Public Law Solicitors

by Kat Hacker

When the Supreme Court heard the lead case of ZO (Somalia) & Ors v SSHD [2010] UKSC 36 in May this year, lawyers around the country waited with bated breath for the judgment to finally confirm what they had spent the last year advocating – that the term “asylum applicant” as defined by Article 11 of the Reception Directive 2003/9/EC was envisaged to incorporate the term “subsequent asylum seekers” and in accordance with Article 11 they were entitled to permission to work. So when judgment was handed down on 28 July 2010, we at Duncan Lewis, considered our work done: that our clients with outstanding requests for permission to work and those with pending Judicial Review claims stayed behind ZO, would be granted permission to work and costs in these claims would be awarded in our favour given that the Claimants’ substantive case has proved good.

Frustratingly, this was not the case. The Secretary of State has sought further to circumvent the judgment of the Supreme Court, as they did with the Court of Appeal, and have sought to delay the implementation of this judgment in order to consider what conditions, as allowed by Article 11(2), they will implement and attach to grants of permission to work to subsequent asylum seekers. Notwithstanding the fact that over a year had passed since the judgment in the Court of Appeal was handed down, one would consider that perhaps the Secretary of State would seek at the very least to have a contingency plan at hand should their argument fail to succeed at the Supreme Court. Instead she requested further time to be allowed to considered conditions, and notably restrictions, to implement accordingly. Thereafter once those conditions were decided, a further 21 days were requested before the conditions were to be implemented.

The conditions that have now been decided, and soon to be implemented on the 9 September 2010, are for want of another word, outrageous. It has been decided that permission to work will now only be granted to asylum seekers, this definition including first time and subsequent asylum seekers, if they can demonstrate that they have an offer of employment under one of the occupations covered by the National Shortage Occupation List. It appears that the Secretary of State is equating asylum seekers with economic migrants, and it should be considered that if the said asylum seeker could gain employment under Tier Two – they would not necessarily be claiming asylum. Furthermore, these somewhat unreasonable conditions would impose on asylum seekers an added burden of ensuring that they leave their country of origin, whilst fleeing persuasion, with their certificates or evidence of their qualifications in order to ensure that they will be able to obtain permission to work in 12 months time should their asylum claim still be pending. It seems that little regard has been given to the circumstances under which someone fleeing persecution would leave their country. Once again, asylum seekers one of the most vulnerable groups in society are further disadvantaged by the Secretary of State’s unjust, unreasonable and recalcitrant behaviour.

The result is that further public funds, time and effort have been required and Duncan Lewis have lodged an urgent application in which we requested urgent consideration of applications for interim relief for applicants who are awaiting permission to work and have outstanding claims pending, in order that their grants of permission will not be subject to those conditions due to be implemented on the 9 September. A hearing is now listed for the 9 September.

It remains to be seen whether the Courts will grant a mandatory order that our Claimants be granted permission to work under the conditions currently in place, as their requests for permission to work were submitted some time before the 9 September 2010. For the time being the Claimants as before remain in purgatory – waiting for the time when they will be granted permission to work, and if so whether that permission will have the exceptionally restrictive conditions attached.

A challenge to the legality of these conditions is in the offing, but will have to wait for another day.


Article Update
Following the publication of this Article on the case of Manasyan & Others, the hearing did not take place on the 9 September as the Secretary of State had granted the relief required to all of the Claimants listed within the Manasyan lead case, prior to the hearing.

This is commonly the tactic of the Sectary of State to grant the relief prior to the hearing, as it avoids any official judgment being made which could be used against them in future.