Bad reception

Lawyers who regularly deal with government will be accustomed to feeling restrained by an abundance of policy, much of which seems absurd to anyone with a sense of justice.

Unfortunately, many of these policies do not stray into the realms of irrationality or unlawfulness, and leave little room for challenge. Even where they do cross this line, policy challenges are notoriously difficult. Apart from facing drastic funding cuts and other obstacles presented by the current economic climate, a defendant's reluctance to air policy issues before the courts can prompt countless obstacles intended to prevent proper scrutiny of the offending article. Cases such as ZO [2010] UKSC 36, however, prove that when these issues do reach the courtroom, the process of judicial review can provide an effective remedy against unlawful government practice.

But, as our clients are toasting ZO and looking towards a brighter future, rumblings in Whitehall suggest that the struggle for the rights guaranteed by ZO is not over. New policies may be introduced and new challenges may prove necessary.

In limbo

ZO was a lone, vulnerable, young single female who had suffered terrible treatment in her home country of Somalia. Refused asylum on an initial application, she submitted a second claim based on previously unavailable evidence. This claim, once considered, was highly likely to result in a grant of leave to remain in the UK.

Her claim was placed in a programme referred to by the UKBA as the 'legacy' '“ an attempt to clear their backlog of around 500,000 cases, some dating back more than ten years. Announced in July 2006, the legacy was intended to clear this backlog by mid 2011.

Meanwhile, ZO was left in limbo: prohibited from taking employment, she was reliant upon 'hard case' support, a meagre stipend of food vouchers and hostel accommodation, widely viewed as unsuitable for vulnerable individuals.

ZO was one of thousands of foreign nationals in the UK keen to take employment. This issue was recently explored in the BBC programme The Day the Immigrants Left, which may help address a problem where there are many low-skilled jobs in the UK that locals refuse to take, even if the alternative is unemployment.

The reception directive

The trend in the UK has been to reduce rights of asylum seekers to take up employment. However, Council Directive 2003/9/EC, the 'reception directive', effectively entitled asylum claimants who had been waiting for over a year for a decision to take employment. The directive lays down minimum standards for the reception of asylum seekers. Permission to take employment is one of these keys rights. Other rights include preservation of family unity, access to education for minors, access to vocational training, access to emergency health care and essential treatment of illness.

Article 11 of the directive, which confers the entitlement to employment, has been implemented into UK law through paragraph 360 of the Immigration Rules in relation to first-time asylum applicants only. Despite a ten-year campaign for change by refugee welfare groups, the UKBA has refused the right to work to individuals whose initial claim had been refused and who were awaiting a decision on a subsequent claim.

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 and only if they satisfy various tests can they then be considered an asylum claim. Only once a claim had been recognised by the secretary of state as an 'asylum claim' did he consider it to be caught by the reception directive.

ZO's journey

Having been refused asylum on initial claim, ZO made a subsequent claim based on findings in a new country guidance case (NM and others (Lone Women '“ Ashraf) (Somalia) CG [2005] UKIAT 00076). This subsequent claim was strong, likely to succeed and certainly capable of satisfying the test for a 'fresh asylum claim' as laid out in paragraph 353 of the Immigration Rules. ZO filed her subsequent claim and, having waited nearly two years for a decision, filed an application for judicial review challenging the delay in decision making.

Permission was initially granted on that claim, but, following judgment in FH and Ors [2007] EWHC 1571 (Admin), which ruled out challenges to delay in cases which had been placed in the legacy save for in exceptional circumstances, the claim was rendered unarguable. ZO then sought permission to work pending a decision on the subsequent asylum claim. The secretary of state then refused to grant permission to work on the basis that the reception directive did not apply. Given that previously challenges for delay were possible, this was the first case of which we are aware in which a challenge to the refusal to grant permission to work became the only viable option. Permission to amend ZO's judicial review claim to challenge that decision was sought.

The issues in this case were simple. Does the term 'application for asylum' only refer to an initial application, or does it also catch a subsequent application? We argued that the term applies to any 'application for asylum'. The secretary of state disagreed, arguing that the directive provided for 'reception' conditions '“ i.e. the conditions provided on an initial encounter between the asylum seeker and the receiving state '“ that a different meaning in subsequent directives could not be retrospectively adopted, and that should ZO's interpretation be favoured this would leave the system open to abuse.

