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In limbo, with no end in sight - Naim Rahman comments on the recent case law entitling 45,000 people the right to work (5 August 2010)

Date: 05/08/2010
Duncan Lewis, Main Solicitors, In limbo, with no end in sight - Naim Rahman comments on the recent case law entitling 45,000 people the right to work

‘ZO’ was a lone, vulnerable, young single female who had suffered truly terrible treatment in her home country of Somalia. Refused asylum on an initial application, she submitted a second claim based on previously unavailable evidence. This claim, once considered, was highly likely to result in a grant of leave to remain in the UK.

Her claim was placed in a programme referred to by the UKBA as the ‘Legacy’ – an attempt to clear their backlog of around 500,000 cases, some dating back more than 10 years. Announced in July 2006, the legacy was intended to clear this backlog by mid 2011.

In the meantime ZO was left in limbo: prohibited from taking employment, she was reliant upon ‘hard case’ support, a meagre stipend of food vouchers and hostel accommodation, widely viewed as unsuitable for vulnerable individuals.

ZO was one of thousands of foreign nationals in the United Kingdom keen to take employment. As recently explored in the BBC programme "The Day the Immigrants Left", this may help address a problem where there are many low-skilled jobs in the UK that locals will refuse to take, even if the alternative is unemployment.

The position prior to ZO


The trend in the UK has been to reduce rights of asylum seekers to take up employment. However, Council Directive 2003/9/EC, the ‘Reception Directive’, effectively entitled asylum claimants who had been waiting for over a year for a decision to take employment. The Directive lays down minimum standards for the reception of asylum seekers. Permission to take employment is one of these keys rights. Other rights include preservation of family unity, access to education for minors, access to vocational training, access to emergency health care and essential treatment of illness.

Article 11 of the Directive, which confers the entitlement to employment, has been implemented into UK law through Paragraph 360 of the Immigration Rules. For asylum seekers making a first application for asylum, grants of permission to work are normally provided without too much fuss. However, despite a 10 year campaign for change by Refugee welfare groups, the UKBA has refused the right to work to individuals whose initial claim had been refused and who were awaiting a decision on a subsequent claim.

The somewhat Orwellian stance of the Secretary of State has been that an asylum claim is not an asylum claim if it is made by a person who has already made a claim that was rejected. Rather the "asylum claim" is in fact "further representations against removal" (and therefore gives no right to work). The "further representations" remain as such until they are considered by the Secretary of State and only if they satisfy various tests can they then be considered an asylum claim. Only once a claim had been recognised by the Secretary of State as an "asylum claim" did he consider it to be caught by the Reception Directive.

ZO’s journey


Having been refused asylum on initial claim, ZO made a subsequent claim based on findings in new country guidance case (NM and others (Lone Women – Ashraf) (Somalia) CG [2005] UKIAT 00076). This subsequent claim was a strong claim, likely to succeed and certainly capable of satisfying the test for a "fresh asylum claim" as laid out in Paragraph 353 of the Immigration Rules. ZO filed her subsequent claim and, having waited nearly two years for a decision, filed an application for Judicial Review challenging the delay in decision making.

Permission was initially granted on that claim - but following judgment in FH and Ors [2007] EWHC 1571 (Admin), which ruled out challenges to delay in cases which had been placed in the Legacy save for in exceptional circumstances, the claim was rendered unarguable. ZO then sought permission to work pending a decision on the subsequent asylum claim. The Secretary of State then refused to grant permission to work on the basis that the Reception Directive did not apply. Given that previously challenges for delay were possible, this was the first case of which we are aware in which a challenge to the refusal to grant permission to work became the only viable option. Permission to amend ZO’s Judicial Review claim to challenge that decision was sought.

The claim went on to have a long and complex history. Permission to amend was granted, the previous grant of permission was set aside, but permission to proceed was refused. Permission to apply to the Court of Appeal was granted, and later, by consent, the Court of Appeal granted permission to apply for Judicial Review. The substantive application was then considered by the Administrative Court, who dismissed the claim. Permission to appeal was again granted. The claim was then joined with two others (DT, and MM) which raised similar issues, each adopting the others’ arguments in full. At the Court of Appeal, the claim included issues surrounding the interpretation of the Reception Directive and under Article 8 ECHR. The Article 8 issue – that the policy of denial of access to the labour market constituted a breach of the Convention – was, in fact, raised on appeal by the Secretary of State, the issue having been successfully argued by Duncan Lewis in the case of DT in the Administrative Court.

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?". The Court of Appeal held unanimously that for these purposes an "initial claim" and a "subsequent claim" were indistinguishable and dismissed the appeal from the High Court. Given this finding, the Court felt it unnecessary to go on to consider the Secretary of State’s appeal on Article 8.

The Secretary of State petitioned the Supreme Court. Presumably, given the apparent simplicity of the issues, the Supreme Court granted permission on the basis of the wider public importance of this matter.
However, for ZO, and many others awaiting the outcome of her case, it meant that uncertainty remained. The argument before the Court turned 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, a reference to the European Court of Justice would not have been surprising. Unless a Untied Kingdom Court is clear beyond doubt (the "acte claire" doctrine) as to the construction of EU law it is under a duty to refer the question of interpretation to the European Court of Justice.

Where are we now?


Last week the Supreme Court upheld the Court of Appeal’s decision. They confirmed that proper interpretation of the Directive would embrace subsequent claims, that there was no need for referral to the European Court of Justice, and that there is already adequate protection in place for the potential ‘abuse’ which the Secretary of State argued could result from such an interpretation.

The rights conferred by the Reception Directive are now guaranteed to individuals such as ZO, estimated at 45,000 people in the UK alone. There are many other people in other EU States caught by the Directive. Given Judgments of the Supreme Court are held in high regard by Judicial Systems in other Member States and by the European Court of Justice it is hoped those States will take note of this case and ensure these rights are afforded uniformly across their jurisdictions.

During the course of ZO’s case a significant volume of litigation has built up in the Administrative Court. Individuals who had been refused permission to take employment have been filing claims for Judicial Review. Where such claims have not been otherwise

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