This article was originally published in February 2010
Part I
There are thousands of foreign nationals in the United Kingdom anxious to take employment if given the opportunity to work, and many employers would welcome the skills and work ethic that they can bring to the workplace. This issue has recently been explored in the BBC programme 'The Day the Immigrants left', which has excited much comment for suggesting that there are many low-skilled jobs in the UK that will locals will simply refuse to take, even if the alternative is unemployment. Employers are generally familiar, at least in outline, with the requirements of the Immigration Rules that apply to those that come to the United Kingdom to seek permission to work. In this series of articles we explore the position of those who may have the right to work in the United Kingdom, despite not entering for that purpose.
Asylum seekers
The position with regard to asylum seekers in the United Kingdom has tightened in recent years, with rights to take up employment being reduced. However the issue has moved on to a more stable position following the implementation of the Reception Directive: 2003/9/EC entitling asylum claimants who have been waiting for over a year for a decision on their claim to take employment.1 This directive has been implemented into law in the United Kingdom through Immigration Rule 3602. It should be noted that it is necessary to both request and receive a grant of permission to work before an applicant can lawfully enter employment.
One point that can lead to a refusal of the application is if the Secretary of State holds the applicant responsible for delay. The 'delay' referred to is a delay in the consideration of the claim; there is no requirement that the asylum seeker should seek permission to work promptly once eligible to do so. Likewise, it appears that the Secretary of State accepts that the 'final determination' of an asylum application is not to be equated to a 'negative decision' on the asylum application itself and that the application remains outstanding during the appeal process (discounting out-of time appeals); the distinction between the reference to 'appeal procedures' in the directive and an 'asylum application' in the Immigration Rules had given rise to fears that litigation would be required to hold the Secretary of State to the terms of the Directive.
Who exactly is an 'asylum seeker'?
The above may give the impression that anyone who has sought asylum in the United Kingdom, and meets the criteria described above will be granted permission to work. Sadly in the vexed field of immigration law matters are rarely entirely simple and straightforward.
Whilst it is true that for initial asylum applicants in these circumstances grants of permission to work where the conditions are met are normally provided without too much fuss, subsequent asylum applicants are, at present, in limbo when it comes to permission to work regardless of the fact that the law has been decided in their favour.
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 (i.e. often for years) and only if they satisfy various tests can they then be considered an asylum claim. This system was in place before the Directives came into force; unsurprisingly it was then subject to challenge. The initial challenge was by way of a successful judicial review. The Secretary of State appealed that decision.
The law as it currently stands is governed by the Court of Appeal's judgment of ZO (Somalia) & Ors v Secretary of State for the Home Department [2009] EWCA Civ 442.
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?" (paragraph 1 of the Judgment). 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. So for once all is clear and simple in immigration law? A trick question obviously.
The Secretary of State has sought and been granted permission to appeal the Court of Appeal judgment to the Supreme Court. Generally speaking it is trite law that the law as it is stated by a Court of Record is the law at that time, and can be enforced notwithstanding any continuing appeal. Thus, when seeking permission to appeal a judgment below, it is necessary to seek a stay of execution of that judgment if one is required. This can lead to strange situations after a successful appeal to a superior court in which we 'discover' that the law has all along been otherwise than previously stated.
In a stance diametrically opposed to the position he took in the Nasseri3 litigation the Secretary of State relies upon the grant of permission (and relied beforehand upon the mere seeking of permission) from the Supreme Court to refuse to consider applications for permission to work from subsequent asylum seekers4 even though he did not so much as apply for a stay on implementation of the judgment.
As a result, the Secretary of State's actions (or inaction), has led to a whole plethora of litigation being brought against him, either in relation to the lack of a decision in a permission to work application or an outright refusal to grant repeat asylum seekers permission to work. This type of case is now plentiful in the Administrative Court and we at Duncan Lewis currently have numerous applications lodged.
The applications for judicial review themselves are now all stayed (some pre and some post the grant of permission) awaiting the judgment of the Supreme Court. The situation will hopefully be resolved once this is heard in May 2010, though a reference to the European Court of Justice remains a possibility, as the argument turns 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; the Secretary of State contends that they do not. That is a good pointer to the difficulties the Secretary of State has had in defending his position, but there are subtleties to the argument, it does turn on the construction of EU law, and unless a Untied Kingdom Court is clear beyond doubt (the 'acte claire' doctrine) it is under a duty to refer the question of interpretation to the European Court of Justice.
In order to protect claimants in this position, it is usually necessary to make an application for interim relief. This is considered further in the next article.
How long does the right to work endure?
The inelegant wording of the directive - a frequent feature of legislation that has to be applied across multiple jurisdictions – throws some doubt on the ambit of the continuing right to work. When exactly is a time that 'a negative decision on the appeal is notified'? (see footnote 1) Is it at the final (negative) determination of an appeal in a tribunal or is it, if that decision is itself appealed, the final determination of the appeal itself by the Court of Appeal or even the Supreme Court?
What is clear is that under the previous appeal arrangements even a first, negative determination does not qualify. The unicameral nature of the Asylum and Immigration Tribunal had the effect that a reconsidered appeal is the first determination/ 'negative decision'.
(Duncan Lewis recently made a successful challenge to a refusal on this basis in the case of an asylum seeker whose application for asylum had (just) taken more than a year to decide, whose appeal was dismissed in a determination later accepted to contain errors of law, and the reconsideration of the appeal was still pending well over six months later).
However, the recent transition of the functions of the Asylum and Immigration Appeal Tribunal to the Immigration and Asylum Chamber of the First Tier Tribunal (which has onward rights of appeal to the Upper Tribunal) throws this minor certainty into doubt. The better view is probably that the right to work is retained whilst the appeal is 'live' but the actions of the Secretary of State appear increasingly desperate and he may well grasp at this legal straw too.
As ever in immigration law – watch this space!
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. 360. An asylum applicant may apply to the Secretary of State for permission to take up employment...if a decision at first instance has not been taken on the applicant's asylum application within one year of the date on which it was recorded. The Secretary of State shall only consider such an application of, in his opinion, any delay in reaching a decision at first instance cannot be attributed to the applicant.
360A. If an asylum applicant is granted permission to take up employment under Rule 360 this shall only be until such time as his asylum application has been finally determined".
3. [2008] EWCA Civ 464 - challenges to the removals of asylum seekers to Greece and Italy without any substantive consideration of their claim under the Dublin convention
4. On the basis that he was only required by the Directive to 'consider the conditions' of such access to the employment market, and would not begin to do so until the law was clear!
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