Immigration Status Documents: Delays by UKBA and Alternative Remedies in Article 8 Damages Claims

Immigration Status Documents: Delays by UKBA and Alternative Remedies in Article 8 Damages Claims

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A recurring problem which arises is delay faced by successful immigration and asylum applicants in obtaining immigration status documents in particular those whose appeals have been successful before the Immigration Tribunal. Unless the Secretary of State for the Home Office Department (SSHD) intends to and does apply to appeal any such successful outcomes, one would reasonably expect that UKBA will take active steps within three months to process the requisite status documents, however this is not usually the case. Where such delay occurs, many such successful applicants find themselves unable to move forward in any real practical sense.

The case of MD(China) and others 2011 EWCA Civ 453 arose as a lead case in the Administrative Court as a result of several claims for compensation under the Human Rights Act 1998 for delays in issuing status papers to those entitled to remain in the United Kingdom.

Despite the SSHD openly acknowledging that there were delays which were unacceptable maladministration, the case of MD(China) has shown a great deal of reluctance by the Courts to make formal declarations of violation of Article 8 of the ECHR in maladministration claims and to award damages in particular on the facts of the case. Instead the Court of Appeal sought to point claimants and their representatives to the alternative dispute resolution process as opposed to engaging and pursuing disproportionately costly adversarial proceedings in Court.

The claimants in MD(China) asserted that the delay in issuing them with status papers had the effect that they were unable to work, unable to claim full welfare benefits, unable to travel abroad, and unable to have bank accounts or driving licences, and further that this might delay their ability to apply for British citizenship. Although the Court of Appeal made it clear that it was proper to have commenced proceedings with the intention of obtaining the requisite status papers, it was observed that by the time the claim came to be heard in the Administrative Court on 5th May 2010, the Secretary of State had in each case openly admitted that the delays had been unacceptable, apologised and set in train an internal complaints procedure with a view to assessing and paying compensation.

It was observed that the lower Judge had decided that the proceedings should be stayed and not dismissed so that an application might be made to revive them, if the complaints procedure was unable to resolve some issue which really did proportionately require the court's decision. What however the Claimants mainly sought by way of continuation of the proceedings to the Court of Appeal was a judicial declaration that the delays in providing status papers to the claimants resulted in an unlawful violation of their rights under Article 8 of the Convention - vindication of a person's human rights by a suitable declaration, even if there is no other finding or remedy.

The Court of Appeal agreed with the lower Judge that the continuation of the proceedings was pointless and disproportionate; the claimant's status papers had long been issued; the Secretary of State had accepted that there had been administrative delay and apologised: a properly structured complaints procedure was available and has been set in motion to assess compensation. The Court of Appeal took the view that establishing that the delay resulted, if it did, in a violation of Article 8 rights would not materially enhance the existing law, nor would it enlarge the ambit of compensation, nor assist in the disposal of other cases, and would not provide the claimants with greater vindication or comfort than they already have.

Although it was sought to be argued on behalf of the Claimants in MD(China) that continued reliance on these types of cases on the case of Anufrijeva was out of date, the Court of Appeal placed considerable reliance on Anufrijeva when criticising the considerable costs incurred in continuing with the proceedings after the Secretary of State had conceded the case.

