Afghan refugee wins substantial EU/HRA damages from Home Secretary for destitution

The Home Secretary has paid Sayed Rahimi £10,000 in damages, concluding his claim against her for breaches of EU law and the Human Rights Act after she left him destitute for two months.

Mr Rahimi was at the time an Afghan asylum seeker, who had made a fresh asylum claim. (She subsequently granted him Humanitarian Protection and then finally recognised him as a refugee in March 2022.)

The Home Secretary had agreed to support him in December 2019 while his fresh claim was considered. However, she said that he did not attend to be transported to the accommodation by her contractors and that she had no further duties. The claimant maintained that he had never been informed that his travel had been arranged, and his efforts to arrange alternative accommodation were ignored.

In February 2020 he issued a claim for judicial review, including an interim injunction against the Home Secretary, instructing Mark Henderson and Duncan Lewis. 

Eady J considered the claim on an urgent basis, noting that “[t]he Claimant is aged 63 and has provided a witness statement explaining the health and other difficulties he is facing as a result of living on the street”. She ordered that “[t]here are grounds justifying the expedited consideration of this matter. Accordingly, the Defendant is directed to provide an urgent response”.

On the final day that Eady J permitted her to file a response, the Home Secretary finally arranged transport to the claimant’s accommodation. 

The claimant then proposed transfer of the claim from the Administrative Court to the Central London County Court (CLCC) for the determination of liability and damages.

The Home Secretary opposed this transfer. She contended that the judicial review claim should be dismissed as academic, as the relief sought had been afforded and she had agreed to pay costs to date. She maintained that any damages claim should be made by issuing a new Human Rights Act claim in the County Court.

The claimant argued in response that requiring him to bring a second claim rather than transferring the existing claim to proceed as a private law claim in the County Court was wrong in principle and obstructive in practice. 

Ultimately, after consideration of submissions from the parties, the Administrative Court (HHJ Coe QC) ruled in favour of the claimant on 19 May 2022, and ordered that the claim be transferred to the CLCC for determination of liability and damages, instead of being dismissed as academic, and ordered costs against the Home Secretary.

In the CLCC, the claimant pleaded a claim for damages, including for personal injury, under the Human Rights Act because the Home Secretary had breached his rights under Articles 3 and 8 by leaving him destitute. 

He also claimed Francovich damages under EU law, relying on transitional provisions under the EU (Withdrawal) Act 2018. He relied on multiple breaches of retained EU law with respect to the Reception Directive on minimum standards for asylum seekers (2003/9/EC). These included the duty to provide support under article 13, and the duty under article 17 to take account of the special needs of vulnerable people “such as … disabled people, elderly people…” He contended that the Home Secretary was on notice of his age and his vulnerability due to the medical evidence submitted with his fresh asylum claim yet instead of prioritising his condition had ignored it. He submitted that the seriousness of the breaches warranted state liability.

The Home Secretary responded by denying legal responsibility for the conduct of her agents and refusing to accept that the EU law right to damages applied post Brexit. 

Following a hearing in the CLCC, directions for evidence including joint expert evidence, and negotiations, the Home Secretary conceded the claim, paying £10,000 damages to the claimant in settlement.