Robert Cohen appears in the Court of Appeal in an important new case on public authority duties of care

21 November 2023

Robert Cohen appeared in the Court of Appeal for the Home Office in FXJ v Home Office [2023] EWCA Civ 1357, in which judgment was handed down on Monday. The decision is an important contribution to the law of tort in relation to public authorities and to the understanding of Article 8 ECHR.

FXJ suffers from serious mental illness. A decision was made to deport him to Somalia at the conclusion of a custodial sentence for robbery. He appealed to the First Tier Tribunal unsuccessfully but then appealed to the Upper Tribunal who allowed his appeal. The Home Office delayed in granting FXJ status after the judgment of the Upper Tribunal. Eventually, the Home Office made a late application for permission to appeal to the Court of Appeal. That application was then withdrawn and the Appellant was provided with leave to remain. FXJ alleged that his mental health had declined as a result of the delay. He brought a claim in negligence, for misfeasance and for breach of Article 8 ECHR.

At first instance (where Robert also appeared) HHJ Baucher dismissed each element of the claim. FXJ then obtained permission to appeal. Last year, Mr Justice Choudhury dismissed FXJ’s appeal but FXJ was given permission for a second appeal to the Court of Appeal.

The Court of Appeal considered that this was a case where the allegations against the Home Office were all of ‘pure omissions’. Despite FXJ suggesting that the late application for permission to appeal was an act, the Court of Appeal concluded that focus of the case was really the omission by the Secretary of State to make a prompt decision, and that did not give rise to a duty of care. The Court then considered Article 8 and made important observations on the manner in which the ‘Razgar’ questions should be understood in cases of alleged delay. The Court held that the delay in this case did not violate FXJ’s Article 8 rights.

Robert Cohen has extensive experience in defending public bodies against claims in tort. He is on the Attorney General’s ‘B’ Panel of Counsel and is ranked in Chambers and Partners and The Legal 500.


Authors

Robert Cohen

Call 2009

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Public & Administrative

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