R (ZO (Somalia)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD KERR |
| Judgment Date | 28 July 2010 |
| Neutral Citation | [2010] UKSC 36 |
| Date | 28 July 2010 |
| Court | Supreme Court |
[2010] UKSC 36
Lord Hope, Deputy President
Lord Walker
Lord Brown
Lord Kerr
Sir John Dyson SCJ
(on the application of ZO (Somalia) and others)
Appellant
Robin Tam QC
Daniel Beard
(Instructed by Treasury Solicitor)
Respondent (ZO)
Richard Wilson QC
Philip Nathan
(Instructed by Duncan Lewis & Co Solicitors)
Respondent (MM)
Michael Fordham QC
Christopher Jacobs
(Instructed by Scudamores Solicitors)
LORD KERR (delivering the judgment of the court)
Recitals 4, 5 and 7, taken together with Article 1, of Council Directive 2003/9/EC (the Reception Directive), encapsulate its purpose. They respectively provide:-
"The recitals
(4) The establishment of minimum standards for the reception of asylum seekers is a further step towards a European asylum policy.
(5) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the said Charter [inviolability of human dignity and the guarantee of the right to asylum with due respect to the Geneva Convention 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees]
…
(7) Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.
…
Article 1
Purpose
The purpose of this Directive is to lay down minimum standards for the reception of asylum seekers in Member States."
Notwithstanding the seemingly clear terms of these provisions, the appellant in these cases argues that where an asylum seeker makes a second application for asylum after his first application has been finally rejected, he is not entitled to the benefits that are conferred by the Reception Directive. Those benefits include (in Article 11) certain provisions in relation to entitlement to be employed while awaiting the outcome of an asylum application. The Secretary of State's argument was rejected by the Court of Appeal (Regina (ZO (Somalia) and others) v Secretary of State for the Home Department [2009] 1 WLR 2477, [2009] EWCA Civ 442) in its judgment delivered on 20 May 2009, allowing appeals by ZO (Somalia) and MM (Burma) from a decision of HH Judge Mackie QC of 25 June 2008. The Court of Appeal had also dismissed an appeal by the Secretary of State from a decision of Blake J of 11 December 2008 in the case of DT (Eritrea). Originally the appellant had appealed to this court against all three decisions of the Court of Appeal. Subsequently, however, DT was granted indefinite leave to remain in this country and, with the agreement of all the parties, the Secretary of State was permitted to withdraw the appeal in that case.
The facts and history of proceedings
ZO
ZO is a Somali national who arrived in the United Kingdom in 2003. She applied for asylum. That application was refused on 17 February 2004. A number of challenges were made to that refusal but the last of these finally foundered towards the end of 2004. On 31 March 2005 the Immigration Appeal Tribunal issued its determination in the case of NM and others (Lone Women – Ashraf) (Somalia) CG [2005] UKIAT 00076. On 9 May 2005, solicitors acting on behalf of ZO made further submissions to the Secretary of State based on the IAT's determination in the NM case. It was contended that this amounted to a fresh claim for asylum within the meaning of rule 353 of the Immigration Rules. AT the time of the hearing of this appeal, the Secretary of State had yet to decide whether leave to enter the UK should be given to ZO or whether the further submissions made on her behalf constitute a fresh claim.
On 27 February 2007 ZO was granted permission to apply for judicial review to challenge the delay in dealing with her further submissions. On 5 June 2007 she wrote to the Secretary of State asking for permission to work. She advanced this claim on the grounds of hardship and suggested that, if it could not be granted, she would seek priority for her application for judicial review. The Secretary of State refused to prioritise consideration of ZO's further submissions and on 31 August 2007 refused permission to work. ZO renewed her application for permission to work on 8 October 2007, referring to rule 360 of the Immigration Rules (which deals with applications for permission to work) but this was rejected on 15 October 2007, on the ground that her application for asylum had been refused on 17 February 2004.
Prompted by consideration of the decision of the High Court in R (FH) v Home Secretary [2007] EWHC 1571 (Admin), ZO conceded the ground of her application in relation to delay but in November 2007 she was given permission to amend the judicial review proceedings in order to challenge the refusal of permission to work under rule 360 of the Immigration Rules. The gravamen of the grounds of this latter challenge was that she had made an asylum claim on 9 May 2005. At an oral hearing on 30 January 2008, Stanley Burnton J set aside the grant of permission on the delay ground and refused permission to apply for judicial review on the Secretary of State's refusal of consent to her taking up employment. She was subsequently given permission to appeal the dismissal of her application in relation to the employment ground and by a consent order of 7 May 2008, the Court of Appeal granted permission to apply for judicial review. This was the application that was subsequently heard and dismissed by HH Judge Mackie QC.
MM
MM is a Burmese national who made an application for asylum after he arrived in the United Kingdom in 2004. That application was refused and all attempts to challenge the refusal had failed by March 2005. On 9 May 2005 he also made further submissions which, he said, amounted to a fresh claim based on new evidence. Again in his case the Secretary of State has not yet decided whether to grant MM leave to enter the United Kingdom or whether he has made a fresh claim for asylum.
On 27 July 2007 MM wrote to the Secretary of State asking for permission to work and referring to rule 360. This application was refused on 26 September. On 25 October 2007 MM applied for judicial review to challenge the delay in considering his further submissions and to challenge the refusal of permission to work. As in the case of ZO he based this on the circumstance that he had made an asylum application some 2 years and 5 months previously. On 10 March 2008, applying the decision in FH, the High Court refused permission to apply for judicial review on the delay ground but granted permission on the refusal of consent to take up employment. This application was also dismissed by Judge Mackie and allowed by the Court of Appeal.
The issues
On the hearing of the appeal to this court two principal issues were identified. The first was whether Article 11 of the Reception Directive applies to a person who has had an application for asylum in the United Kingdom finally determined against him when he makes a further application for asylum. Article 11 (2) of the Reception Directive is the critical provision in this instance. It provides:-
"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 decide the conditions for granting access to the labour market for the applicant."
The second main issue was whether this court should make a request of the Court of Justice for the European Union under Article 267 of the Treaty on the Functioning of the European Union (TFEU) for a preliminary ruling on the proper interpretation of the Reception Directive, in particular whether it is a measure intended to cover only the first application for asylum made by an individual to a Member State.
A subsidiary argument was made in the printed case for MM and supported by ZO in her printed case. It was contended that, even if the Secretary of State's claimed interpretation of the Reception Directive was accepted, the policy of refusing permission to work was in violation of Article 8 of the European Convention on Human Rights and Fundamental Freedoms. Blake J had dealt with this argument in the case of DT. He held that the Secretary of State's policy was unlawful as an unjustified interference with the right to respect for a private life. The Court of Appeal did not address the Article 8 issue because of its conclusion on the reach of the Reception Directive. Notwithstanding this, Mr Fordham QC for MM submitted that this court should deal with the Article 8 argument and uphold the reasoning of Blake J. The court indicated that, if we required argument on the Article 8 point, an opportunity would be given to present it. In the event, however, since we have reached the same conclusion as did the Court of Appeal on the interpretation of the Reception Directive, this is not necessary.
The case for the Secretary of State
For the appellant Mr Tam QC submitted that the clear purpose of the Reception Directive was to devise minimum standards for those who were 'received' by Member States for the first time as asylum seekers. He drew particular attention to the use of the expression "reception" in Article 1 and the title of the Directive. This, he said, indicated that the Directive was concerned with the initial encounter between the asylum seeker and the receiving State. That this was its purpose was reinforced by consideration of the corresponding words in some of the other Community languages, for example, "opvang", "accueil", "aufnahme",...
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