The case of Anufrijeva v Southwark London Borough Council [2004] 2 WLR 603 provided the Court of Appeal with its first opportunity to consider in detail the power of the courts to award damages under the Human Rights Act 1998. The three claimants( all asylum seekers) complained of a failure by the SSHD to comply with a public law duty imposed by statute under which they contended they were entitled to receive benefits or advantages. Each complained that this failure was attributable to maladministration and that the maladministration and its consequences constituted a breach of the claimant's rights under Article 8 of the European Convention on Human Rights such that they were entitled to damages under the Human Rights Act in respect of the breach in question. In Anufrijeva, the claimants were members of a family who alleged that their local authority failed to respect their private and family life, contrary to Article 8. The basis of the claim was that the local authority failed to discharge their duty, under section 21 of the National Assistance Act 1948, to provide them with accommodation that met the special needs of one member of the family, with the result that the quality of family life was drastically impaired. In N, the claimant, an asylum seeker, arrived in the United Kingdom from Libya on 1 February 2000. He was granted refugee status on 3 May 2002. He complained of maladministration in the handling of his asylum application which caused much of this delay, of receiving inadequate financial support during much of this period and of psychiatric injury caused by the stress of his experience. He argued that these matters infringed his Article 8 rights. In M, the claimant’s right to remain as a refugee was recognised in January 2001. He then applied for permission for his family, whom he had left behind, to be admitted to the United Kingdom so that he could be reunited with them. The family were not given permission to enter until the end of November 2002. The claimant contended that much of this delay was attributable to maladministration and that it infringed his right to respect for family life under Article 8.

All three claims failed as the Court of Appeal did not consider that the maladministration complained of in the three claims reached the threshold required for a violation of Article 8.

The Court of Appeal proceeded in Anufrijeva to set out the following pointers:

1. Before inaction can amount to a lack of respect for private and family life, there must be an element of culpability. At the very least there must be knowledge that the claimant's private and family life were at risk,
2. Where there is culpable delay in the administrative processes substantial prejudice must have been caused to the applicant. Isolated acts of even significant carelessness are unlikely to suffice,
3. whereas damages are recoverable as of right in the case of damage caused by a tort, the same is not true in the case of a claim brought under the HRA for breach of the Convention,
4. Where there is an infringement, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance. Declaratory judgments usually resolve disputes as to what is the correct answer in law to a dispute.
5. exemplary damages will not awarded,
6. In considering whether to award compensation and, if so, how much, there is a balance to be drawn between the interests of the victim and those of the public as a whole,
7. Damages are not an automatic entitlement but, a remedy of last resort
8. The court has a wide discretion in respect of the award of damages for breach of human rights,
9. The approach of domestic courts to awarding damages should be no less liberal than those applied at Strasbourg,
10.The fundamental principle underlying the award of compensation is that the Court should achieve what it describes as restitutio in integrum. The applicant should, insofar as this is possible, be placed in the same position as if his Convention rights had not been infringed,
11. Where it is appropriate to award damages, the levels of damages awarded in respect of torts as reflected in the guidelines issued by the Judicial Studies Board, the levels of awards made by the Criminal Injuries Compensation Board and by the Parliamentary Ombudsman and the Local Government Ombudsman may all provide some rough guidance where the consequences of the infringement of human rights are similar to that being considered in the comparator selected. In cases of maladministration where the consequences are not of a type which gives rise to any right to compensation under civil law, the awards of the Ombudsman may be the only comparator,
12. A finding of a breach of a positive obligation under Article 8 to provide support will be rare, and will be likely to occur only where this impacts severely on family life,
13. In view of the numbers involved, some delay in the processing of asylum claims is inevitable ;The factors that weigh against recognising administrative delay as engaging Article 8 militate equally in favour of either no award or modest awards where Article 8 is engaged,
14. The reality is that a claim for damages under the HRA in respect of maladministration, if pursued in court is likely to cost substantially more to try than the amount of any damages that are likely to be awarded. Furthermore, there will often be no certainty that an entitlement to damages will be established at all.

