UK: Permission to Work – An Update

Last Updated: 18 August 2010
Article by James Packer

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

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.