Damages claims in immigration law - Part 1: European Union law and its legacy

In three blog posts, of which this is the first, members of the Garden Court Immigration Team, Mark Symes and Eva Doerr, and our Legal Researcher, David Neale, discuss aspects of damages claims.

• (a) If a person’s human rights are impacted by government decision-making, the ensuing decisions can represent a disproportionate interference with someone’s private and family life. Although damages are relatively rare in human rights claims, they are available in principle. 
• (b) The domestic law of tort provides various possibilities: malfeasance in public office (very rarely), the tort of conversion (which involves unjustified retention of a person’s property), and conventional negligence claims against public authorities - the law seems in flux on the third category.
• (c) EU law gives rights which, if breached in some circumstances, may also give rise to a damages claim: this may also be true for Withdrawal Agreement breaches. The clock is ticking to bring any such claims: action must be taken by 31 December 2022.

Given that ticking clock, let's kick off with the EU law situation, focussing on historic breaches of the Treaties and Directives, and modern contraventions of the Withdrawal Agreement.

Damages in EU law before and after Brexit

EU law gives rights which, if breached, may sometimes give rise to a damages claim. The UK government made submissions in Brasserie du Pêcheur (Cases C-46/93 and C-48/93) suggesting that only abuses of power akin to misfeasance should attract EU damages. The European Court of Justice disagreed: any such condition would frustrate EU law “such as in practice to make it impossible or extremely difficult to obtain effective reparation for loss or damage resulting from a breach of Community law where the breach is attributable to the national legislature.”

Damages for EU law breaches are often referred to via one of the seminal cases recognising the principle, Francovich (Cases C-6/90 and C-9/90). The case is so famous that the European Union (Withdrawal) Act 2018 (“EUWA 2018”) refers to damages arising from EU law breaches as those awarded under “the rule in Francovich”.

With the UK’s withdrawal from the EU, the continued availability of Francovich damages has become a pressing question. With respect to both of the EU legal regimes that still confront immigration lawyers: historic claims under old-style EU law stemming from the Treaties and Directives, and new-style Withdrawal Agreement breaches.

Para 4 of Sch 1 to the EUWA 2018 provides that damages for EU law breaches are only available where the conduct complained of took place before the end of the Brexit implementation period (ie 11pm on 31 December 2020).

The Act further legislates that an action for EU damages may only arise where proceedings have begun within two years from IP completion day: schedule 8, paragraph 39(7). Of course, this is subject to the ordinary limitation period of six years for civil damages claims. This means that a person can, until 31 December 2022, claim EU damages for anything that happened within the last six years but before 11pm on 31 December 2020. So what this comes down to is this: the wrong must have occurred before that deadline, and the action complaining of it should be brought by 31 December 2022 (save for failings that amount also to a criminal act, difficult to envisage in immigration law).

But does this really spell the end for EU law damages?

The Withdrawal Agreement

There is of course another source of EU law rights: not under the EU Treaty itself, but under EU's law parting shot to our domestic legal regime. Article 4 of the Withdrawal Agreement confirms that its provisions have the same legal effect in the UK as they do in any of the EU Member States and that they are to be interpreted and applied in accordance with the general principles of Union law: the availability of Francovich damages flows from those principles. The Government’s Explanatory Note accords with this analysis, identifying them as one such remedy.

So far, so good. But domestic legislation then intervenes. Para 4 of Sch 1 to the EUWA Act 2018 provides that:

“[t]here is no right in domestic law on or after IP completion day to damages in accordance with the rule in Francovich”.

This looks distinctly unpromising. However, further exploration of the rather dense text of EUWA 2018 provides an answer. Section 7A(2) provides that in general rights, powers, liabilities, restrictions, remedies and procedures arising from the Withdrawal Agreement are to be recognised and available in domestic law, and enforced accordingly. And s7A(3) then emphasises that the principle of general recognition and availability is something to which every other enactment, including EUWA 2018 itself, is to be subject. So s7A(3) operates as a trump card which overrides contrary statutory provisions.

There is already some case law confirming this. EUWA 2018 at s6 indicates that Court of Justice decisions are no longer binding on domestic courts. However HMRC v Perfect [2022] EWCA Civ 330 holds that CJEU decisions are in fact binding when addressing Withdrawal Agreement issues, relying on s7A of EUWA 2018.  Allister v Secretary of State for Northern Ireland [2022] NICA 15 is to a similar effect. Therein former UTIAC President McCloskey LJ (concurring) says in terms that it would thus appear that Francovich damages remain available within the purview of the Withdrawal Agreement.

