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ZO (Somalia) and Ors v Secretary of State for the Home Department: DT (Eritrea) (17 May 2010)

Date: 17/05/2010
Duncan Lewis, Public Law Solicitors, ZO (Somalia) and Ors v Secretary of State for the Home Department: DT (Eritrea)

Introduction


It is now generally well known that asylum seekers whose ‘further representations/fresh claims’ have remained outstanding for more than one year have the right to take employment. Currently the law stands in their favour, and applications for relief where the Secretary of State refuses or delays consideration of an application for permission to work are routinely granted following the judgment of the Court of Appeal in ZO (Somalia). This article considers recent developments in the case.

ZO (Somalia) is a case that concerns whether an asylum seeker who makes a second or subsequent claim for asylum, which has been outstanding for more than 12 months and where the delay in considering there case can in no way be attributed to them, should be granted permission to work in the United Kingdom pending the determination of their claim. The case raises questions regarding the construction of the Reception Directive (Council Directive 2003/9/EC) as well as Article 8 of the European Convention of Human Rights. The hearing is listed for 17 and 18 May 2010, however, recent developments in DT’s case have called into question whether DT will be a party to these proceedings and whether the ‘Article 8 argument’ will be heard.

The Secretary of State argues that the 12 months only commences once he has recognised that ‘further representations’ amount to a ‘fresh claim’, even in cases where the ‘further representations’ have been outstanding for years. His position in regards to the Article 8 point is currently obscure (though it is clear that he resists DT’s argument).

Background: Permission to Work - The Arguments


At the time of writing this article, DT is the Third Respondent to the Appellant Secretary of State’s appeal to the Supreme Court of the United Kingdom against the Court of Appeal’s judgment which was handed down in May 2009 - [2009] EWCA Civ 442. DT is one of two Respondents in this case represented by Duncan Lewis and DT’s history in this matter differs from that of our other client, ZO (Somalia).

ZO and MM argued that they were entitled to permission to work under the Reception Directive as Article 11 of the Directive should be read as applying not only to primary asylum seekers, who have never had a decision on their claim, but also those applicants whose initial asylum claim has failed but who later submit representations to the Secretary of State which they assert amount to a fresh claim for asylum, an argument they put forward successfully in the Court of Appeal.

DT’s claim for judicial review of the refusal to grant him permission to work was based on the disproportionate effect that the delay in considering his claim (over 5 years) coupled with the refusal to allow him to take employment, had on his Article 8 private life. His claim for judicial review was allowed by Blake J however the Secretary of State appealed that decision, and DT’s appeal was joined to that of the pending appeals of MM and ZO, as it was appreciated that DT had raised a separate unique ground that applied to the whole question of permission to work for failed asylum seekers awaiting decisions on representations made post the dismissal of their primary asylum claim.

In the Court of Appeal, ZO, MM and DT all adopted the others’ arguments and owing to the success of their argument concerning construction of the Directives, which was heard first, the Court of Appeal considered it unnecessary to go on and consider DT’s Article 8 argument.

Supreme Court of the United Kingdom


In December 2009 the Secretary of State’s petition for leave to appeal to the Supreme Court was allowed and the representatives for the Respondents began their respective preparations for the hearing.

On 22 March 2010, DT’s representatives received notice that the Secretary of State had granted DT Indefinite Leave to Remain (ILR). In relation to the grant of ILR, the Secretary of State advised that DT’s representations, which had been outstanding since May 2004, had progressed naturally through the queue of backlogged cases and a decision fell to be made quite coincidentally at the time when we were preparing to go to the Supreme Court.

Grant of ILR


As a consequence of the Secretary of State’s decision, we became tasked with considering whether it was still practical for DT to continue to participate in these proceedings.

Initially, it was envisaged that DT should continue in view of the wider public interest which would be served by allowing the Article 8 argument to be fully ventilated before the Supreme Court by Counsel for DT (which includes the well-known human rights barrister, Michael Fordham QC as Lead Counsel, as well as Christopher Jacobs as Junior, who had taken the place of our firms own Adam Tear). Such provisions were made should the Court wish to address the Article 8 point, which had not been raised by the Secretary of State in his application to the Supreme Court.

DT no longer had any personal interest in the outcome of the case and the potential negative costs implications that DT risked facing should the Secretary of State’s appeal be upheld, was a further relevant consideration when deciding upon his continued involvement in these proceedings. Ultimately, DT instructed that he did not wish to proceed and the Secretary of State prepared an application to allow for DT to withdraw from the proceedings.

What happened to Article 8?


Following discussions with the LSC and the representatives for MM, it was arranged that Counsel in DT could parachute into the case of MM. This had the result that the preparation undertaken by Counsel in relation to DT could be utilised in the current proceedings without placing an additional burden on the representatives and Counsel for MM and ZO by helping them to avoid having to prepare and argue the Article 8 issue, with less than four weeks to the hearing.

Conclusion


The position remains unclear as to whether the Article 8 argument will be heard by the Supreme Court. The Secretary of State may seek to have the Article 8 issue remitted to the Court of Appeal however the option remains open to the Court to clarify the position now and Counsel are available to assist the Court, should this be required.


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