APPEAL BY THE ADVOCATE GENERAL FOR SCOTLAND AGAINST MICHELLE ADEWEMIMO ADIUKWU [2020] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> APPEAL BY THE ADVOCATE GENERAL FOR SCOTLAND AGAINST MICHELLE ADEWEMIMO ADIUKWU [2020] ScotCS CSIH_47 (14 August 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_47.html Cite as: [2021] Imm AR 413, [2020] CSIH 47, 2021 SC 38, 2020 SLT 861, 2020 GWD 26-348, [2020] ScotCS CSIH_47

THE RIGHT HONOURABLE LORD KEEN OF ELIE, Her Majesty's Advocate General for

Scotland, as representing the Secretary of State for the Home Department

[1] I am grateful to Lord Glennie for setting out the detail of the factual background of

this case, and the pleadings, in his own opinion with which I am in agreement.

[2] This is a case which went to the sheriff for debate on the reclaimer’s preliminary plea

that the respondent’s pleadings were irrelevant et separatim lacking in specification. The

focus of such a debate is, or should be, the averments made by the respondent, with such

relevant averments by the reclaimer which may bear on the issue which is essentially

whether the respondent has averred a relevant case from which it may be established that

the Home Secretary was under a duty of care to her. The foundation of that alleged duty of

care should be clearly specified in the pleadings. It is, I think worth taking a moment to

examine what the respondent’s written case is before turning to see how differently the case

was eventually argued before the sheriff; and how differently again it was argued in this

(a) The Home Secretary owed the respondent a duty to take care in the

administrative implementation of the immigration decisions in her favour; more

specifically she had a duty to ensure that the respondent received a status letter

which she could use to obtain paid employment and/or access state benefits for

(b) The Home Secretary was under a duty to obtemper both orders of the

immigration tribunals and, ultimately, to issue the respondent with a status letter in

baldly stated. The central averment is simply that the respondent knew or ought to

have known that the respondent was entitled to be granted leave to remain in the

United Kingdom as early as 15th December 2014. It is then averred that “as a

consequence of the maladministration committed by the Home Secretary, or those

acting on her behalf, the [respondent] suffered reasonably foreseeable, and

[3] It is hardly necessary to point out that these averments follow a false premise, as

specified at paragraphs (a) and (b): the decisions of the respective tribunals did not involve

making any order that the Home Secretary should issue a status letter. They determined

that her removal would be a disproportionate interference with her article 8 rights. How to

address that remained a matter for the Home Secretary. It may well be that in reality there

was little doubt that these decisions would be followed by the issuing of a status letter but

the matter was nevertheless still one for the exercise by the Home Secretary of her section 4

discretion. None of this is the matter of any averment. I agree with Lord Glennie’s

observation that as far as predicated on assertions that the tribunals ordered the Home

[4] It is striking that the pleadings contain no averments of any policy allegedly

operated by the Home Secretary, the details of any policy, when and how it was put in

place, the extent to which it was implemented in practice, how it might affect the respondent

or any other matters of that kind. Notwithstanding this, the sheriff felt able to proceed on

the basis that there was a policy that would have operated favourably towards the

respondent on the basis of oral submissions made at the bar, and to base his decision to a

degree on this. In my view that is an unsatisfactory way of proceeding. If a case is said to

rest on the existence and operation of a policy those matters should be clearly made the

subject of averment so that an informed and reliable understanding of the policy and its

operation may be achieved. Proceeding on the basis of submissions made “on the hoof” is

not appropriate. It is now said, orally, that there was “a systemic failure to ensure that

policies are applied”. This, rather than foreseeability, is now said to be the source from

which a duty on the respondent may be deduced. How on earth this court could consider

there to be a valid issue for inquiry on that matter in the absence of averments I cannot see.

[5] In the second place there are equally no averments of any kind such as would bring

the case within the classification of the creation of a danger or the assumption of

responsibility which may be relevant to the establishment of a duty of care for failing to

confer a benefit, which at heart is what the respondent’s case is. When the case has

proceeded this far, I share your Lordships’ reluctance to decide the issue on a mere pleading

point, but we should remind ourselves of the observations made by Lord Reed in N and

“Since such an inference depends on the facts of the individual case, there may well

be cases in which the existence or absence of an assumption of responsibility cannot

be determined on a strikeout application. Nevertheless, the particulars of claim must

provide some basis for the leading of evidence at trial from which an assumption of

[6] In short, whilst I do not suggest that the case should be determined purely on the

basis of an absence of pleading, I do consider that if the absence of pleadings causes a

difficulty in reaching a conclusion on any matter the benefit should be given to the appellant

in the absence of any, let alone clear and detailed, pleadings. I also agree with the

observations made by Lord Glennie about these matters at paragraph 11 of his opinion.

[7] The shifting sands which have bedevilled this area of the law over many years have

been converted into firm terrain during a series of important decisions of the UKSC, notably

Michael v Chief Constable of South Wales Police 2015 AC 1732; Robinson v Chief Constable of West

Yorkshire Police [2018] AC 736 and N and another v Poole Borough Council. The first significant

area of clarification relates to the effect of Caparo Industries plc v Dickman [1990] 2 AC 605.

These recent decisions have made it clear that Caparo should not be taken as establishing a

universal tripartite test for the existence of a duty of care. On the contrary, in the ordinary

case the court should continue to apply established principles of law. The Caparo test was

appropriate when considering novel situations, where an incremental approach by analogy

with established categories of liability was to be adopted. In such situations the question of

whether it was fair, just and reasonable to impose a duty would be part of the assessment

[8] The sheriff did not rely on Caparo, having reached the conclusion that the matter was

covered by the decision in R (Kanidagli) v Secretary of State for the Home Department

[2004] EWHC 1585 (Admin), where the judge concluded that it was fair, just and reasonable that an

administrative error of this kind, involving no judgment but simple administration and with

a predictable financial effect, for which there was no other remedy, should be regarded as

arising out of a sufficiently proximate relationship to found a claim for damages. Somewhat

mystifyingly, the sheriff concluded that nevertheless, had he been required to go through a