The Court in Anufrijeva then proceeded to give procedural guidance in relation to proceedings which include a claim for damages for maladministration under the Human Rights Act in which the proportionate resolution of claims for damages could be achieved:

i) The courts should look critically at any attempt to recover damages under the HRA for maladministration by any procedure other than judicial review in the Administrative Court.

ii) A claim for damages alone cannot be brought by judicial review but in this case the proceedings should still be brought in the Administrative Court by an ordinary claim.

iii) Before giving permission to apply for judicial review, the Administrative Court judge should require the claimant to explain why it would not be more appropriate to use any available internal complaint procedure in the first instance.

iv) If there is a legitimate claim for other relief, permission should if appropriate be limited to that relief and consideration given to deferring permission for the damages claim, adjourning or staying that claim until use has been made of Alternative Dispute Resolution,

v) future claims that have to be determined by the courts can be determined by the appropriate level of judge in a summary manner by the judge reading the relevant evidence. The citing of more than three authorities should be justified and the hearing should be limited to half a day except in exceptional circumstances.

Alternative Resolution - Recourse to UKBA Complaints Procedure, Member of Parliament and Parliamentary Ombudsman

The Court in MD(China) in reaching the conclusion that the continuation of the proceedings was disproportionately expensive had regard to the guidelines on procedure set out in Anufrijeva. MD(China) thus encourages active consideration of alternative dispute resolution prior to pursuing or continuing with a claim for damages under the Human Rights Act for maladministration.

It appears that the Court of Appeal in MD(China) did not however preclude the possibility that in an individual case depending on factual investigation, delay in issuing status papers is capable of giving rise to a violation of Article 8. The question whether in a particular case rights under Article 8 have been violated is fact specific, and it would be a question for investigation whether in the case of each individual a necessary minimum level of severity of interference with private or family life had occurred. The largely academic question of defining for cases such as this a general test when Article 8 might apply and be violated should be done, if at all, in a case where it would make a real difference to the outcome, as for instance where the maladministration is contested.

Despite the Court in MD(China) noting that although the complaints procedure was internal to the UK Borders Agency and that it was not in its complete written form readily accessible to the public, the Court observed that its existence and availability is sufficiently known for it to handle several thousands of complaints a year. Therefore in regards to pursuing immigration status documents and prior to pursuing a damages claim, following UKBA’s complaints procedure by way of alternative remedy requires serious consideration.

Currently UKBA provides a two page Complaints Registration Form to be completed setting out details of the complaint. Also included is a section for UKBA office use intended to record action taken and any further steps. There are clarifications by UKBA via its website that where they are unable to deal with the complaint immediately, the complainant will be informed who is dealing with the complaint. UKBA also aims to give a full response within 20 working days unless the complaint alleges serious professional misconduct by UKBA staff in which case it may take up to 12 weeks to carry out a detailed, independent investigation. The effectiveness of UKBA’s complaints procedure however is questionable where in real practical terms it is not unknown that sometimes complaints forwarded to UKBA are not acknowledged as received, least to mention that it will not be possible to know who is dealing with the complaint. It is nonetheless suggested that in a relevant case, complaint correspondence continues to be sent to UKBA by recorded post so as to show efforts made to attempt to resolve the issues.

Where the complainant is not satisfied with how the complaint has been handled, UKBA encourages contact with their relevant customer service unit for a review of the matter. It is stated the customer service unit will within 20working days of the date of request for a review inform the complaints of its findings. UKBA further clarifies that where a complainant is not satisfied with the customer service unit's response, the complainant can ask a UK Member of Parliament to raise concerns with the Parliamentary Ombudsman. However before contacting a Member of Parliament, the Parliamentary Ombudsman expects the complainant to have completed UKBA’s complaints process above, unless there are exceptional reasons for not having done so.

Of particular relevance, UKBA clarifies that where a complainant can show that they have suffered financial loss as a direct result of an error UKBA has made, the complainant may be able to claim reimbursement of the costs incurred. UKBA make it clear that they will only consider reimbursing a complainant for these costs if they were reasonable, unavoidable and a direct consequence of UKBA’s actions. Evidence such as original receipts will need to be provided. UKBA also provides that in exceptional circumstances not involving financial loss, they will consider whether a consolatory payment may be appropriate.

