As flagged in our earlier article the right to work for those who have made a repeat claim for asylum has now been settled by the Supreme Court, in the case of ZO and others v Secretary of State for the Home Department [2010] UKSC 36. The three linked cases were all the subject of appeals from the Court of Appeal. Duncan Lewis represented two of the respondents.
There were three principal questions in the Supreme Court: (1) Does Article 11 of the Reception Directive 2003/9/EC1 apply to a claimant, who has already had an application for asylum finally determined against him but later makes a further application for asylum? (2) Should the matter be referred to the European Court of Justice for a definitive ruling on the meaning of the terms in the directives?2, and (3) was Blake J in DT [2008] EWHC 3064 (Admin) (sometimes cited to as DT (Eritrea)) correct to hold that even if article 11 does not apply, it breaches an applicant's rights under article 8 ECHR to refuse his application for permission to work where there has been a lengthy delay in considering his claim, if it has the effect of depriving the applicant of any means of support whilst the application is pending3?
The application of article 11 of the Reception Directive
The Secretary of State accepted that if the definition of an asylum seeker in the Procedures Directive 2005/85/EC applied to the Reception Directive, then article 11 would apply to further applications. However, she pointed out that the definition of the term in the Reception Directive, which came into force in early 2005, was unclear whilst the Procedures Directive was not adopted until later that year. She made the superficially attractive point that the definition of a legislative term should not be sought in later legislation – and pointed to a number of minor anomalies that would arise if the definition was the same in both Directives.
Lord Kerr, giving the judgment of the Court dealt with this at paragraph 27 of his judgment:
'While Mr. Tam may be right that, as a matter of general principle, later legislation should not operate to change the established meaning of an earlier enactment, the manner in which the later legislation is framed may provide an insight into the proper interpretation of the earlier instrument. Whatever may be said on this matter on a theoretical basis, however, the matter is put beyond any doubt by an examination of the legislative history of the two measures.'
His Lordship then pointed out that both directives had substantial parts of their gestation which stretched back to 2000 in common and that it was clear that they were both a part of a suite of legislative measures intended to run harmoniously together. The original proposal for the Reception Directive had even contained a definition of 'asylum seeker' essentially identical to that in the Procedures Directive. He also considered the clamed anomalies variously non-existent or minimal and unimportant, and pointed out that greater anomalies would exist if the terms were given differing meanings in the two directives. In the absence of clear words intending the same terms to have differing effect in the two directives his Lordship at paragraph 30 concluded that:
'... it is indisputably clear that it has always been intended not only that the definitions of applicant for asylum in both directives should be congruent with one another but also that an application should not be regarded as having been subject to a final decision until all remedies had been pursued and determined. This can only mean that subsequent applications would fall within the purview of the definitions of 'application for asylum' and 'asylum seeker' in the Reception Directive.'
In this passage his Lordship not only disposed of the first of the two questions for the Court, but has also clarified that all those entitled to work under article 11 retain that right until the final determination of any appeal against a negative decision. (Our previous article had noted that there was doubt as to the extension of the right to work beyond the first unsuccessful appeal, where a further appeal was made to a superior court).
Developments post ZO
As the Secretary of State has adopted an obstructive approach to those seeking to rely on their rights under article 11 thus far, even refusing to grant permission to work after the judgment of the Court of Appeal in defiance of established legal principles4, it is perhaps unsurprising that her response to the judgment was to state that
The government is currently considering the detail of the judgment and an announcement setting out how the government intends to change current rules will be made as soon as possible.
Article 11(2) of the Reception Conditions Directive enables Member States to impose conditions on access to the labour market, and this announcement will include details of the restrictions on permission to work which will be applied.
The UK Border Agency is aware that there are significant numbers of failed asylum seekers who may consider themselves entitled to apply for permission to work in light of the judgment. In order to ensure good administration of those applications, fair processes and the effective implementation of the judgment, we will not process any permission to work applications from failed asylum seekers whose further submissions have been outstanding for more than 12 months until that announcement.5
One might have thought that the minimum that 'good administration of those applications' would require would be that the Secretary of State had a policy in place for immediate implementation should her appeal fail. Anyone who falls within article 11 who wishes to work should now request permission to work. It is unlikely that a delay in granting permission for the reason given above would be lawful, and advice should be swiftly sought with a view to bringing a claim for judicial review, including damages for the period of delay in processing the application.
Article 8 and the denial of permission to work
Having determined the issues with respect to the Directive so decisively in favour of the respondents the Court considered that there was no need to consider the third question: the position with regard to article 8. This is perhaps a pity, as the reasoning in that line of authority applies to an applicant for any form of leave, not just to those seeking asylum. The practical effect however is that the reasoning of Blake J remains undisturbed, and anyone adversely affected by a lengthy delay in considering their claim who wishes to work in the interim should seek urgent advice, as a refusal of a request for permission to work may breach their article 8 rights.
Given that the Secretary of State has twice tried to appeal that decision, only to be dismissed on other grounds without consideration of this issue on both occasions, she is unlikely to leave the matter there, and the question is likely to arise in the Court of Appeal before too long.
Footnotes
1. Article 11 (1)...
(2) if a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the Applicant, Member States shall decides the conditions for granting access to the labour market for the Applicant.
(3) Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against the negative decision in a regular procedure has suspensive effect, until such time as a negative decision on the appeal is notified.
(4)For reasons of labour market polices, Member States make a priority to EU citizens and national and states parties to the Agreement on the European Economic Area and also to legally resident third-country nationals.
2. The Court, if deciding a case (such as the one under discussion) which turns on the interpretation of a term or principle of European law, is required to refer the question to the ECJ for a ruling on its meaning unless the interpretation is abundantly clear.
3. In DT (Eitrea) . DT, represented by Duncan Lewis was the third respondent, but the Secretary of State withdrew her appeal in respect of DT for reasons unrelated to the legal issues. In the event this did not affect the course of the appeal.
4. See our previous article for details
5. http://www.bia.homeoffice.gov.uk/sitecontent/newsarticles/2010/july/55-supreme-court-judgement
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