Caparo exercise himself he would have adopted the same general approach, notwithstanding

that he tells us he “was not addressed in any detail in relation to the factors to be taken into

account in applying the fair, just and reasonable test set out in Caparo”. The sole basis for the

sheriff’s decision was that (a) Kanidagli applied; (b) the ratio of that case, namely that there

was a sound basis for distinguishing W v Home Office [1997] Imm AR 302, was correct; and

[9] I disagree. The decision in Mohammed was that the Home Secretary did not owe a

common law duty of care to applicants for leave to remain in the United Kingdom to avoid

maladministration in the exercise of her power to grant leave to remain under section 4(1) of

the Immigration Act 1971. The argument which had been advanced was put solely on the

basis that the court should follow Kanidagli. At paragraph 15 the Appeal Court made it clear

that it did not think that the reasons given in Kanidagli for distinguishing W – the basis upon

which the case had effectively succeeded – were valid. In W, the claimant had been held in

immigration detention because of a crass administrative mistake, which could not be

dignified as an error of judgment, yet the court held that no claim lay in negligence. I cannot

read Mohammed as doing other than disapprove of the rationale of Kanidagli. In addition the

facts of this case are much closer to those of Mohammed itself. I do not therefore think the

sheriff’s reasoning can stand. However, in any event, I am not convinced that any of the

three cases, W, Kanidagli, or Mohammed, assist in determining the correct approach to this

case, given the extent to which understanding of the law in this area has been clarified and

[10] I turn then to examine the matter from the basis of the “established principles of law”

referred to in N, further guidance about which was given succinctly by Lord Reed in

“It follows (1) that public authorities may owe a duty of care in circumstances where

the principles applicable to private individuals would impose such a duty, unless

such a duty would be inconsistent with, and is therefore excluded by, the legislation

from which their powers or duties are derived; (2) that public authorities do not owe

a duty of care at common law merely because they have statutory powers or duties,

even if, by exercising their statutory functions, they could prevent a person from

suffering harm; and (3) that public authorities can come under a common law duty

to protect from harm in circumstances where the principles applicable to private

individuals or bodies would impose such a duty, as for example where the authority

has created the source of danger or has assumed a responsibility to protect the

claimant from harm, unless the imposition of such a duty would be inconsistent with

It was accepted in submissions in this appeal that no duty of care arose directly from the

relevant statute. Rather than focus on the way the case had originally been argued under

reliance on Kanidagli, senior counsel accepted that the respondent’s case had to come within

paragraphs (1) or (3) of paragraph 65 of N. The respondent’s argument was that the failure

complained of did not arise in the course of the exercise of a statutory function or power by

the Secretary of State; rather the failure arose in the course of the simple administration of

something that required to be done by the Secretary of State. I confess that I have difficulty

in understanding the distinction in the circumstances of this case. It seems to me that there

is an essential circularity in the approach adopted for the respondent; it is accepted that

there is generally no liability for failing to confer a benefit, yet it is argued that that very

failure is alone sufficient to create liability by reclassifying it as the creation of a danger. As

with the arguments on assumption of responsibility it essentially rests on the proposition

that a duty of care exists merely because there existed a statutory power the exercise of

[11] The respondent’s case is in my view not one of causing harm to the claimant but is

one of failing to confer a benefit on the respondent. It is thus a case falling within the

established principle that a duty of care does not arise save in very limited exceptions, viz:

where the defender has created the source of the danger or where there has been a voluntary

assumption of responsibility. I have little difficulty in rejecting the suggestion that the

Home Secretary created a source of danger for the respondent or that the situation may be

equiparated with such a circumstance. The respondent was in no worse position following

the decision of the First-tier Tribunal as a result of the Home Secretary’s actions; the point of

her claim is that the Home Secretary did not take action to put her in a better position. I find

it very difficult to see how this can truly be equiparated with creating a source of danger for

[12] The same applies to the question of assumption of responsibility. The basis upon

which the Home Secretary may be said to have assumed responsibility towards the

respondent is very difficult to identify. It was not identified in the pleadings and I remain

[13] The principles underlying the circumstances in which a duty of care may be said to

arise from an assumption of responsibility were examined by Lord Reed in N in

paras 66 - 73. The development was traced from early cases through Hedley Byrne & Co Ltd v

Heller & Partners Ltd [1964] AC 465 to Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 and

Spring v Guardian Assurance plc [1995] 2 AC 296. Lord Reed quoted the words of Lord Goff

“Accordingly where the plaintiff entrusts the defendant with the conduct of his

affairs, in general or in particular, the defendant may be held to have assumed

responsibility to the plaintiff, and the plaintiff to have relied on the defendant to

[14] The argument that a public authority cannot assume responsibility merely by

operating a statutory scheme, on the basis that the responsibility must be “voluntarily

accepted or undertaken”, was also examined specifically under reference to Rowley v

Secretary of State for Work and Pensions [2007] 1 WLR 2861 and X v Hounslow London Borough

“The correctness of these decisions is not in question, but the dicta should not be

understood as meaning that an assumption of responsibility can never arise out of

“the operation of a statutory scheme does not automatically generate an assumption

of responsibility, but it may have that effect if the defendant’s conduct pursuant to

the scheme meets the criteria set out in such cases as Hedley Byrne and Spring v

[15] These criteria essentially relate to circumstances of the kind described in Hedley Byrne

“….. if someone possessed of a special skill undertakes, quite irrespective of contract,

to apply that skill for the assistance of another person who relies upon such skill, a

duty of care will arise. … Furthermore, if in a sphere in which a person is so placed

that others could reasonably rely upon his judgment or his skill or upon his ability to

make careful inquiry, a person takes it upon himself to give information or advice to,

or allows his information or advice to be passed on to, another person who, as he

knows or should know, will place reliance upon it, then a duty of care will arise”.

[16] The situation is sometimes described (see the speech of Lord Devlin in Hedley Byrne)

as being where the relationship between the parties is equivalent to a contractual one. I do

not see that categorisation as valid in the present case. In Gorringe v Calderdale Metropolitan

Borough Council [2004] 1 WLR 1057 Lord Hoffman (para 38) referred to circumstances where

public authorities have actually done acts or entered into relationships or undertaken

responsibilities which give rise to a common law duty of care. If we ask what has the Home

Secretary done here or what relationship has she established to bring her within the scope of

a duty of care? The answer is nothing: it is in reality purely based on a statutory power

under section 4. In short, in my view nothing is relied on save the nature of the statutory

functions and these do not suggest that there was any assumption of responsibility to the

[17] Accordingly, it is my view that the appeal must succeed.

