R (Negassi and Another) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Rimer,Sir Stanley Burnton |
| Judgment Date | 07 March 2013 |
| Neutral Citation | [2013] EWCA Civ 151 |
| Docket Number | Case No: C4/2011/1021 + C4/2011/2384 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2013 |
[2013] EWCA Civ 151
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, (COLLINS J) and (DAVIES HHJ)
Ref: CO1/4611/2009 and CO1/2585/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Rimer
and
Sir Stanley Burnton
Case No: C4/2011/1021 + C4/2011/2384
Mr Richard Wilson QC and Mr Declan O'Callaghan (instructed by Duncan Lewis Solicitors) for the Appellant Mr Negassi
Mr Richard Drabble QC and Mr Paul Draycott (instructed by Paragon Law) for the Appellant Mr Lutalo
Mr Tim Eicke QC and Mr Robert Palmer (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 6, 7 December 2012
It is well-known that asylum applications, even when made promptly on arrival in this country, can take months or even years before final determination through the decision-making and appellate process. This causes familiar problems. Applicants require support and accommodation for substantial periods of time. When the time is particularly prolonged, features of private and family life may develop which themselves have to be considered as aspects of the applicant's legal position. During the significant period of time when an applicant cannot be removed from the country, the question arises as to whether he should be permitted to take employment here. Different policy issues are in play. On the one hand, if he is permitted to work, the burden on the public finances will be relieved and he will have a more normal existence. On the other hand, British nationals and others with a right to seek employment here, including citizens of the European Union, will face increased competition for scarce jobs. Until recently, this aspect of asylum was largely a matter of domestic law, including any entitlement arising from the Human Rights Act 1998. However, the law now has a specific EU dimension.
Council Directive 2003/9/EC lays down minimum standards for the reception of asylum seekers and is commonly known as "the Reception Directive". Access to the labour market by applicants for asylum is addressed in Article 11 which provides:
"1. Member States shall determine a period of time, starting from the date on which an application was lodged, during which an applicant shall not have access to the labour market.
2. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and that delay cannot be attributed to the applicant, Member States shall decide 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 a 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 policies, Member States may give priority to EU citizens and nationals of States parties to the Agreement on the European Economic Area and also to legally resident third-country nationals."
Article 11 prompted an amendment to the Immigration Rules. Rule 360 provides:
"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 if, in the Secretary of State's opinion, any delay in reaching a decision at first instance cannot be attributed to the applicant."
It is common ground that the words "at first instance" in Article 11 and Rule 360 apply to the decision made by or on behalf of the Secretary of State and not to a decision of the First-tier Tribunal.
Initially, the Secretary of State took the view that Article 11 and, therefore, Rule 360 only applied to an initial application for asylum and that it had no relevance to a later "fresh claim" made by reference to Rule 353. However, in ZO v Secretary of State for the Home Department [2010] 1 WLR 1948, the Supreme Court held this view to be erroneous. A fresh claim is "an application for asylum" within the meaning of Article 11 and therefore attracts its protections, whatever, as a matter of construction, they may be.
The present cases
These two cases were heard separately in the Administrative Court. Although the appeals have been heard together, the cases are by no means identical.
(1) Negassi
Mr Negassi is an Eritrean national who arrived in the United Kingdom and claimed asylum in September 2005. The application was refused by the Secretary of State and an appeal to the Immigration Appeal Tribunal was finally determined against Mr Negassi in March 2006. In July 2006 further representations were made on his behalf but before they were considered he moved to Ireland where he made another application for asylum which resulted in his return to this country pursuant to the Dublin Convention. His solicitor then made further representations, purporting to be a fresh claim, to the Secretary of State on 12 December 2007. No response was forthcoming and on 11 October 2008, Mr Negassi applied for permission to work (PTW). No reference was made to Article 11 at this point. ZO had not yet been decided. The Secretary of State refused PTW on 21 October 2008 on the basis that appeal rights had been exhausted. On 7 September 2009 Mr Negassi made a further application for PTW, citing Article 11. In due course he made the application for judicial review which is the subject of his present appeal. The centrepiece of his case is a claim for damages on the Francovich basis, relying on the Secretary of State's erroneous approach to the transposition of Article 11, as now identified in ZO. He also claims that the refusal of PTW violated his rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). His application for judicial review was refused by Collins J on 4 March 2011: [2011] EWHC 386 (Admin).
(2) Lutalo
Mr Lutalo is a national of Uganda. He entered the United Kingdom on a six month visitor's visa in May 2004 but overstayed. In 2007, he was convicted and sentenced to nine months imprisonment for possession of a false passport. He was subsequently notified of liability to deportation. On 11 June 2009 he applied for asylum. The application was promptly refused by the Secretary of State and appeals to the First-tier and Upper Tribunals were dismissed. However, an appeal to this Court was successful and the case was remitted to the Upper Tribunal for rehearing. On 5 January 2012 the Upper Tribunal allowed his appeal and he now has refugee status. In the meantime, on 7 July 2010 Mr Lutalo made an application for PTW. This was refused by the Secretary of State on 23 July 2010 and again on 6 September 2010. An application for judicial review of these decisions by reference to Article 11 of the Reception Directive and Article 8 of the ECHR was refused by His Honour Judge Stephen Davies sitting as a Deputy High Court Judge on 26 July 2011: [2011] EWHC 2042 (Admin).
Although these two appeals are both concerned with the issue of PTW and both raise issues under Article 11 of the Reception Directive and Article 8 of the ECHR, the similarities are superficial. Mr Negassi's case on Article 11 is based on the acknowledged failure to extend Article 11.2 to fresh claims and requires consideration of the Francovich principle in the context of the deficient transposition identified in ZO. Mr Lutalo's case on Article 11 seeks to draw on Article 11.1. The respective cases on Article 8 raise some points of similarity but call for the individual consideration which Article 8 generally requires.
Negassi: the Francovich claim
The case for Mr Negassi is that he is entitled to Francovich damages on one of two bases – either they flow without more from a serious breach of an obligation arising under EU law or, applying a multifactorial test, the entitlement arises in the circumstances of this case. In Francovich v Italy [1991] ECR 1-5357, [1993] 2 CMLR 66 the European Court of Justice (ECJ) prescribed three conditions for the entitlement to damages for breach by a Member State of the Treaty obligation to implement a Directive within the stipulated time:
"39. … the full effectiveness of that rule of Community law requires that there should be a right to reparation provided that three conditions are fulfilled.
40. The first … is that the result prescribed by the Directive should entail the grant of rights to individuals. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the Directive. Finally, the third condition is the existence of a causal link between the breach of the state's obligation and the loss and damage suffered by the injured parties."
These principles have been considered in numerous cases in the last twenty years.
(1) Automatic entitlement ?
The submission on behalf of Mr Negassi to the effect that he has an automatic entitlement to reparation is said to be founded on a line of authority beginning with R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas Ltd [1997] QB 139, in which the ECJ said:
"25. In the case of a breach of Community law attributable to a Member State acting in a field in which it has a wide discretion to make legislative choices the Court has held … that such a right to...
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