Stepping back from all this, we can see that Sch 1 para 4 of EUWA 2018 is simply an enactment within that statute; and as such is to be interpreted subject to the overriding proviso in s7A(3). In plainer English, the guarantees accorded by Art 4 of the Withdrawal Agreement, including Francovich damages, are ruled firmly in play by s7A(3).

When are Francovich damages available?

Francovich damages may be available where EU law or Withdrawal Agreement rights are (or were) infringed by government decision-making. There are essentially 3 requirements:

First, the rule of law breached must have been intended to confer rights on individuals. Secondly, the breach must have been sufficiently serious that it can be said that the [UK] has manifestly and gravely disregarded the limits on its discretion. The greater the discretion left to the national authorities, the more difficult it will be to show a sufficiently manifest and grave breach. Thirdly, there must be a direct causal link between the breach and the damage sustained.

These principles can be seen in play in the case law. Recently our Garden Court immigration team colleagues Sonali Naik QC and Greg Ó Ceallaigh appeared in QH (Afghanistan) [2022] EWCA Civ 421. The case is a reminder that whilst we often think of EU law as primarily about free movement, from October 2006 until Brexit permitted the UK authorities to free themselves from its constraints, it also controlled the international protection regime.

The Court of Appeal holds that there is no requirement for intentional or negligent misconduct by the authorities, and highlights authority showing that relevant factors in determining if Francovich damages are in play include the possibility that primary legislation inhibits access to remedies, breaches of fundamental Treaty provisions, and the potential of the breach to cause damage. Not all cases will involve questions of national discretion. Whilst it was necessary to allow a significant margin for such discretion where there was scope for legislative choice, sometimes the EU legal regime might not leave administrative decision makers with much by way of discretion at all. We might note that this contrasts the case-specific scenario in QH with the scenario in Negassi [2013] EWCA Civ 151 where the Court of Appeal found that asylum seekers were not owed damages for the UK’s sustained failure to recognise the right to work for asylum seekers pursuing fresh claims. In the latter case, the Court found that the correct legal position had been sufficiently vague (before the Supreme Court explained things) that the SSHD could not be criticised for taking the approach she had done.

In QH the relevant EU law right flowed from Article 27 of the Dublin 3 Regulation, which demands that an effective remedy be given to individuals facing removal to EU Member States. At the relevant time, the UK was part of the Dublin 3 regime. The child asylum seeker QH had been removed without adequate notice; the removal separated him from his only known family. The Court holds that this was not a situation where the UK had any meaningful discretion, and it was obvious that the speedy removal of a vulnerable child had undermined his right to an effective remedy. 

Francovich damages in practice

Successful EU damages claims rarely make it to a reported decision and those that do tend to involve detention claims. Perhaps the area avoided litigation because EU free movement rights would often allow people to easily return to the UK rather than pursue expensive and obscure legal actions. An interesting exception, though, is Santos [2016] EWHC 609 (Admin), where the spouse of an EEA national sought for several years to obtain a residence card following his separation from his wife. The SSHD refused to issue such a card and repeatedly failed to acknowledge an outstanding application, ultimately detaining Mr Santos for removal. In his subsequent judicial review application, he successfully argued that the SSHD had acted unreasonably by failing to determine the original application in a timely fashion.

The Judge upheld his claim and found that it was appropriate to award damages for EU law breaches (independently of false imprisonment damages). She found that the Francovich test was satisfied, because the EU free movement regime was designed to confer rights on individuals, and the failures, in this case, were serious enough to attract State liability. She awarded damages for loss of earnings on an exemplary basis.

The Reception Directive previously in force in the UK (and now at least partly comprising retained EU law via statutory/rule-based provisions) required adequate reception conditions to be available to asylum seekers. In contrast, in the Irish case of X [2019] IEHC 133, a failure to accurately implement that provision in national legislation left an asylum seeker without support for around a month. The consequential loss she suffered (having regard to the psychological stress as well as actual financial loss) was compensated by a Francovich damages award of 1,500 €.

There are a number of further EU law cases in Ireland and Scotland in which Courts have awarded damages.

In Ogieriakhi [2014] IEHC 582 the spouse of an EEA national exercising Treaty Rights in Ireland lost his job after the relevant government authorities informed his employer (the state postal service) that he was not entitled to work. This was due to their erroneous interpretation of the provisions of the Citizens Directive at the time.