THE RIGHT HONOURABLE LORD KEEN OF ELIE, Her Majesty's Advocate General for

Scotland, as representing the Secretary of State for the Home Department

[18] This is an appeal from an interlocutor of the sheriff of Grampian, Highland and

Islands sitting at Aberdeen dated 12 June 2019 repelling the defender’s plea to the relevancy

of the pursuer’s case and allowing parties a proof of their averments.

[19] The appeal raises an important and, on one view, novel point of law as to whether, in

circumstances where both the First-tier Tribunal and the Upper Tribunal (the “FtT” and the

“UT”) have held that her refusal of an application for leave to remain was unlawful, and she

has not sought to appeal the decision of the UT, the Secretary of State for the Home

Department (the “Home Secretary”) owes a duty of care to grant the applicant discretionary

leave to remain and issue to the applicant a “status letter” confirming that she has such

leave, thereby enabling the applicant to obtain employment and access welfare benefits, and

to do that within a reasonable time of the decision not to seek to challenge the UT’s decision.

[20] The pursuer and respondent is the applicant for leave to remain. I shall generally

call her “the pursuer”, but given her status at certain material times it is convenient

sometimes to refer to her as “the applicant”. She claims damages in the amount of £56,000

in respect of loss and damage allegedly suffered by her as a result of the Home Secretary’s

failure to issue her with the appropriate status letter for some 20 months between March

2015, when the UT found in her favour, and November 2016, when the letter was eventually

issued. She contends in her pleadings that this failure prevented her from obtaining

employment as a lawyer within the United Kingdom, she having obtained a law degree in

Nigeria and a Masters in Oil and Gas Law at Robert Gordon University in Aberdeen; that it

prevented her from accessing benefits of any kind for herself and her children to which she

would otherwise have been entitled if unable to obtain employment; and that it made it

impossible for her to pay her rent, as a result of which she was evicted from her

accommodation and forced to seek refuge in emergency accommodation.

[21] The defender and appellant is the Advocate General for Scotland. He is sued as the

appropriate Law Officer in respect of these proceedings in terms of s.4A of the Crown Suits

(Scotland) Act 1875. For all practical purposes, the defender and appellant is the Home

[22] Recognising that the appeal raised both complex and possibly novel points of law,

the Sheriff Appeal Court on 29 October 2019 remitted the appeal to the Court of Session

[23] The assumed facts relevant to this appeal fall within a narrow compass. Sections 3

and 4 of the Immigration Act 1971 entitle the Home Secretary to grant a person leave to

remain in the United Kingdom for a limited or an indefinite period. On 16 March 2010 the

applicant applied for leave to remain, her application being based on Article 8 ECHR, the

right to respect for private and family life. Her application was refused in December 2010.

In December 20131 the applicant appealed to the FtT (Immigration and Asylum Chamber)

against that refusal. On 31 July 2014, the FtT allowed the applicant’s appeal. The Home

Secretary appealed to the UT. On 16 March 2015 that appeal was refused. The Home

Secretary did not seek to challenge the decision of the UT refusing her appeal. She became,

to use the jargon, “appeal rights exhausted”. We were not taken specifically to the reasoned

decisions of either the FtT or the UT, but those decisions were included in the productions in

this case and we have read them as part of the background to our consideration of the

issues. The sheriff records in paragraph 2 of his Note that it was a matter of agreement that

those decisions were to the effect that removal of the applicant from the UK was

[24] It appears to have been a matter of agreement before the sheriff – though the matter

is not referred to at all in the pursuer’s pleadings and no such agreement was recorded in a

1 Some explanation of the delay of three years between the Home Secretary’s decision and the appeal

to the FtT is contained within the decisions of the FtT and the UT, but the delay is of no importance

joint minute or any other written document – that there was in existence at the time relevant

Home Office policy guidance stating that persons in the class of the pursuer should be

granted discretionary leave to remain for up to 30 months. The sheriff records it in this way

“The Secretary of State has published policy guidance that provided between 2010

and 8 July 2012 a person whose removal from the UK would be incompatible with

Article 8 of the ECHR should be given discretionary leave to remain for up to three

years. From 9 July 2012, the policy changed so that, subject to certain exceptions, the

maximum period of discretionary leave which would be granted at any one time was

thirty months. The grant of leave to remain is dealt with by issuing a ‘status letter’”.

The full text of the relevant guidance is set out by Lord Doherty at para [15] of his Opinion

“[15] At the material times the Secretary of State's published policy guidance was

Chapter 53 of the EIG provided guidance on the ‘relevant factors’ to which UKBA

officials should have regard in terms of rule 395C before making a decision on

removal under section 10 of the Immigration Act 1999. The version of Chapter 53

‘Should the decision maker conclude that removal is not appropriate then leave

outside the Rules should be granted. Such leave should generally be Indefinite

Leave to Remain unless limited leave or deferred removal is the appropriate course

of action to take. However, each case must be considered on its own individual

Between April 2008 and 19 July 2011 Chapter 53 did not prescribe the length of time

for which leave to remain should be granted in the event of a decision not to remove

on Rule 395C grounds. From 20 July 2011 until rule 395C was revoked on 13

February 2012 Chapter 53 provided that in such circumstances discretionary leave to

Between 2010 and 8 July 2012 a person whose removal would be incompatible with

article 8 ECHR should be given discretionary leave to remain for up to three years.