The Parliamentary Ombudsman exists to provide a service to the public by undertaking independent investigations into complaints that government departments, a range of other public bodies in the UK, have not acted properly or fairly or have provided a poor service. Some of the sort of problem which can be investigated include delay that could have been avoided; faulty procedures, failing to follow correct procedures; unfairness, bias or prejudice; rudeness and not apologising for mistakes; mistakes in handling claims; not putting things right when something has gone wrong. A complaint must first be put to an MP, with a request to refer it to the Parliamentary Ombudsman. A complaint should be put to the MP within twelve months of when the complainant became aware of the problem. However, the ombudsman has discretion to accept a complaint at a later stage, depending on the circumstances of a case. The scheme is free to complainants. It is important to note that Complainants do not have an automatic right to have their complaint investigated. The Ombudsman must be satisfied that there is an indication of administrative fault or of service failure, before looking into whether injustice or hardship has flowed from it. The Ombudsman then considers whether there is a reasonable prospect of an investigation. The Parliamentary Ombudsman cannot deal with complaints about decisions themselves unless something was wrong in how they were reached.

Where the complaint is one that the Parliamentary Ombudsman can investigate, the organisation complained of is sent a summary of the complaint and asked to comment. A formal investigation is a long and complex process; only a small proportion of complaints received become the subject of investigations. Once the investigation is complete a draft report is sent to the agency involved to check it for accuracy. The draft will also be sent to the complainant or representative to comment on, and to check for factual accuracy. It is open to all parties to accept or reject the report and the conclusions, and to make any further comments. The final report may or may not change, based on what both sides have to say. The final report will be sent to all involved. It can take time to get a decision - several months or even more than a year for a full investigation. The aim of the ombudsman's recommendations is to put the complainant back in the position he would have been in had there been no maladministration. Remedies available can include an explanation; an apology; expenses to be reimbursed; compensatory payments for distress or inconvenience. Generally compensation levels will not be large, they reflect the circumstances of the case and so vary accordingly. Further The Parliamentary Ombudsman's recommendations are not binding on the public body or the complainant. However, most are complied with. There is no appeal against the Parliamentary Ombudsman's decision, though it is possible to apply for a judicial review of the way the ombudsman has dealt with the case.

Therefore it maybe that in the event that the Parliamentary Ombudsman is unable to resolve some issue which really do proportionately require the court's decision and a complainant is not satisfied with the final decision of the ombudsman, consideration can be given to taking the case to Court.

Further details on the scheme can be found at http;//www.ombudsman.org.uk and http://www.adrnow.org.uk

Where proceedings are to be pursued in Court it may be worthwhile providing a statement along with the claim detailing all steps taken to resolve the claim prior to bringing proceedings. References can be made to attempts to engage with UKBA’s complaints procedure, setting out any responses or lack off; whether there is a lack of satisfactory or adequate outcome, showing active involvement by the claimant in pursuing the issues with their Member of Parliament. A representative may assist the claimant present his case to his MP by setting out in by way of an explanatory letter the factual history of the case, the issues in play and attaching relevant correspondence. Finally where relevant, involvement of the Parliamentary Ombudsman and outcomes should be included and clarifications provided where recourse to alternative remedies has proved ineffective or inadequate.

Conclusion

In practical terms for applicants, their main concern after successful immigration or asylm claims and appeals is how soon they can obtain confirmation of their immigration status. Although it was suggested on behalf of the claimants in MD(China) that 4 months was the longest unobjectionable period, after which there would be at the very least a legitimate complaint of maladministration attracting compensation, the Court of Appeal was more concerned with sending the message that claimants and their representatives seek to avail themselves of alternative remedies where alternative dispute resolution could be used thus avoiding litigation which could save time, expense and stress. Thus in light of the Court of Appeal’s stance in MD(China) it may be worthwhile to encourage potential claimants in these types of claims to be seen from the start as having made efforts to follow relevant alternative remedies which may result in a significant part of the issues being resolved outside the litigation process.