 30 years isolation or death on return to Mongolia and exclusion is not justified, a grant of Humanitarian Protection will be appropriate. 3.13.10. In general, conditions for prisoners in ordinary prisons while poor are unlikely to reach the Article 3 threshold. Therefore, even where claimants can demonstrate a real risk of imprisonment on return to Mongolia a grant of Humanitarian Protection will not generally be appropriate. However, the individual factors of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3, relevant factors being the likely length of detention, the likely type of detention facility, and the individual’s age and state of health. Where in an individual case treatment does reach the Article 3 threshold a grant of Humanitarian Protection will be appropriate. Only where it cannot be argued that an individual will face treatment which reaches the Article 3 threshold should a claim of this kind be certified.”
The claimant submits that the defendant failed to meet the test set out in the OGN and, because he is relying on a Convention ground, the defendant had to take a cautious approach to certification. vi) The defendant refused the claimant permission to adduce further evidence. In the fax of 29 January 2008 the claimant wanted to submit further medical evidence. He had an appointment with the Medical Foundation so that it was appropriate to stay the removal directions pending that examination. It was the claimant’s case that the further medical evidence and documentary evidence would be sufficient to amount to a renewed application for asylum which would be capable of succeeding before an immigration judge, if not the defendant. The defendant accepted, in her response of 30 January 2008, that there was further evidence on the criminal charges but not sufficient to alter the decision. The claimant submits that is not good enough. There was evidence about pre-trial detention in the OGN and in the United States Department of State Country Report on Human Rights Practices 2006 – Mongolia. Within that it was said:
“Conditions in pre-trial detention and prison facilities were poor. Insufficient food, heat and medical care threaten the health and life of inmates. The NHRC annual report declared that no detention facility met the country’s own standards and found little or no progress since a 2004 inspection revealed severe deficiencies.”
In terms of arrest and detention the report said:
“Arrest without warrant was fairly common. According to the NHRC 919 out of 978 persons detained in the main pre-trial detention centre near Ulaanbataar were arrested under ‘pressing circumstances’ exception to the requirement that a warrant should be obtained from a judge prior to the arrest.”
The claimant’s evidence that he was being actively pursued was relevant as to whether he would be held in a pre-trial facility. The defendant had a duty to investigate what the risks were. If the defendant did take the OGN into account that demonstrated that pre-trial detention facilities met the Article 3 threshold. If the claimant was to be imprisoned for a Convention reason that was not dealt with in the decision letter.[74]The defendant’s submission that the claimant did not put pre-trial detention at the forefront of his case is not relevant given that there is a duty on the defendant to inform herself. Together, it means that the claimant had an arguable case that his claim should not have been certified.[75]The defendant submits that the position is as set out in paragraphs 118 and 119 in AB v Home Office: “118. Even if I were to be wrong about that, it also seems to me that Ms C's complaint, when properly understood, could not involve a sufficiently serious breach by the United Kingdom of its obligations under Community law as to give Ms C individually any claim for damages for breach of her Community rights. As observed by the Court of Justice in Brasserie du Pêcheur, ‘… the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion. The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law …’ 119. To the extent (if any) that the Claimants are able to establish that the Home Office acted in deliberate bad faith, national law provides a remedy in the tort of misfeasance in public office (which I discuss below). To the extent that the Claimants' case falls short of that, their complaint is in substance simply about delay and maladministration. That would not involve any sufficient manifest and grave disregard by the Home Office of its Community law obligations as to give rise to a claim for damages.” ‘… the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion. The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law …’[76]When the seriousness of the breaches are examined one is considering the alleged failure by an official which does not reach the severity envisaged by the second limb of Francovich. What is envisaged is a more flagrant breach such as a failure to implement a Directive properly or maintain some policy which contravenes the Directive. That is very different from an individual act of maladministration which, if the decision was wrong, there was here.[77]Although the claimant contends that there has been a flagrant breach resulting from egregious failure to comply with the obligations imposed on the defendant by the Directives there is nothing suggested in the claimant’s case of misfeasance in public office or bad faith. What was suggested at the time was the omission of a material consideration. The claimant’s concern then was about a lengthy prison sentence rather than pre-trial detention. The documents which he submitted suggest a short period of imprisonment for non-compliance but say nothing about pre-trial detention. If the claimant’s own solicitors did not raise the points by reference to the OGN or other publications about pre- and post-trial detentions the defendant cannot be accused of acting in a flagrant and egregious manner. The decision letter shows the defendant had regard to the principal claim of the claimant, had regard also to internal relocation, and a fair trial by reference to country guidance.[78]The further evidence submitted did not advance matters because the defendant had already accepted the claimant was of interest to the authorities and had been persecuted by monks. The Medical Foundation Report, likewise, would not have added materially to the decision making process. Even if the decision was wrong it was an excusable error and no higher than maladministration.[79]The defendant accepts that the six factors relied upon by the claimant demonstrate that the consequences of the breach were serious. However, that is not determinative as to whether the breach itself is “sufficiently serious” and gives rise to a claim for damages. That is because, here, there was a failure by an individual officer.[80]The defendant does not accept that Article 4 of the Qualification Directive or the Procedures Directive is of sufficient clarity. There is a set administrative procedure which urges the official to take into account all relevant matters. That does not need the same clarity as a Directive where, after the grant of refugee status, rights follow such as a residence card or employment. The defendant relies on paragraph 32 of R (Kuchiev) where Singh J said:
“For those reasons, therefore, I have come to the conclusion that the claimant cannot succeed in getting the claim for damages under EU law off the ground. This is for the reason that there is no breach of the EU right invoked by the claimant. However, even if I were wrong about that, I am not persuaded by the claimant's arguments that there was in the present case a sufficiently serious breach of EU law as required by the principles is Haim to which I have already referred. In my judgment there would be nothing out of the ordinary by holding, as I do, that the grant of refugee status takes prospective effect. As I have already said, that is conducive to the interests of legal certainty. It is also consistent with the general position adopted in our own administrative law, although I accept that this may not be true in all systems of administrative law, in particular in other Members States of the European Union. However, as I have said, there are indications in the EU Directives themselves that the timing of a decision is governed by, for example, the obligation in Article 23 of the Procedure Directive that an examination procedure should be concluded as soon as possible. There is no reason in my view why the court should take the view in the present context that the Secretary of State has committed a sufficiently serious breach in accordance with the principles of Haim to which I have already referred. In the present context, where what in fact has happened is that there was quite properly an appellate process or reconsideration process used by each party at various stages, that process eventually led to a judicial determination which, as it happened, was in favour of the claimant. The Secretary of State then recognised the claimant's refugee status and granted him a residence permit. It does not follow from any of that that there has been a sufficiently serious breach of EU law -- if there has been any breach at all -- by a failure to recognise that status from some earlier date, in particular the date of the Immigration Judge's decision of 15 January 2009.”