From 9 July 2012 the policy changed so that, subject to certain exceptions, the

maximum period of discretionary leave which would be granted at any one time was

The present case concerns events after July 2012, so the policy with which we are concerned

was that, subject to certain exceptions (which neither party has suggested are relevant here),

once it had been determined that an applicant’s removal from the United Kingdom would

be incompatible with Article 8 ECHR, that applicant should be given discretionary leave to

[25] It is contended by the pursuer, and I did not understand it to be disputed, that

without the grant of a status letter a person will find it impossible to obtain employment and

[26] The Home Secretary did not issue the pursuer with a “leave to remain” status letter,

until November 2016. No explanation for the delay between March 2015 and November

2016 has been provided. It is not said that the delay was due to any requirement on the part

of the Home Secretary to make further enquiries or to exercise a discretion as to whether or

not to issue a status letter in light of the UT’s determination of her appeal, or to any need to

resolve some question as to the applicability of her policy to the case of the pursuer. At

paragraph 9 of his Note, the sheriff records the position adopted by Mr Pugh on behalf of

“He summarised the factual basis of the case categorising the failure on the part of

the defender as a delay in granting the pursuer leave to remain. No explanation is

given in the defender's pleadings for the delay in issuing a status letter. Mr Pugh

explained that there was no dispute but that there was a delay. The Secretary of

State accepts that. From the date of the Upper Tribunal's decision the natural

consequence was that leave to remain should have been granted to the pursuer. No

explanation was offered in submissions. It was accepted that the defender simply

failed to do something which should have happened, namely the issuing of the

That position taken before the sheriff reflects the position adopted by Mr McIlvride QC on

[27] Since the matter comes before this court on the question of relevancy, it is of some

importance to examine the pleadings. Article 2 of Condescendence sets out in narrative

form the decisions made leading to the point where the Home Secretary became appeal

rights exhausted. Article 3 avers that in those circumstances the Home Secretary came

“3. The Defenders knew or ought to have known that the Pursuer was entitled to

be granted leave to remain in the United Kingdom as early as 15th December 2014.

That entitlement was expressly recorded in writing on 16th March 2015. It is

explained and averred that the Home Secretary owed the Pursuer a duty to take care

in the administrative implementation of the immigration decisions in her favour.

More particularly, the Home Secretary owed the Pursuer a duty to ensure that she

received a status letter which she could use to obtain paid employment and/or access

The relevance of 15 December 2014 appears to be that this was the date of the hearing at

which the UT indicated that it was minded to refuse the appeal from the FtT. We are not

concerned with that in this appeal. The UT’s formal decision is dated 16 March 2015. The

nub of the pursuer’s case on breach of duty is set out in Article 4 of Condescendence. This

“4. Despite repeated requests by the Pursuer, the Secretary of State for the Home

Department refused or at least delayed to issue the Defender with leave to remain

until in or around November 2016. The Home Secretary was under a duty to

obtemper both orders of the immigration tribunals and, ultimately, to issue the

Pursuer with a status letter in implementation thereof. It is averred that the Home

Secretary, or those acting on her behalf, ought to have done so within a reasonable

time; and the Secretary of State was under a duty to issue the leave to remain to the

Pursuer within a reasonable period. By not so doing the Secretary of State for the

Home Department failed in their (sic) duties and were wilfully negligent. As a

consequence of the maladministration committed by the Home Secretary, or those

acting on her behalf, the Pursuer suffered reasonably foreseeable, and predictable,

financial loss and damage. But for the Home Secretary's failure(s) (or the failure(s) of

those acting on her behalf) to obtemper and implement the orders of the immigration

tribunals, at all or within a reasonable time, the loss and damage would not have

The alleged duty is encapsulated in the pursuer’s first plea-in-law as follows:

“1. The Pursuer having suffered loss and damage through fault on the part of the

Secretary of State for the Home Department, is entitled to reparation from them

The reference in Article 4 to “maladministration” is not supported by averments of malice or

want of probable cause, a matter to which I return briefly below, nor is it followed through

to any appropriate plea-in-law. All that is focused in the plea-in-law is “fault”, which, in

light of what has gone before, presumably refers to alleged breaches of the duties identified

in Article 3, namely the duty “to take care in the administrative implementation of the

immigration decisions in [the pursuer’s] favour”, and Article 4, namely the duty “to

obtemper [within a reasonable time] both orders of the immigration tribunals and,

ultimately, to issue the Pursuer with a status letter in implementation thereof”.

[28] I shall refer in due course to the submissions before this court, but it should be

noticed at this stage that Ms Crawford QC, who appeared for the pursuer before us (though

she did not appear in the sheriff court), focused her arguments not on the alleged duties set

out in the passages quoted but on an assumption of responsibility by the Home Secretary.

That was said to arise to a significant extent from the existence of the policy guidance

referred to above. This line of argument does not feature in the pursuer’s pleadings. Legal

arguments do not require to be set out in terms. However, in so far as the assumption of

responsibility is based upon anything said or done by the Home Secretary, or the Home

Office, those facts should be averred. It is a matter of some concern that, in a procedure

focused on the relevance of the pursuer’s pleadings, those pleadings do not even mention

the key elements of her case. For my part I would not wish to decide this case in the absence

of averments on this critical point, but it seems to me that if this matter is to proceed further

in the sheriff court, whether by way of proof or proof before answer, the pursuer should be

required to amend so as to make relevant averments of all matters relied upon in support of

her argument, including in particular the terms of the relevant guidance, its statutory or

other basis, and the impact of that guidance on the arguments anent the existence or

otherwise of the duty of care contended for, as well as any actions of the Home Secretary or

those acting on her behalf upon which the pursuer relies to justify the assumption of

responsibility argument. This is not an insistence on procedural niceties for their own sake.

These key matters will be of direct relevance to the success or otherwise of the pursuer’s

case; and the question of whether the policy applied to the pursuer’s case, or whether the

Home Secretary was entitled to disapply it, may also be of relevance. That latter point is

hinted at in the pursuer’s Note of Argument where she says that the Home Secretary “has

not argued that the policy did not, or should not, apply to the pursuer”, a statement of fact

which may well be correct, though it is difficult to see where such an argument would be

made by the Home Secretary, in the pleadings at least, when the policy itself is not

mentioned by the pursuer. Other points of importance are similarly not mentioned in the

pleadings. It is said by the pursuer in her Note of Argument that the status letter entitles the

person to whom it is issued to obtain employment and access welfare benefits. That, too,

does not appear to be in dispute, but it is not apparent from the pursuer’s pleadings in the

sheriff court action whether this is said to be the legal effect of the issue of a status letter or,

conversely, whether the position is simply that the practical consequence of not having such

a letter is that one is prevented from obtaining employment and accessing such benefits.

