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Dispatches from the front: the latest developments in permission to work litigation (21 March 2011)

Date: 21/03/2011
Duncan Lewis, Immigration Solicitors, Dispatches from the front: the latest developments in permission to work litigation

By James Packer

Update:
The case of Negassi was heard as a test case on the question of whether the Secretary of State should be liable in damages for unlawfully refusing to grant permission to work to repeat asylum seekers who had not had their claim decided for a year. Following a two-day hearing before Collins J, judgement has been promulgated; though some issues remain to be decided following written submissions.

The decision:

The claim was dismissed on all fronts:

• In relation to the claim for damages for a breach of the Claimant’s rights under Community Law, the Court decided at paragraph 25:

In my view, this is a borderline case. I recognise the force of Mr Wilson's submissions based on the judgment of the Supreme Court. But the hurdle to be overcome by a claimant who seeks damages is a high one. This was an error of construction, not a deliberate intentional breach of the obligations imposed by the Reception Directive. While such an error is capable of being sufficiently serious to found a claim for damages, a court should be slow to support such a claim. The test set out in the authorities and in particular in the BT case is deliberately put at a high level. In all the circumstances, I am persuaded that Mr Eicke's submissions prevail and that, despite the Supreme Court's judgment, the breach was not manifestly and gravely unlawful.

• In relation to the claim for just satisfaction for interference with the Claimant’s right to respect for his private life through the unlawful prohibition on the Clamant taking employment the Court held at paragraphs 39 & 40
If there is no right to work, it is difficult to see how prohibition on working can amount to an interference with private life. In all the cases before the ECtHR which raised the issue, the claimant was a national of the country allegedly in breach and so he had a right to access employment which was interfered with by the prohibition…

It follows that in my judgment Article 8 is not in play and so there was no interference with the right to private life which could amount to a breach of Article 8. But even if it was applicable, I have no doubt that the interference was proportionate as being in accordance with the law and necessary in the interests of the economic well-being of the country and the rights and freedoms of others.


• The Court also considered the question of whether, in the event that either of these decisions was wrong, the Claimant was entitled to damages. It was held that the claim under either head would fail in any event as the Claimant was unable to demonstrate that the breaches caused him any loss. The judgement referred to the fact that since the judgement of the Supreme Court in ZO had made clear that the reception directive, and therefore the right to work, applied to subsequent asylum seekers and went on to hold at paragraph 30

I am satisfied that, had the scope of the Reception Directive been appreciated, restrictions such as those now in force would have applied. Certainly there would have been more extensive restrictions than those in existence before 9 September 2010. Very few applicants, and certainly not the claimant, would be or would have been able to obtain employment. Thus I do not think that a direct causal link is established. Any claim would be speculative to such a degree that it should not be regarded as properly brought.

Appeal

As noted above the Court considered the case ‘borderline’. The judge recognised this and, in a rare move, indicated to the parties at the end of the hearing that he would reserve judgment, but was very likely to grant permission to appeal to the losing party. An update will follow once the finalised judgement has been received and grounds of appeal settled.

Stayed Cases

Although we are likely to seek, and be granted, expedition in the Court of Appeal, the fact is that final resolution is likely to take some time. Those managing cases stayed behind Negassi should consider withdrawing their current applications, if they can do so without prejudicing a later claim if Negassi is successful in the Court of Appeal. I am happy to advise in individual cases as to the correct course of action.


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