High Court considers how the loss of work may engage article 8

The treatment of a person’s job in human rights claims has been ambiguous and inconsistent in previous High Court decisions, but the judgment in Kulumbegov v Home Office [2023] EWHC 337 (KB) usefully corrals the decisions of Denisov v Ukraine (app. no. 76639/11), R (oao Atapattu) v SSHD [2011] EWHC 1388 (Admin), and Husson v SSHD [2020] EWCA Civ 329, to confirm two discrete routes in which the loss of work may engage article 8 of the European Convention on Human Rights (ECHR). The decision in this case was a claim for damages, however it also offers some useful pointers as to how these routes may be evidenced in practice. 

Background

Mr Kulumbegov came to the UK with his family on a Tier 2 (ICT) visa in 2010. In 2016, he was convicted of assaulting his wife and received a community sentence. They later split up and Mr Kulumbegov stopped seeing his children. This was all disclosed to the Home Office.

Mr Kulumbegov’s application to extend his Tier 2 status was refused in 2018 under paragraph 322(5) of the immigration rules. Relying on his conviction, the Home Office said that his removal would be conducive to the public good. He was put on immigration bail with a condition that he could not work.

The refusal was quashed following judicial review proceedings. Mr Kulumbegov had also asked for damages for the loss of earnings and a mandatory order compelling the Home Office to grant him indefinite leave to remain. Pepperall J, sitting in the Upper Tribunal, refused to grant either. To the former, the judge said that a damages claim is better suited to the High Court or County Court. 

Mr Kulumbegov was granted indefinite leave to remain on a discretionary basis some years later and after further litigation. In doing so, the Home Office also granted a fee waiver. The case covered here is the decision of the High Court after Mr Kulumbegov issued a claim for damages.

The claim

 Mr Kulumbegov issued a claim in the High Court for damages under section 8 of the Human Right Act 1998, arguing that his article 8 ECHR rights had been breached. He wanted a sum of money to compensate for the loss of his job, sponsor, and professional development. The claim had been brought outside the one-year time limit under section 7(5)(a) of the Human Rights Act and was therefore barred from consideration due to the passage of time.

However, the judge went on to consider and dismiss the substantive issue. The finding that he did not meet the threshold to engage article 8 is less important than the judge’s helpful consideration of the authorities. Although the law is clear that there is no general right to employment under article 8, the judge identifies two possible routes in which it might be engaged. Both stem from what the European Court of Human Rights in Denisov termed the “consequence-based” approach. This involves consideration of the negative effects on a person’s private life.

Article 8 protects the opportunities to maintain and develop human relationships, including in the workplace and community in which a person leads their life. This involves more than the economic opportunities of a salary and career, or what a job confers.

In considering engagement of article 8, a judge is required to consider the consequences to (a) a person’s inner circle; (b) his opportunity to establish and develop relationships; and (c) his reputation. Once this is established, the judge must then consider whether the consequences are sufficiently severe to amount to a violation of article 8.

These are cases where article 8 is breached because a person is wholly or substantially deprived of the ability to work altogether. This is a high threshold and is not limited to the UK. The judge must consider, as a matter of real-world practicality, whether it was unrealistic to expect a person to work anywhere in the world. It must be a realistic assessment of the alternatives left to a claimant, however unattractive. Those alternatives can be considered in light of other interests, such as a person’s established family life. The court may also consider the impact of a person’s reduced financial position and whether it was so acutely difficult that it was a violation of his human dignity.

Comments

Mr Kulumbegov’s damages claim was unfortunately brought outside of the one-year time limit for considering claims of its kind, but the judgment usefully highlights two routes in which the loss of work may engage article 8.

In spite of its use, the decision is also a missed opportunity. The judge was very careful to explain the issues because Mr Kulumbegov was a litigant in person. However, this seems to have inhibited the judge’s ability to explore both routes in greater detail. For example, she was unable to move on to considering matters against article 8(2) due to the lack of evidence of Mr Kulumbegov’s impecuniosity and his professional “inner circle”.

This decision provides a clear and useful framework in which a case may be interrogated, built, and presented. Though Mr. Kulumbegov’s matter was a claim for damages, it can easily be seen how these two routes can be transposed into submissions to the Home Office or before the First-tier Tribunal in a section 82 appeal.

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