However, the court found that notwithstanding the odd wrinkle in the case such as the relevance of pre-Accession residence, Ireland had acted in a way which manifestly and gravely disregarded the limits on its discretion. It was self-evident that the Citizens Directive created directly effective rights which individuals could rely on. Mr Ogieriahki had obviously lost his job and the ability to work solely down to the Irish authorities’ mistake. The Court awarded him damages for an accumulated loss of  €107,905 allowing for his loss of earnings and foreseeable earnings over six years (a sum that allowed for some deduction for having failed to mitigate his loss by having turned down a reinstatement offer for a time).

In Raducan v- MJELR & Ors [2011] IEHC 224 a non-EEA spouse sought to enter Ireland at Dublin Airport accompanied by their EEA national spouse. Their accounts as to what followed differed from those of the border guards, who claimed, contrary to the couple’s evidence, that they had not been presented with any evidence of their being married such as to enjoy an EU right of entry.

The Irish High Court resolved the conflict of evidence via a principle derived from the highest of literary authority: “we may thus heed the advice of fiction’s greatest analyst of factual conflict, namely, that “when you have eliminated the impossible, whatever remains, however improbable, must be the truth”: see Conan Doyle, The Sign of Four (1890) (Penguin Books, 1982) (at 51).” It seemed inconceivable that the applicants would not have presented evidence of their entitlement to enter the country without a visa.

The court found that the Irish state failed to obey EU law by preventing the non-EEA national’s entry, and additionally failed to have an adequate system in place to facilitate the grant of entry at a border for the family members of EU nationals who lacked a visa.

In AA Nigeria [2015] CSOH 158 a British citizen who had returned to the UK with their non-EEA spouse after a period where the former had worked abroad sought to rely on the Surinder Singh right to a residence card here. The non-EEA spouse was issued with a Certificate of Application (“CoA”) confirming receipt of the application, but the refusal came 7 months later and appeal proceedings went on for a long time afterwards, at one point the FTT allowing the appeal to the extent that the SSHD was told to make a lawful decision.

The SSHD argued that there was no requirement to re-issue a residence card and that there was no obligation to issue one to a person who under domestic law was an illegal entrant.

The Court held that a decision concerning a CoA is one that “’concerns’ a person’s entitlement to be issued with or have renewed a residence card” and that it was clear that a CoA should be issued for the whole period for which a case was under consideration; six-month grants might be administratively convenient but under such a regime, cards would have to be re-issued. There was no limitation on the issue of such certificates based on domestic law immigration status. Accordingly, the SSHD had both failed to respect a rule that was intended to confer rights on individuals, and also manifestly and gravely limited her discretionary powers.

That left the question of causation. On the evidence, the Court found that it was not clear that the non-EEA spouse could have obtained alternative employment: he had only been turned down by one employer and he faced an impediment to finding work due to a conviction. Nevertheless, in principle damages might have been awarded. These might arguably have included damages for disappointment, frustration and anxiety, in line with the approach in human rights cases.

The Judge opined that in principle the claim could have been brought both under the Citizens Directive (as an EU law damages claim) and under domestic law (as a breach of statutory duty under the EEA). The subsequent interlocutory judgment in [2016] CSOH 143 suggests §16-17 that damages for distress may be recoverable in an immigration-related Francovich case.

Conclusions

The above shows that both historic breaches of EU law rights, and current violations of the Withdrawal Agreement, might give rise to a damages claim. The approach of Brexit led to a hardening of immigration enforcement vis-á-vis EU nationals and their family members. One can readily imagine individuals who were uncertain of their rights being removed (or encouraged to depart) on a peremptory basis, or if they remained in the UK, wrongly consigned to the “hostile environment” with its attendant disadvantages such as the inability to work, study and access mainstream benefits. Immigration lawyers would do well to remember Francovich damages as one potential remedy when historic injustices of this nature come to light.

And in the modern era, the Withdrawal Agreement confers various important procedural rights and requires proportionate decision-making that does not put unnecessary hurdles in the way of those seeking to regularise their status. A number of impediments to so doing have already been spotted in decision-making under the EU settled status scheme – some critics might suggest that the impenetrable provisions of Appendix EU are an impediment in their own right. The time will come when the Upper Tribunal has to assess when Francovich damages are available in these cases.

Garden Court invites solicitors to get in touch with cases that might raise issues concerning this interesting area.

Mark Symes and Eva Doerr, members of our Immigration Team, and David Neale, our legal researcher.