[29] I do not suggest, however, that we decide the case on the basis of the deficiencies in

the pursuer’s pleadings. The point of law raised in this case is capable of being decided on

the pleadings as they stand as amplified in the course of submissions.

[30] Before the sheriff, it was argued on behalf of the Home Secretary that no duty of care

was owed to the pursuer in circumstances where the Home Secretary was simply fulfilling

her statutory function. There was authority against there being any such duty of care (W v

Home Office [1997] Imm AR 302 and Mohammed v Home Office [2011] 1 WLR 2862). Esto those

cases were not decisive, the court should proceed incrementally from the existing

authorities. There was no basis upon which it could be held that there was a relationship of

proximity between the defender and the pursuer or that it was fair, just and reasonable to

impose a duty of care (Caparo Industries plc v Dickman [1990] 2 AC 605). On behalf of the

pursuer, reliance was placed upon the decision of Keith J in R (Kanidagli) v Secretary of State

for the Home Department [2004] EWHC 1585 (Admin). It was submitted that that case was

clear authority for the proposition that a duty of care was owed by the Home Secretary in a

case such as this. Esto that case was not on all fours with the present, it provided the basis

for the court in this case, proceeding incrementally, to hold that a duty of care was owed to

[31] It is apparent from the sheriff’s Note that the argument before him came to be

focused almost exclusively on the question whether the judge in Kanidagli had correctly

distinguished the reasoning of the Court of Appeal in W; and whether the reasoning in

Kanidagli had in its turn been disapproved by the Court of Appeal in Mohammed. The sheriff

accepted the arguments advanced on behalf of the pursuer, held that Kanidagli had correctly

distinguished W and had not been disapproved in Mohammed, and concluded that Kanidagli

determined the issue in the pursuer’s favour. In any event, the decision in Kanidagli

provided a sound basis for holding, on an incremental basis, that the relationship between

the pursuer and the Home Secretary was sufficiently proximate and that it was fair, just and

[32] Accordingly, he repelled the first plea in law for the defender (a plea to the relevancy

of the action) and appointed the case to a proof. For my part, if we had otherwise been in

favour of the pursuer, I would have thought that the appropriate disposal was to order a

[33] For the Home Secretary, Mr McIlvride invited the court to allow the appeal, sustain

[34] He submitted that, in Scots law, a public official will be liable in damages for

maladministration in exercising his or her public functions only if proved to have been

acting with malice or want of probable cause: Micosta SA v Shetland Islands Council 1986

SLT 193, Lord Justice-Clerk Ross at 198G-I, Shetland Line (1984) Ltd v Secretary of State for

Scotland 1996 SLT 653, Lord Johnson at 658 sub-para.(5); and see also Kiani v Secretary of State

for Business, Innovation and Skills [2013] CSOH 121, Lord Hodge at para [17] and Philp v

Highland Council [2018] CSIH 53, Lord President Carloway, giving the judgment of the court,

at paras [34]-[35]. The pursuer made no averments of malice or want of probable cause. It

was not enough for the pursuer to say, as she did say in her written submissions, that malice

could be inferred from the conduct of the Home Secretary in failing to issue a status letter

without any attempt to explain how that failure occurred. The only question for

determination was whether the pursuer’s pleadings were relevant for enquiry. As already

observed, those pleadings made no mention of malice or want of probable cause, either

expressly or by inference. Accordingly, in so far as the case was based upon

[35] Mr McIlvride submitted that the Home Secretary owed no duty of care to the

pursuer to issue a status letter within a reasonable time. In so far as the pursuer’s case was

based in negligence, it was bound to fail and was irrelevant. Kanidagli, upon which the

sheriff had based his decision, was wrongly decided and had been disapproved by the

Court of Appeal in Mohammed. The 1971 Act conferred a power on the Home Secretary to

grant leave to remain but did not impose any duty on her in that respect. Even if the effect

of the FtT and UT decisions was to leave the Home Secretary with no alternative but to issue

the pursuer with a status document, so that her failure to do so within a reasonable time or

at all might be susceptible to judicial review, it did not follow that that public law duty, to

use that shorthand, transposed into a duty of care at common law. Mr McIlvride referred us

to the decision of the House of Lords in Gorringe v Calderdale MBC [2004] 1 WLR 1057 for the

statement by Lord Hoffmann that where a statute did not create a private right of action, “it

would be, to say the least, unusual if the mere existence of the statutory duty could generate

a common law duty of care” (para 23); and he found it “difficult to imagine a case” in which

a common law duty could be founded simply upon the failure, however irrational, to

provide some benefit which a public authority has power, or even a public law duty, to

provide (para 32). Those observations were reflected in the judgment of Sedley LJ in

Mohammed at para 14: “As a general rule the proximity created by a statutory relationship

does not by itself create a duty of care”. Particular reliance was placed on two recent

Supreme Court decisions (Robinson v Chief Constable of West Yorkshire [2018] AC 736 and N v

Poole Borough Council [2019] 2 WLR 1478) which both explained the development of the

common law in this area up to and including the decision in Caparo, and sought to establish

a coherent framework for the assessment of whether a duty of care is owed by a public body

in any particular case. In Robinson at para 29 Lord Reed explained that, properly

understood, Caparo achieved a balance between legal certainty and justice. He pointed out

that in the ordinary case the courts generally consider what has been decided previously

and follow those precedents. In other cases, where the question of the existence of a duty of

care has not previously been decided, the courts consider the closest analogy in the existing

law with a view to maintaining legal coherence and the avoidance of inappropriate

distinctions; and they also weigh up the reasons for and against imposing liability in order

to decide whether the existence of a duty of care would be fair, just and reasonable. Mr

McIlvride submitted that the previously decided cases of W and Mohammed already

established that no duty of care existed in a case such as this. In so far as those cases did not

provide a complete answer to the question whether a duty arose in the present case, they

were the cases most closely analogous to the present. No incremental development of the

common law starting from those cases would permit a finding that the Home Secretary

owed a duty of care in the present case. In N, a case about whether certain provisions of the