Discussion

[81]Whether the four breaches relied upon by claimant are in fact made out is a matter for the substantive trial. For the purposes of this exercise I assume that they are and the question is do they constitute breaches that are “sufficiently serious”?[82]For the purposes of that exercise the claimant relies upon the multi factorial test. I consider first whether the factors relied upon are material. I have little difficulty in accepting the first three of the factors as being material, namely, the absence of discretion, the importance of the principle breached and the clarity and precision of the Directives. They are directly consistent with those identified as possible factors identified by Lord Clyde in Factortame (supra). No single factor is necessarily determinative and one factor might, depending upon what there was on the other side of the balance, be sufficient to justify a conclusion of liability.[83]The fourth factor relied upon, namely, the consequences of the breach to the individual, I accept can be a relevant factor where there is a material breach of a clearly worded provision of EU law and where there is minimal or no discretion on the part of the member state. Whilst the consequences to the claimant were clearly serious to him, as illustrated in the evidence relied upon particular to his case, it has to be remembered that the test is objective, the weight to be given to the relevant factors will vary from case to case and the seriousness of the breach will be an important factor.[84]The fact that the First-Tier Tribunal concluded that the claimant had a subjectively genuine and objectively well-founded fear of persecution in his country at the hearing on 25 October 2011 is not determinative of the situation in 2008. The documentary evidence that was available to the First-Tier Tribunal in 2011 was not available, to a great extent, to the defendant at the time of the 2008 decision. There are clear differences in the material available in 2011, such as different asylum interviews, the availability of expert psychological reports and updated evidence as to the situation in Mongolia based upon the USSD 2010 Human Rights Reports of 8 April 2011.[85]Factors five and six, the inappropriateness of certification that the claim was clearly unfounded and the refusal to permit the claimant to adduce further evidence, were decisions by an individual officer on behalf of the Secretary of State. It may well be that those were wrong decisions to make in the light of the matters which the claimant relied upon and which I have set out above. However, that does not necessarily equate with a finding that the breach would be sufficiently serious as to give rise to a claim for damages. It would be a failure on the part of an individual officer, with dire consequences so far as the claimant was concerned, but taken without bad faith and without misfeasance in public office. On the claimant’s case there would be an omission to have regard to a material consideration which, in the mind of the decision maker, could have been of significant weight. However, the defendant had regard to the principal claims that were made by the claimant, had regard also to the issue of internal relocation and the likelihood of a fair hearing. Although the claimant submits that the defendant had a duty to inform herself, which she did to an extent, the fact that the claimant’s own solicitors (experienced in this field) did not highlight the problems of pre-trial detention and the conditions in prison in Mongolia is indicative of what matters were regarded as material at the time. It has to be observed, too, that at the time there was no emphasis within the claimant’s case on pre trial detention; the concern expressed was about the length of a prison sentence after a trial.[86]The application to put in further evidence can be analysed in a similar way. It may well have been a failing on the part of the relevant official not to allow it to be admitted but, again, it is not necessarily determinative in a claim for damages. A remedy then would have been to have commenced proceedings for judicial review of that decision which the claimant did not do.[87]Where does that leave the claimant? The last three factors relied upon can be clearly material to the exercise but, taking the claimant’s case at its highest, in my judgement, fall short of establishing a ‘sufficiently serious’ breach of EU law. On the claimant’s case there were errors on the part of the individual officer but, in the circumstances, those errors were excusable, and I am not persuaded that they show that the defendant manifestly and grossly disregarded the limits on the defendant’s powers.[88]The claimant submits further that he does not need to succeed on all of the six factors. In many cases one or two factors may be sufficient, particularly when the Secretary of State has no discretion and the consequences are extremely serious. There is considerable force in those submissions which would affect the court’s approach to the first three factors.[89]However, as was said in Haim v Kassenzahnärztliche Vereinigung Nordrhein (Case C – 424/97) [2002] 1 CMLR 11:
“38. As regards, more particularly, the second of those conditions, the Court has held that a breach of Community law is sufficiently serious where a Member State, in the exercise of its legislative powers, has manifestly and gravely disregarded the limits on its powers and that where, at the time when it committed the infringement, the Member State in question had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach. … 41. It is also clear from the case law cited in paragraph 38 that a mere infringement of Community law by a Member State may, but does not necessarily, constitute a sufficiently serious breach. 42. In order to determine whether such an infringement of Community law constitutes a sufficiently serious breach, a national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it. 43. Those factors include, in particular, the clarity and precision of the rule infringed, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by a Community institution may have contributed towards the adoption or maintenance of national measures or practices contrary to Community law.”
[90]Stepping back and considering the breaches objectively what was being considered by the defendant, taking the claimant’s case at its highest, was an infringement where the damage caused was involuntary and, even if the decision was wrong, where the decision was excusable in the circumstances of the case which I have set out above. Whilst the first three factors then are material, and in my judgement, could constitute a breach of sufficient seriousness, in the circumstances here, on the basis upon which I have to consider the case, I am not persuaded that they would result in a valid claim for reparations under EU law. The position is analogous to that in Kuchiev where what is being sought is, in effect, a backdating of damages. Condition (iii): Was There a Direct Causal Link Between the Breaches and the Loss or Damage Sustained?[91]The claimant submits that the causal link is self-evident. If the breaches are proved then the claimant would not have been returned to Mongolia and the damage would not have been sustained.[92]The defendant submitted that even if the defendant’s decision not to accede to the asylum claim was wrong that did not give rise to a breach of Articles 4, 13, 18 or 21 of the Qualification Directive or Article 31 of the Procedures Directive. Those articles were administrative in nature. Obligations arising under them arose only once the defendant had determined the refugee status or subsidiary protection issue. They did not arise when the defendant had reached the opposite conclusion even if that conclusion could be shown to be erroneous. It follows that the alleged loss or damage was not a direct consequence of any breach.[93]It is of note also that the claimant did not seek judicial review of the removal directions when they were issued in 2008.

