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Reported Case

Strasbourg dismisses claim for compensation following unlawful exclusion form the labour market (11 July 2017)

Date: 11/07/2017
Duncan Lewis, Reported Case Solicitors, Strasbourg dismisses claim for compensation following unlawful exclusion form the labour market

Daniel Negassi v the United Kingdom App. No. 64337/14 ECtHR was an appeal to the ECtHR with a complaint that the unlawful failure to grant permission to work, while waiting for a decision from the Home Office on his asylum claim, was a breach of his right to respect for his private life under Article 8 of the European Convention of Human Rights (ECHR).

Under Article 11 of the Council Directive (2003/9/EC) (“the Reception Directive”), asylum-seekers in a country should be allowed to enter the labour market if a decision at first instance has not been taken within one year of the presentation of the asylum application. This is implemented in the UK Immigration Rules in paragraph 360, which states that asylum-seekers may apply to the Secretary of State for permission to work in those circumstances.

Mr Negassi arrived and claimed asylum in the UK in September 2005, but his claim was refused in January 2006. Having exhausted his appeal rights, he submitted “further representations” in support of his claim for refugee status and applied to the Secretary of State for permission to work in the UK. However, Mr Negassi did not receive a response until October 2008 when he was told by the Secretary of State that it was to be treated as a “legacy case” and that he was not entitled to work because he had exhausted his appeal rights. Mr. Negassi argued that his “further representations” were, both as a matter of fact and also on correct legal construction, a fresh application for asylum in view of the findings in R (ZO) and MM (2009) (EWCA Civ 442).

ZO and MM were two failed asylum-seekers who had made fresh representations to the Secretary of State, claiming that they amounted to fresh claims. They applied for permission to work under the Reception Directive and Immigration Rules while the Secretary of State made a decision on whether they were fresh claims, but were refused such applications. They sought to judicially review these refusals and, at the Court of Appeal, it was held that they should be entitled to permission to work. The Supreme Court upheld this decision, stating that “an application should not be regarded as having been subject to a final decision until all possible remedies had been pursued and determined”, therefore meaning that subsequent asylum applications also fall within the scope of the Reception Directive. They criticised the logic of the Secretary of State’s argument to the contrary stating that it did not follow “any conventional basis of reasoning”.

This decision led to the Home Office Immigration Rules being amended in August 2010 to provide that an offer of employment could only be accepted if, at the time of accepting the offer, it was included on the list of shortage occupations published by the United Kingdom Border Agency (UKBA).

Meanwhile, following another request for permission to work, in which Mr. Negassi pointed out that his fresh claim for asylum had been outstanding for over one year, to which there was no response, Mr Negassi lodged an application for judicial review in December 2009, challenging the Secretary of State’s refusal to grant permission. In January 2010, Mr Negassi was offered employment, but this was on condition of obtaining permission to work, which the Secretary of State was still refusing to grant.

Eventually, in March 2010, Mr Negassi was granted leave to remain, and so was entitled to work in the UK, but by then the job he had been offered had been filled and he was unable to find another job. The only issue that remained to be considered in his judicial review was a claim for damages, but this claim was rejected at the Administrative Court and his appeal dismissed at the Court of Appeal. His application for leave to appeal to the Supreme Court was refused in March 2014.

Complaint to the European Court of Human Rights

At the ECtHR, Mr Negassi argued that the refusal to grant him permission to work constituted an interference with his private life under Article 8, which was not in accordance with the law, and that as he had been unlawfully prevented from taking the job offer up, he ought to receive compensation.

The UK Government submitted to the ECtHR that the applicant’s complaint was inadmissible under Article 35(3)(b) of the ECHR, because Mr Negassi had not suffered a “significant disadvantage”. This, the Government argued, was because he had enjoyed an unconditional right of access to the UK labour market since his grant of leave. Furthermore, no pecuniary or non-pecuniary loss from 2008 to 2010 could be established because even in light of the decision of ZO, Mr Negassi would not have satisfied the new conditions now set out in the Immigration Rules in order to be granted permission to work, namely his employment would not have fallen within the list of shortage occupations published by the UKBA.

Mr Negassi contended that this assertion was wrong and that he suffered “significant disadvantage” because of the impact his inability to work had on both his personal life and his ability to integrate into the community.

The ECtHR found Mr Negassi’s complaint to be inadmissible as per Article 35(3)(b) because it could not be said that the applicant suffered a “significant disadvantage” in the sense that the decision not to grant him permission to work led to serious adverse consequences. Mr Negassi, the Court stated, had not suffered from any actual prejudice. Had the full scope of Article 11 been known to the Secretary of State, the applicant would not have satisfied the criteria now in place under paragraph 360 of the Immigration Rules.

Following this, the ECtHR subsequently found that Mr Negassi’s case had to be declared inadmissible pursuant to Article 35 (3)(b) of the Convention.

Thoughts on the case

This is a very disappointing decision by the ECtHR. To start with, by the time Mr. Negassi commenced his judicial review, and before he received his offer of employment, the Court of Appeal had already ruled (in R (ZO) and MM) that persons in his position ought to be allowed to work in accordance with paragraph 360 of the Immigration Rules. There was no stay on the effect of that decision, and the restriction to ‘shortage occupations’ was only brought in several months later after the concurring judgment of the Supreme Court, so it is hard to see any justification for the argument that the Secretary of State would have changed the Rules earlier if she had appreciated the true position.

More fundamentally, in ordinary claims for damages, it is not a defence to say ‘I would not have acted unlawfully and thereby cost you money if I had properly understood the law’. Damages for breaches of human rights are supposed to be awarded on the ordinary legal principles of the individual member state, so it is difficult to understand why a different standard should apply in this case.

Finally, those who represent asylum seekers and witness the destitution into which they are often forced, and the despair and helplessness that not being able to support themselves or their families through work engenders, will join me in wondering if the ECtHR is really right to suggest that those suffering from an unlawful denial of a right to work for years at a time are not suffering a ‘significant disadvantage’.

James Packer of Duncan Lewis represented Mr. Negassi with the assistance of Richard Wilson QC of 36 Bedford Row leading Declan O’Callaghan of Landmark Chambers.

James Packer, Director in the Duncan Lewis Public Law Department, is described by sources as a "go-to solicitor for the most difficult public law work" and "a walking encyclopaedia." He specialises in judicial review challenges, UK and EU immigration law and human rights cases. - Chambers & Partners 2016 Guide". James is a specialist in all forms of judicial review challenge, costs litigation, immigration, European Union and human rights matters. He has a significant practice challenging unlawful immigration detention cases with high-net claims for damages and immigration removal decisions.

 

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