The claim went on to have a long and complex history. Permission to amend was granted, the previous grant of permission was set aside, but permission to proceed was refused. Permission to apply to the Court of Appeal was granted, and, later, by consent, the Court of Appeal granted permission to apply for judicial review. The substantive application was then considered by the Administrative Court, which dismissed the claim. Permission to appeal was again granted.

The claim was then joined with two others (DT and MM) which raised similar issues, each adopting the others' arguments in full. At the Court of Appeal, the claim included issues surrounding the interpretation of the reception directive and issues involving article 8 ECHR. The article 8 issue '“ that the policy of denial of access to the labour market constituted a breach of the convention '“ was, in fact, raised here on appeal by the secretary of state, the issue having been successfully argued by Duncan Lewis in the case of DT in the Administrative Court.

The court considered the question: 'Does a person whose asylum claim has been finally determined in 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?' The court held unanimously that for these purposes an 'initial claim' and a 'subsequent claim' were indistinguishable and dismissed the appeal from the High Court. Given this finding, the court felt it unnecessary to go on to consider the secretary of state's appeal on article 8.

The secretary of state, perhaps predictably, petitioned the Supreme Court. Presumably, given the apparent simplicity of the issues, the Supreme Court granted permission on the basis of the wider public significance of this case.

For ZO, and many others awaiting the outcome of her case, it meant that uncertainty remained. As the argument before the court turned upon a question of construction of EU law, a reference to the European Court of Justice (ECJ) was a real possibility. Unless a UK court is clear beyond doubt (the acte claire doctrine) as to the construction of EU law it is under a duty to refer the question of interpretation to the ECJ. Such a reference would inevitably lead to yet more delays.

Where are we now?

The Supreme Court upheld the Court of Appeal's decision. It confirmed that proper interpretation of the directive would embrace subsequent claims, that there was no need for referral to the ECJ, and that there is already adequate protection in place for the potential 'abuse' which the secretary of state argued could result from such an interpretation.

The rights conferred by the reception directive are now guaranteed to individuals such as ZO, estimated at 45,000 people in the UK alone. There are many other people in other EU states caught by the directive.

Given judgments of the Supreme Court are held in high regard by judicial systems in other member states and by the ECJ, it is hoped those states will take note of this case and ensure these rights are afforded uniformly across their jurisdictions.

During the course of ZO's case, a significant volume of litigation has built up in the Administrative Court. Individuals who had been refused permission to take employment have been filing claims for judicial review. Where such claims have not been otherwise disposed of, they remain stayed. These cases will finally and justly be disposed of, and the right to work afforded to many talented and motivated individuals. These people will no longer be dependant upon the state for support; instead they will be contributing members of our society '“ which is better for both them and the communities in which they live.

Generally 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. Interestingly, the secretary of state failed to seek a stay of execution of the Court of Appeal's judgment. However, once he petitioned the Supreme Court, the UKBA continued to refuse interim relief, in the form of permission to take employment, on the basis that ZO was being appealed to the Supreme Court. Not only is this somewhat abusive, it is diametrically opposed to the position he took in the Nasseri litigation. Here, in connection with challenges to the removal of asylum seekers to Greece under the Dublin Convention on the basis that removal would breach their rights under article 3 ECHR, he refused to stay removals despite a grant of permission and a stay on removal having been obtained by the claimant. This does not inspire confidence that the secretary of state has proper regard for procedure and fairness, even when conducting litigation which raises significant issues of human rights.

The effect of the secretary of state's stance is that individuals such as ZO were denied what was due to them for far longer than was just. This is likely to be reflected in claims for damages against the secretary of state '“ where he unlawfully denied people permission to work. As to the impact of ZO, it is early days.

The government is already talking of steps to restrict the rights guaranteed by the reception directive. The day after judgment in ZO, Damian Green, the immigration minister, announced plans to bar individuals such as ZO from applying for some 28.5 million jobs, restricting the market to which they will have access to a mere 400,000 skilled jobs.

According to The Guardian, these individuals 'would have to be qualified maths teachers, chemical engineers, high-integrity pipe welders or even experienced orchestral musicians or ballet dancers to have any hope of being allowed to work'.

Despite the risk of government disapproval, the Supreme Court has acted with considerable integrity in this case. We will keep a close eye on developments; if the government attempts to implement polices which restrict the rights of individuals in ways not lawfully open to them, we will find ourselves back in court on an issue which we hoped had been finally laid to rest.