Children Act 1989 gave rise to a duty of care, Lord Reed took the opportunity of clarifying

what he called the “shifting approaches by the highest court” on the issue of the liability of

public authorities for their conduct of their statutory powers and duties: see para 25. At

para 28, Lord Reed pointed out that, like private individuals, “public bodies did not

generally owe a duty of care to confer benefits on individuals”, but that, as in the case of

private individuals, “a duty to protect from harm, or to confer some other benefit, might

arise in particular circumstances, as for example where the public body had created the

source of danger or have assumed responsibility to protect the claimant from harm”. He

deliberately drew the distinction between “causing harm (making things worse) and failing

to confer a benefit (not making things better)” rather than the more traditional distinction

between acts and omissions, and Mr McIlvride submitted that the present case was one in

which it was being asserted that the Home Secretary owed a duty to confer a benefit. At

para 65 Lord Reed gave the following summary of the relevant principles concerning the

potential liability of public authorities (I quote it in full because it assumed centre stage in

“65 It follows (1) that public authorities may owe a duty of care in circumstances

where the principles applicable to private individuals would impose such a duty,

unless such a duty would be inconsistent with, and is therefore excluded by, the

legislation from which their powers or duties are derived; (2) that public authorities

do not owe a duty of care at common law merely because they have statutory

powers or duties, even if, by exercising their statutory functions, they could prevent

a person from suffering harm; and (3) that public authorities can come under a

common law duty to protect from harm in circumstances where the principles

applicable to private individuals or bodies would impose such a duty, as for example

where the authority has created the source of danger or has assumed a responsibility

to protect the claimant from harm, unless the imposition of such a duty would be

Mr McIlvride submitted that the present case effectively fell within that second category.

The Home Secretary could confer a benefit on the respondent in the exercise of her statutory

functions, but did not owe a duty of care to do so. The pursuer’s argument depended

entirely upon the statutory relationship of the Home Secretary towards the pursuer. The

pursuer’s attempt to translate that statutory relationship into an assumption of

responsibility by the Home Secretary was bound to fail. There was no basis upon which to

hold that the Home Secretary had assumed the responsibility to the pursuer. The only

relevant facts were that the tribunals refused the Home Secretary’s appeal and that, in light

of that refusal, the matter went back to the Home Secretary to operate the statutory scheme.

[36] Mr McIlvride submitted that, even if the relationship of proximity was established, it

was neither fair, just nor reasonable to impose a duty of care in a case such as this. The

losses sought to be recovered were pure economic losses, in respect of which the courts are

slow to create duties of care. And in any event the pursuer had other remedies, whether by

judicial review, or a claim under Article 8 ECHR, or, as noted in Mohammed at paras [25]-

[26] , by seeking assistance from the Parliamentary Ombudsman.

[37] For the pursuer, Ms Crawford QC invited the court to refuse the appeal, alternatively

to allow it only to the extent of appointing the matter to a proof before answer, leaving all

[38] Ms Crawford made it clear that she was not advancing a case of “maladministration”

in support of which it would be necessary to show malice or want of probable cause:

Micosta. However, if malice or want of probable cause were necessary in order to instruct a

case that the Home Secretary was in breach of a common law duty of care, then it could be

established from the fact of the unexplained delay and the absence of any attempt to argue

that consideration was being given to departing from the policy – in other words it was a

case where there was no real exercise by the Home Secretary of her statutory function.

[39] Ms Crawford’s primary submission was that the duty of care incumbent on the

Home Secretary was based on orthodox principles of negligence. It arose in respect of her

failure to take reasonable care in the exercise of a purely administrative or operational act.

She contrasted this with what she described as the Home Secretary’s erroneous contention

that the pursuer sought to impose a common law duty of care in respect of the discharge of a

statutory power. The distinction was well illustrated by comparing the cases of W and

Mohammed with the decision of Keith J in Kanidagli. In W and Mohammed the Home

Secretary still had something to investigate and determine. Whatever the nature of the

failure, it occurred in the course of exercising the statutory discretion. By contrast, in

Kanidagli, once the tribunals had made their decisions and it had been resolved that there

was to be no further appeal, all that remained for the Home Secretary was to issue the status

letter in accordance with the then existing policy. That was a critical distinction which the

[40] Ms Crawford submitted that the Home Secretary had assumed responsibility to take

care to grant the pursuer leave to remain and to issue a status letter within a reasonable

time. A number of factors were relied upon in support of the assumption of responsibility

argument. They were: (i) the decision of the UT; (ii) the lack of challenge to that decision;

(iii) the Home Secretary’s policy designed to regulate dealings with, and to ensure

continuity of decision-making in respect of, a defined class of persons, i.e. granting

discretionary leave of up to 30 months to those whose enforced removal from the United

Kingdom would contravene ECHR; (iv) the absence of a departure from that policy; (v) the

fact that leave to remain was required to access welfare benefits and employment; (vi) the

20 month delay in granting leave to remain. Ms Crawford also relied on: (vii) the fact that

the pursuer forms part of a limited and identifiable class; and (viii) the absence of any

suggestion that a duty of care would not impose any undue burden on the Home Secretary

timeously to carry out her administrative functions. Put compendiously, this was a case

where it could be said that the Home Secretary had created the source of danger, viz the

inability of a person in the position of the pursuer to access benefits or obtain work without

a status letter, or at least had control over it; she had set up a system for the issuing of a

status letter to an applicant who, in light of decisions by the FtT and the UT could not

lawfully be removed on ECHR grounds; and she was aware of the need to issue such a letter

within a reasonable time, since without it the applicant would be likely to suffer hardship.