Discussion

[94]Both parties made very short submissions in relation to the third condition. In the main I prefer the submissions on the part of the defendant. Article 4 of the Qualification Directive is administrative in that it is setting out the criteria that a Member State must apply as part of its assessment of the facts and circumstances of an application for international protection. As set out an individual has the right to expect that his assessment will be carried out in accordance with the Article. Articles 13 and 18 create rights once the assessment has been carried out and the criteria for the grant of refugee status or subsidiary protection have been met. Those rights arise only when a decision has been made that the criteria for asylum or international protection have been met. In this case that did not occur until 2011.[95]Article 21 imposes a duty on the Member State not to refoul people in accordance with the international obligations of the Member State. That goes with Article 31 of the Procedures Directive which provides a designated safe country of origin concept if the applicant has not submitted any serious grounds for considering the country not to be such a country. Here, it is said that in the claimant’s application he had shown serious grounds for the decision maker to conclude that Mongolia was not a safe country. I am not persuaded that is the case. There was evidence in the claimant’s representations that could raise concern. The individual consequences for the claimant proved to be undesirable but the overall tenor of the independent documentation in 2008 was not, in my judgment, sufficient to amount to arguably serious grounds. Even if I am wrong on that, the situation would remain one of error by an individual officer which falls short of a member state manifestly and gravely disregarding the limits on its discretion.[96]Further, the absence of any judicial review proceedings by the claimant in 2008 affects whether there was a direct causal link between the breach and damage sustained.

Conclusion

[97]It follows that, in my judgment, the Qualification Directive and the Procedures Directive relied upon do confer rights on the individual. Whether the breaches alleged in respect of those rights are such as to be “sufficiently serious” so as to give rise to a claim for reparation under EU law I do not find to have been made out on the basis upon which I have been asked to assess matters. If I am wrong in that conclusion, for reasons set out, I am unable to regard the breaches that are shown as being directly causative of the damage sustained.[98]It follows that on the preliminary issue I find against the Claimant.

Cited in 2 later judgments