Judicial review action against the delay in issuing status documents
MD (China) & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 453 (18 April 2011)
This Court of Appeal case was heard on 18th April 2011. There are five claimants in this case, all of whom are successful asylum seekers and who suffered unacceptable delays in the issuing of their status papers to which they were entitled. The claimants commenced judicial review action against the Secretary of State for the Home Department (herein after referred to as the SSHD). They also claim damages and compensation for the delay in issuing the papers arguing that their rights under Article 8 of the European Convention of Human Rights and Article 1 of the First Protocol had been infringed.
The claimants argued that, the consequences of not receiving their papers meant that they were unable to work, claim full benefits, travel overseas, open bank accounts, obtain driving licences as well as delaying their ability to apply for British Citizenship. The delays in issuing the status documents ranged from 5 ½ months to 10 months. The amount claimed was £1,800 for pecuniary loss. The costs of both sides to the proceedings so far were calculated to be in the order of £110,000.
The claimants had received their status documents by the SSHD by the start of the proceedings. The SSHD openly apologised for the maladministration accepting that the delays in each case had been unacceptable and that they would consider the complaints with a view to assessing and paying compensation. The claimants sought to continue with the proceedings and to have the court to consider their particular case rights under Article 8. The Immigration Judge stayed proceedings, rather than dismiss the case, so that the internal complaints procedure is dealt with first.
The UK Border Agency complaints procedure provides for the assessment and payment of actual financial loss akin to those claimed to be suffered by the claimants in this case. It also provides for an apology and explanation for non financial loss. There are compensations provisions in place and an option for the review of an initial decision. It was held by the Court that, the complaints system could provide a more than adequate means to address the issues that rose in the claimants cases and that, where a claimant is not satisfied, the case could be brought to the Parliamentary Ombudsman.
Reference was made to Rule 54.4 of the Civil Procedure Rules which provide that Courts will not normally grant permission to apply for judicial review where there is an adequate alternative remedy which the claimants could use. The claimants representatives argued that they had a good prospect of establishing that their article 8 rights had been breached which the SSHD letters did not acknowledge and that, therefore, the claimants were entitled to a declaration as such by the Court.
However, the Judges felt that it would be ‘wholly disproportionate’ to allow proceedings to continue simply so that the claimants could obtain such a judicial declaration. The continuation of the proceedings was held to be pointless and disproportionately expensive. The SSHD had taken the necessary measures to rectify the issues at hand.
As such, the appeals were dismissed.
April 2011