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Permission to Work (22 February 2010)

There are thousands of foreign nationals in the United Kingdom anxious to take employment if given
the opportunity to work, and many employers would welcome the skills and work ethic that they can
bring to the workplace. Employers are generally familiar, at least in outline, with the requirements of
the Immigration Rules that apply to those that come to the United Kingdom for the purpose of taking
employment. In this series of articles we explore the position of those who may have the right to
work in the United Kingdom, despite not entering for that purpose.
Subsequent asylum applicants are, at present, in limbo when it comes to permission to work regardless of the fact that
the law has been decided in their favour. The law as it stands is governed by the Court of Appeal’s judgment of ZO
(Somalia) & Ors v Secretary of State for the Home Department [2009] EWCA Civ 442, a case taken to the Court of
Appeal by Duncan Lewis.
The Court considered the question “Does a person whose asylum claim has been finally determined in a country A against
him or her and who makes a subsequent claim for asylum in country A come within the ambit of the…Reception Directive
and thus is able to enjoy the benefits of Article 11(2) of the Reception Directive?” (paragraph 1 of the Judgment), this was
the sole real issue between the parties as the Court made clear: “The respondent…does not dispute that if a person who
has made the subsequent claim for asylum is within the ambit of the Reception Directive, then the Secretary of State for
the Home Department is obliged to grant permission to work in accordance with Rule 360 of the Immigration Rules if a
decision at first instance has not been taken within one year of the presentation of the subsequent application for asylum
and this delay cannot be attributed to the applicant” (paragraph 9 of the Judgment).
The Court of Appeal held unanimously that for these purposes an ‘initial claim’ and a ‘subsequent claim’ were
indistinguishable and dismissed his appeal from the High Court. So for once all is clear and simple in immigration law?
A trick question obviously.
The Secretary of State has sought and been granted permission to appeal the Court of Appeal judgment to the
Supreme Court. Generally speaking it is trite law that the law as it is stated by a Court of Record is the law at that
time, and can be enforced notwithstanding any continuing appeal. Thus, when seeking permission to appeal a judgment
below, it is necessary to seek a stay of execution of that judgment if one is required. This can lead to strange situations after a successful appeal to a superior court in which we ‘discover’ that the law has all along been otherwise than
previously stated.

In a stance diametrically opposed to the position he took in the Nasseri litigation the Secretary of State relies upon the
grant of permission (and relied beforehand upon the mere seeking of permission) from the Supreme Court to refuse to
consider applications for permission to work from subsequent asylum seekers even though he did not so much as
apply for a stay on implementation of the judgment.
As a result, the Secretary of State’s actions (or inaction), has led to a whole plethora of litigation being brought against him,
either in relation to the lack of a decision in a permission to work application or an outright refusal to grant repeat asylum
seekers permission to work. This type of case is now plentiful in the Administrative Court and we at Duncan Lewis currently
have numerous applications lodged.
The applications for judicial review themselves are now all stayed (some pre and some post the grant of permission)
awaiting the judgment of the Supreme Court. The situation will hopefully be resolved once this is heard in May 2010,
though a reference to the European Court of Justice remains a possibility, as the argument turns on whether or not
essentially the same term has the same meaning in two directives: the ‘Reception Directive’ 2003/9/EC and the
‘Procedures Directive’ 2005/85/EC; the Secretary of State contends that they do not. That is a good pointer to the
difficulties the Secretary of State has had in defending his position, but there are subtleties to the argument, and it does
turn on the construction of EU law, and unless a Untied Kingdom Court is clear beyond doubt (the ‘acte claire’ doctrine) it
is under a duty to refer the question of interpretation to the European Court of Justice.
In order to protect the Claimant’s position, it is usually necessary to make an application for interim relief. This is considered further in the next article.