In light of all that it could properly be said that she had assumed responsibility for the

[41] Thus understood, the case fell within classic common law principles instructing a

case of negligence. Public authorities are generally subject to the same general principles of

the law of negligence as private individuals and bodies, except to the extent that legislation

requires a departure from those principles: see N, Lord Reed at paras 64 and 65. Lord Reed

makes it clear in N, at para 65, that public authorities do not owe a duty of care at common

law merely because they have statutory powers or duties the exercise of which might

prevent a person from suffering harm; but he emphasises, at para 72, that previous cases

should not be understood as meaning that an assumption of responsibility can never arise

out of performance of statutory functions; it may do if the conduct of the authority pursuant

to its statutory duties meets the criteria set out in cases such as Hedley Byrne & Co Ltd v Heller

& Partners Ltd [1964] AC 465 and Spring v Guardian Assurance plc [1995] 2 AC 296. Each case

requires attention to be directed to the detailed circumstances of the particular case and the

particular relationship between the parties: Gorringe, per Lord Steyn at para 2; Customs &

Excise Commissioners v Barclays Bank plc. [2007] 1 AC 181, per Lord Bingham of Cornhill at

para 8 and per Lord Mance at para 93. The pursuer does not seek to impose on the Home

Secretary a common law duty based solely on the existence of a public law duty.

[42] Esto the case was properly classed as “novel”, Ms Crawford submitted that it met the

incremental approach. She relied on a number of cases – Kanidagli, McCreaner v Ministry of

Justice [2015] 1 WLR 354 and Sebry v Companies House [2016] 1 WLR 2499 – as illustrating

situations in which a public body was found to be under a duty of care at common law for

actions taken, not at the stage where a discretion was being exercised and a judgment made

about what action to take, but at the later stage where all that was left was implementation

of the decision which had been arrived at. The headnote in the law report of Mohammed, she

submitted, accurately stated the ratio in the case and, far from being against her, in fact

supported this distinction. W was a case where the wrongful action, the “crass

administrative mistake” as Sedley LJ called it in Mohammed, did not of itself involve the

exercise of any decision making judgment, but it occurred during the stage where the

Secretary of State still had a decision to make on the merits of the application for leave to

remain. W was correctly distinguished on that basis in Kanidagli. For the same reasons, both

W and Mohammed were correctly distinguished in McCreaner. These cases suggested that

there was a sound basis for proceeding by analogy and holding there to be a common law

[43] Before turning to consider the critical arguments in this case, it is useful to clear away

[44] It is important to remind oneself that this is not a case where the pursuer advances a

case of maladministration in the Micosta sense, in support of which it is necessary to prove

malice or want of probable cause. Ms Crawford expressly disclaimed any such contention

and the pursuer has, in any event, no pleadings to support such a case. Although there is a

reference to “maladministration” in Article 4 of Condescendence, that stands alone and can

[45] Ms Crawford rather faintly suggested that if it were necessary to show malice, that

could be found in the Home Secretary’s failure to put forward any explanation for failing to

issue the status document for some 20 months. I do not understand how this point arises.

If, as Ms Crawford concedes, the pursuer’s case is based upon there being a duty of care

owed to her by the Home Secretary, breach of such duty is established by proof that due

care was not in fact taken. In those circumstances it is not contended on behalf of the Home

Secretary that the pursuer would have to go further and prove malice or want of probable

cause. However, in any event, it simply will not do to raise the question of malice without

there being any averment of malice in the pleadings. If malice is to be part of the pursuer’s

case it must be pleaded with full particularisation, even if it focuses mainly or even

exclusively upon an inference sought to be drawn from the absence of any explanation by

the Home Secretary for her failure to issue the document. In this respect it is akin to an

allegation of fraud, as to which see Royal Bank of Scotland plc v Holmes 1999 SLT 563, Lord

[46] A substantial part of the pursuer’s case is based on the assertion that the Home

Secretary had a duty “to obtemper both orders of the immigration tribunals and, ultimately,

to issue [the applicant] with a status letter in implementation thereof”. Ms Crawford did not

support this line of argument in her submissions. And rightly so, because neither the FtT

nor the UT made any order directing the Home Secretary to grant leave to remain or to issue

a status letter in accordance with her policy. They had no power to do so. Those tribunals

found only that the applicant’s removal from the United Kingdom would amount to a

disproportionate interference with her and her family’s Article 8 rights. It was then for the

Home Secretary to decide whether to seek to challenge those decisions or, if there was to be

no further challenge, to determine how to act consistently with them. In so far as the case

for the pursuer is premised upon an assertion that the tribunals ordered the Home Secretary

to grant leave to remain, and that the Home Secretary was bound to obtemper such orders,

[47] The averment in Article 3 of Condescendence, that the Home Secretary owed the

pursuer duties “to take care in the administrative implementation of the immigration

decisions in her favour” and “to ensure that she received a status letter which she could use

to obtain paid employment and/or access state benefits for herself and her children.”,

deserves more attention. It is in support of these averments that the pursuer advances her

argument that the Home Secretary owed the pursuer a duty of care to protect her from harm

(or to confer a benefit on her) by issuing, within a reasonable time of the promulgation of the

UT decision (and the expiry of the time for appealing against it), a status document enabling

[48] In her written and oral submissions, Ms Crawford emphasised that the pursuer does

not argue that the Home Secretary owed her any duty of care to exercise reasonable care to

protect her from harm, or to confer a benefit on her, when discharging statutory functions

and duties under the 1971 Act. But she argues that after the decision had been taken not to

challenge the decision of the UT, the only option available to the Home Secretary in terms of

her own guidance was to grant the pursuer discretionary leave to remain for a period of up

to 30 months and to issue the pursuer with a status document enabling her to obtain work

and/or access benefits. By that stage there were no other alternatives open to the Home

Secretary (I leave out of account that there was in theory at least still a decision to be made

as to the length of the period in respect of which discretionary leave to remain would be

granted). She was under a public law duty to act in this way. That public law duty to act,

and to act in a particular way, was an important plank in the argument that the Home

Secretary also owed the pursuer a common law duty to take reasonable care to do these

things within a reasonable time. It was not clear to me, in listening to his submissions,

whether Mr McIlvride accepted that the Home Secretary was under a public law duty to act

in this way during that period and that her failure to do so put her in breach of that public

[49] On this limited aspect of the case I consider that Ms Crawford is correct. Once the

UT had upheld the decision of the FtT to the effect that the removal of the pursuer from the

United Kingdom would amount to a disproportionate interference with her and her family’s

