PI Brief Update

Secretary of State for the Home Department Fails to Strike Out Negligence Claim - Grace Corby, Temple Garden Chambers

15/03/23. In Aruchanga v Secretary of State for the Home Department [2023] EWHC 282 (KB) the Claimant sought damages for breach of a common law duty of care by the Defendant for failing to supply him with confirmation of his refugee status. As a result, he suffered loss of benefits, which caused him personal injury in the form of exacerbating pre-existing post-traumatic stress disorder (“PTSD”). The Claimant also brought other claims for breach of human rights and under the Data Protection Act.

The Defendant unsuccessfully sought to have the Claim struck out.

Background

The Claimant arrived in the United Kington from Rwanda in May 1995. He was granted refugee status in December 1997. In 1999, the Claimant’s house was burgled and (amongst other items) his Home Office documentation which confirmed his refugee status was stolen.

The Claimant asserted that various attempts had been made to confirm his status, between 2000 and July 2001 by writing to the defendant seeking a replacement status document. However, he had not received a response.

The Claimant alleged a duty framed as follows in the Particulars of Claim:

“"It is contended that the defendant owed a common law duty of care to the claimant, …to provide him with a replacement refugee status/leave to remain document, or to otherwise confirm or acknowledge his status (whether to himself, his representatives or to other relevant third parties).."

The Defendant sought to strike out the Claim.

Decision

The matter came before Mrs Justice Lambert.

The Claimant argued that the Judge should be slow to strike out the claim as it was well established that the circumstances in which public authorities may owe a common law duty of care is an evolving area of law

Both counsel accepted that this was a case in which it was being alleged that the Defendant failed to confer a benefit, rather than a case in which, by reason of some positive act by the Defendant, the Claimant suffered harm. As such, both accept that (adopting the analysis in Poole Borough Council v GN and Another [2019] UKSC 25 ) one of the factors to which the Judge should have regard is whether the defendant has, by granting the claimant refugee status, voluntarily assumed responsibility for confirming the claimant's refugee status if an inquiry is made.

The Judge applied the three-stage test in Caparo Industries Ltd v Dickman [1990] 2 AC 605. She said:

21. In this context I take into account that the defendant is the only body able to grant the claimant (or anyone) refugee status. Further, on the basis of the documents which I have seen, it appears that the only record available to, and accessible by, the claimant concerning his refugee status is the statement contained in the letter which he is sent by the defendant: there is no record available to him elsewhere (such as by an endorsement to his passport) and the letter stating that refugee status had been granted recorded that the letter constitutes the claimant's "authority to remain in the United Kingdom." Given these facts, it seems to me to be at least arguable that the defendant, having granted refugee status, assumes responsibility for confirming the same given its importance to the claimant as a means of proving that he had lawful leave to remain in the UK, and the reasonable reliance placed upon the document by the claimant.

22. Approaching the question in a slightly different way and adopting the three-stage approach set out in Caparo (as qualified by Poole and the cases referred to in Poole in the context of tortious claims against public bodies) I find that it is arguable that the claimant may suffer damage which is reasonably foreseeable: it is, arguably, reasonably foreseeable that the claimant's immigration status may be at risk in the absence of confirmation, given the burden upon him to prove that he has lawful leave to remain. He may be subject to deportation or to detention pending deportation. I find it arguable that there was a sufficient relationship of proximity between the defendant and the claimant, given that only the defendant is able to confer refugee status and the document remains, apparently, the only written proof of status.

The more difficult question was the third-stage of whether it was ‘fair, just and reasonable’ to impose a duty of care on the Defendant. The Judge found that such a duty was “arguable, albeit only just, particularly given that it is not argued (so far) by the defendant before me that there is any risk of a welter of claims being brought.”

Therefore, the claim was not struck out.

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