Negassi & Anor, R (on the application of) v Secretary of State for the Home Department [2013] EWCA Civ 151

[2013] EWCA Civ 151Case No C4/2011/1021 + C4/2011/2384
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
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/03/2013
Before
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil DivisionLord Justice RimerSir Stanley Burnton
Between
The Queen (oao) Negassi & anrAppellantsSecretary of State for the Home DepartmentRespondentMr Richard Wilson QC and Mr Declan O’Callaghan (instructed by Duncan Lewis Solicitors) for Appellant Mr NegassiMr Richard Drabble QC and Mr Paul Draycott (instructed by Paragon Law) for Appellant Mr LutaloMr Tim Eicke QC and Mr Robert Palmer (instructed by the Treasury Solicitor) for RespondentHearing Hearing dates : 6, 7 December 2012
Judgment
[1]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.[2]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.[3]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

[4]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[5]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[6]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).[7]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

[8]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 Francovichv 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 ?[9]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 HedleyLomas 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 reparation must be recognised where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious and there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties. … 28. As regards the second condition, where, at the time when it committed the infringement, the Member State in question was not called on to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach” (Emphasis added).
” …[10]This passage was referred to by the ECJ in Dillenkofer v Federal Republic of Germany [1997] QB 259, where it added:
“25. … a breach of Community law is sufficiently serious if a Community institution or Member State, in the exercise of its rule-making powers, manifestly and grossly disregards the limits on those powers … … 29. … failure to take any measure to transpose a Directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of Community law and consequently gives rise to a right of reparation for individuals suffering injury if the result prescribed by the Directive entails the grant to individuals of rights whose consent is identifiable and a causal link exists between the breach of the state’s obligations and the loss and damage suffered.”
There the breach took the form of failure to implement a package holiday refund until eighteen months after the latest permitted date. The ECJ found a per se serious breach and rejected Germany’s attempt to mitigate it by reference to ongoing consultations. There had been no application for an extension of time. …[11]A similar conclusion was reached in Rechberger v Austria, [2000] 2 CMLR 1, where the delay in transposition was considerably shorter (four months). It mattered not that Austria had implemented the Directive in all respects apart from achievement of the required date. However, the ECJ commented that the assessment of the seriousness of a breach may include consideration of factors such as “the clarity and precision of the rule breached”: paragraph 50.[12]When a Member State does not effect transposition of a specific provision at all by the required date it creates a European legal vacuum. It is easy to see why it is considered to be inherently serious. But what if the Member State, as in the present case, has endeavoured to effect transposition within the required time but has done so imperfectly? In R v HM Treasury, ex parte British Telecommunications PLC [1996] QB 615, the ECJ reiterated the three conditions but added:
“40. Those same conditions must be applicable to the situation … in which a Member State incorrectly transposes a Community Directive into national law. A restrictive approach to state liability is justified in such a situation, for the reasons already given by the Court to justify the strict approach to non-contractual liability of Community institutions or Member States when exercising legislative functions in areas covered by Community law where the institution or state has a wide discretion – in particular the concern to ensure that the exercise of legislative functions is not hindered by the prospect of actions for damages whenever the general interest requires the institutions or Member States to adopt measures which may adversely affect individual interests … …. 43. In the present case, Article 8(1) [of the relevant Directive] is imprecisely worded and was reasonably capable of bearing, as well as the construction applied to it by the Court in this judgment, the interpretation given to it by the United Kingdom in good faith and on the basis of arguments which are not entirely devoid of substance … That interpretation, which was also shared by other Member States, was not manifestly contrary to the working of the Directive or to the objective pursued by it.”
A similar approach is apparent in Haim v Kassenzahnärztliche [2002] 1 CMLR 11, where the Court of Justice said: “42. In order to determine whether such an infringement of Community law constitutes a sufficiently serious breach, a national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it. 43. Those factors include, in particular, the clarity and precision of the rule infringed, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by a Community institution may have contributed towards the adoption or maintenance of national measures or practices contrary to Community law.” ….[13]Where does all this lead? In my judgment, it demonstrates that, although there will be some cases where a failure to transpose a specific provision at all by a required date may, without more, amount to a sufficiently serious breach, a bona fide attempt at transposition will attract a more nuanced approach. I am entirely satisfied that the breach of EU law with which we are concerned in the present case does not entitle Mr Negassi to say that he is automatically entitled to reparation. On any view, the United Kingdom’s breach was unintentional. It arose from a genuine misapprehension of the true legal position. Whatever may be the reach of automatic entitlement, it does not extend to this case. (2). The multifactorial test[14]It follows that Mr Negassi’s claim for damages must be assessed by reference to the multifactorial test for sufficient seriousness, the essence of which is apparent from British Telecommunications and Haim. In the domestic context, it was the subject of helpful guidance in the speech of Lord Clyde in R v Secretary of State for Transport, ex parte Factortame (No5), [2000] 1 AC 524, at pages 554-556. He identified the following as potential factors:(1) the importance of the principle which has been breached;(2) the clarity and precision of the rule breached;(3) the degree of excusability of an error of law;(4) the existence of any relevant judgment on the point;(5) whether the infringer was acting intentionally or involuntarily or whether there was a deliberate intention to infringe as opposed to an inadvertent breach;(6) the behaviour of the infringer after it has become evident that an infringement has occurred;(7) the persons affected by the breach or whether there has been a complete failure to take account of the specific situation of a defined economic group;(8) the position taken by one of the Community institutions in the matter. He added (at page 554B-D) that the application of the “sufficiently serious” test “comes eventually to be a matter of fact and circumstance”. “No single factor is necessarily decisive. But one factor by itself might, particularly where there was little or nothing to put in the scales on the other side, be sufficient to justify a conclusion of liability.”