Article 8 rights, and once the Home Secretary had determined not to challenge that decision

and had become appeal rights exhausted, then in terms of her own policy the Home

Secretary was required to grant the pursuer discretionary leave to remain for a period of up

to 30 months. It is, to my mind, axiomatic that she should do so within a reasonable time. If

she did not do so, she would have been susceptible to an order made by the court on a

petition for judicial review. Standing the terms of her own policy, it is difficult to see what

answer there could have been. That is what I refer to when I say that the Home Secretary

was under a public law duty to act in this way. But I need not decide that finally for present

purposes. It would be sufficient for the pursuer, in an argument anent the relevance of her

pleadings, to maintain that it is at least arguable that the Home Secretary would have been

compelled by judicial review to issue her with discretionary leave to remain in accordance

with her policy and issue her with a status document. I consider that that is indeed highly

arguable; and for the purpose of the discussion that follows I proceed upon the basis that the

Home Secretary did indeed owe the pursuer a public law duty to grant discretionary leave

[50] Having said all that, however, I am not persuaded that this point takes the pursuer

very far. In Gorringe v Calderdale MBC [2004] 1 WLR 1057, a case concerned with the extent

of the public law duty of a highway authority to maintain the highway and whether that

public law duty translated into a duty of care at common law, the House of Lords appears

not to have considered that its analysis would have been any different depending upon

whether the failure by the public authority was a failure to exercise a power or a failure to

act in accordance with a public law duty: see, for example, Lord Hoffmann at para 32. One

can see the logic in saying it is more difficult to fashion a common law duty of care out of a

public law power, since the decision by the authority as to whether or not to exercise a

power involves a measure of policy, judgement and discretion on their part; but it does not

follow from this that a common law duty of care will readily be implied in the case of the

[51] The difference between a power and a duty overlaps to a large extent with the

distinction, relied on by the pursuer, between policy (i.e. exercising discretion or judgment)

and operations (implementation of whatever policy decision has been reached). This

distinction was addressed by Lord Hoffmann in Stovin v Wise [1996] AC 923, where he said

“There are at least two reasons why the distinction [i.e. between policy and

operations] is inadequate. The first is that … the distinction is often elusive. … But

another reason is that even if the distinction is clear cut, leaving no element of

discretion in the sense that it would be irrational (in the public law meaning of that

word) for the public authority not to exercise its power, it does not follow that the

“In summary, therefore, I think that the minimum preconditions for basing a duty of

care upon the existence of a statutory power, if it can be done at all, are, first, that it

would in the circumstances have been irrational not to have exercised the power, so

that there was in effect a public law duty to act, and secondly, that there are

exceptional grounds for holding that the policy of the statute requires compensation

to be paid to persons who suffer loss because the power was not exercised.”

In N, at para 31, under reference to these passages, Lord Reed spoke of the distinction

between policy and operations having been “rejected” in Stovin v Wise. Accordingly, the

common law will not impose a duty of care to run alongside a public law duty, save for very

[52] The law of negligence, particularly as applied to public authorities, has now to be

understood in light of the seminal decisions of the Supreme Court in a trilogy of recent

cases, viz Michael v Chief Constable of South Wales Police [2015] AC 1732, Robinson v Chief

Constable of West Yorkshire [2018] AC 736 and N v Poole BC [2019] 2 WLR 1478.

[53] In Michael, the Supreme Court made it clear that it was a mistake to regard Caparo

Industries plc v Dickman [1990] 2 AC 605 as establishing a tripartite test for the determination

of whether and in what circumstances a duty of care may be owed by one person to another.

“29. Properly understood, the Caparo case thus achieves a balance between legal

certainty and justice. In the ordinary run of cases, courts consider what has been

decided previously and follow the precedents (unless it is necessary to consider

whether the precedents should be departed from). In cases where the question

whether a duty of care arises has not previously been decided, the courts will

consider the closest analogies in the existing law, with a view to maintaining the

coherence of the law and the avoidance of inappropriate distinctions. They will also

weigh up the reasons for and against imposing liability, in order to decide whether

the existence of a duty of care would be just and reasonable. In the present case,

however, the court is not required to consider an extension of the law of negligence.

All that is required is the application to particular circumstances of established

[54] So far as concerns the position of public bodies, our attention was drawn to passages

in the judgment of Lord Reed in N, where he referred with approval to the earlier decisions

of the House of Lords in Stovin v Wise [1996] AC 923 and Gorringe v Calderdale MBC [2004] 1

WLR 1057, the significance of which, he said, “took time … to be fully appreciated”: N

para 34. A number of points can be taken from these cases which are of direct applicability

(1) Public authorities may owe a duty of care in circumstances where private

individuals would owe such a duty, unless that duty is inconsistent with or excluded

by the terms of any legislation imposing or regulating the duty: Stovin v Wise, per

Lord Hoffmann at 947, Robinson, per Lord Reed at paras 32-40, N at paras 31 and 65.

(2) Neither private individuals nor public bodies generally owe a duty of care to

confer benefits on others: N at para 28. The distinction is drawn between causing

harm, as in making things worse, and failing to confer a benefit, as in not making

things better. This terminology conveys the rationale better than the traditional

distinction between acts and omissions: and see also Robinson per Lord Reed at para

69 points 4 and 5. In the present case the duty allegedly owed by the Home Secretary

is, in this terminology, a duty to confer a benefit by granting discretionary leave to

remain and providing a status letter enabling the pursuer to access employment

(3) In considering whether a public body is liable in damages to an individual

claiming to have been harmed by its conduct, the first step is to ascertain whether the

relevant legislation under which it is acting itself creates a private right of action. If

the answer to that is in the negative, “it would be, to say the least, unusual if the

mere existence of the statutory duty could generate a common law duty of care”:

Gorringe, Lord Hoffmann para 23 (and see also para 32). The same point is made by

Lord Hoffmann in Stovin v Wise at page 952, cited with approval in N at para 31.

(4) It follows that except in a case where the relevant statute expressly or by

implication itself creates a private right of action to run alongside the statutory duties

incumbent on the public body, the mere existence of a statutory duty is not sufficient

to give rise to a common law duty of care. There must be something more.

[55] Lord Reed provided a summary of the position in N at para 65:

“65. It follows (1) that public authorities may owe a duty of care in circumstances