Court rules in FXJ v Secretary of State: No Duty of Care Established for Public Authorities, Article 8 Rights Not Breached.

Citation: [2023] EWCA Civ 1357
Judgment on

Introduction

The case of FXJ v Secretary of State for the Home Department & Anor [2023] EWCA Civ 1357 explores the existence of a duty of care in tort by a public authority and potential breach of Article 8 rights pertaining to respect for private and family life. The decision rendered by the Court of Appeal addresses important legal questions regarding the interplay between the actions of public authorities, individual rights under the Human Rights Act 1998, and common law negligence principles.

Key Facts

The appellant, a Somali national with recognized refugee status and severe mental illness, appealed against the significant delay by the Secretary of State for the Home Department in making a refugee status decision. The delay occurred after the appellant’s successful appeal, specifically relating to the initiation and subsequent withdrawal of a late application to appeal to the Court of Appeal against the Upper Tribunal’s decision. The appellant’s mental health was agreed to have deteriorated as a result of this delay.

The key issue was whether this delay and the related activities by the respondent amounted to a failure to confer a benefit or positive conduct that caused harm. The appellant claimed damages in three areas: negligence for failing to promptly decide his immigration status, misfeasance in public office concerning the pursuit of a futile late appeal, and a breach of Article 8 of the European Convention on Human Rights.

The case primarily revolves around two key legal questions:

Duty of Care in Tort by a Public Authority

The court reaffirmed the established principles from the Supreme Court decisions in Michael v Chief Constable of South Wales and others, emphasizing the critical distinction between causing harm (or making things worse) and failing to confer a benefit. For a public authority to owe a duty of care, an action causing harm must be apparent, or, in certain circumstances, the authority must have assumed responsibility to protect from harm.

It was determined that the appellant’s claim focused exclusively on the respondent’s failure to make prompt decisions on his immigration status – a failure to confer a benefit – rather than any positive conduct causing harm. This exclusion was drawn in the context of established categories of negligence, as confirmed in Poole Borough Council v GN.

Breach of Article 8 Rights

The court applied a structured approach akin to that outlined in R (Razgar) v Secretary of State for the Home Department, considering the interference with the appellant’s right to respect for his private life, caused by the delay, in light of Article 8. The court acknowledged that while article 8 is engaged and the consequences were grave enough to potentially invoke its operation, the interference must be justified as a proportionate means of achieving a legitimate aim.

The court emphasized that legitimate delays in administrative decision-making processes usually do not amount to a breach of Article 8 rights. The case of Anufrijeva v London Borough of Southwark was referenced to highlight the consideration of resources and the severity of consequences caused by administrative delays when determining a breach of Article 8.

Outcomes

The court dismissed the appellant’s claims on all three grounds. On negligence, no common law duty of care was established as the claim was essentially one of failing to confer a benefit, for which public authorities generally owe no duty of care. On the Article 8 claim, while the appellant’s rights were engaged and the interference was grave, it was deemed justified. The misfeasance claim was also dismissed by the trial judge and not appealed further.

Conclusion

The Court of Appeal in FXJ v Secretary of State for the Home Department & Anor [2023] provided clarity on the distinction between causing harm and failing to confer a benefit within the context of public authority decision-making and reinforced the principle that administrative delays, even though regrettable, do not necessarily infringe on the protections offered by Article 8. This outcome underscores the high threshold required to establish a common law duty of care against public authorities and the necessity for actual harm to materialize, as opposed to mere omissions, to uphold a claim in negligence within public law.