[15]A number of points can be made in favour of Mr Negassi. Although it is not suggested that there was a deliberate breach, the fact is that its consequence served a national rather than an EU interest. In so doing it excluded a substantial number of asylum seekers – a class broadly defined as fresh claimants – from a benefit to which the Reception Directive entitled them. There was no discretion to exclude them. There is no evidence that other Member States had misapprehended the Directive in the same way. On the other hand, there was no judicial decision either of the Court of Justice or (until the decision of the Court of Appeal in ZO in 2009) in this jurisdiction which demonstrated the breach. We have seen later correspondence to the effect that the Commission had always understood the position to be as it was declared by the Supreme Court in ZO but there had been no earlier hint of infringement proceedings and in a report to the Council and the European Parliament dated 26 November 2007, dealing with transposition across the EU, the Commission had not identified any breach in the UK transposition.[16]At the heart of the case for the Secretary of State there is reliance on a submission that the obligation did not become clear and precise until the decision of the Supreme Court in ZO. The submission is supported by the fact that, in the early stages of ZO, the Secretary of State’s interpretation had found judicial favour. The application for permission to apply for judicial review was considered to be unarguable when determined by a judge on the papers and also by Stanley Burnton J following an oral application. Although the Court of Appeal then granted permission to apply and remitted the case to the Administrative Court, on the substantive hearing, HH Judge Mackie QC dismissed the application and refused permission to appeal: [2008] EWHC 1604 (Admin). However, the Court of Appeal later granted permission to appeal and the claimant later succeeded in the Court of Appeal, [2009] 1 WLR 2477, and in the Supreme Court.[17]This tends to suggest that what has now emerged as the correct interpretation was not a certain conclusion upon a clear and precise provision. On the other hand, the Supreme Court plainly found no lack of clarity or precision. Lord Kerr, delivering the judgment of the Court, referred to “the seemingly clear terms of these provisions” (paragraph 2). Later passages include the following:
“25. There can be no doubt that subsequent applications for asylum come within the definitions contained in paragraph 2 of the Procedures Directive … 26. On the Secretary of State’s case, the expression ‘application for asylum’ must be given a markedly different meaning in the Reception Directive from that in the Procedures Directive … …. 30. … it is indisputably clear that it had always been intended not only that the definitions of applicants 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 possible remedies had been pursued and determined.”
Lord Kerr described the contrary conclusion as “anomalous and untoward”. These are powerfully expressed conclusions, to which Mr Tim Eicke QC wryly responds by observing that a panel of three Supreme Court Justices (only one of whom sat on the substantive appeal) had earlier considered the case for the Secretary of State to merit permission to appeal. ….[18]I, of course, accept every word of Lord Kerr’s judgment. However, it does not necessarily follow that what had become “indisputably clear” after two days of argument in the highest Appellate Court should have been manifestly obvious to the Secretary of State several years earlier. Moreover, whilst everyone knew from the outset that the Reception Directive would eventually form part of a package, the Procedures Directive – which played such an important part in the ultimate construction of the Reception Directive - did not attain final promulgation until 1 December 2005, almost three years after the Reception Directive (27 January 2003) which required effective transposition by 6 February 2005. The necessary transposition instrument, a change to the Immigration Rules, was laid before Parliament on 11 January 2005, eleven months before the promulgation of the Procedures Directive.[19]In my judgment, this chronology coupled with the litigation history of ZO affords the Secretary of State some mitigation when one is considering the seriousness of the breach. There is indirect support for this proposition in Cooper v Attorney General [2011] QB 976 CA, EWCA Civ 464 where, in a slightly different context, Arden LJ giving the judgment of the Court, said (at paragraph 70) that a breach of EU law “will not be manifest if it represents the answer to which the court has come through undertaking a normal judicial function.”[20]The evaluation of the seriousness of the breach in the present case seems to me to be quite finely balanced. I have come to the conclusion that, notwithstanding the points in Mr Negassi’s favour (the most striking of which was the total exclusion of the subset of applicants for asylum of which he was one), the breach was not of sufficient seriousness to satisfy the test. It was not deliberate. It was the result of a misunderstanding of new provisions in an area of recent EU concern. It was not a cynical or egregious misunderstanding. It was not confined to the Secretary of State. It was shared, as a matter of first impression, by a number of judges. Whilst now all is clear, I do not think that it can be said to have been self-evidently so before the conclusion of ZO. Mr Negassi’s fallback position is that at the very least it had become so by the time of the decision of the Court of Appeal in ZO and yet almost another year was to pass before the Secretary of State yielded on the grant of indefinite leave to remain. However, this gives insufficient recognition to the fact that the Secretary of State sought and obtained permission to appeal to the Supreme Court. (3). Causation[21]If my conclusion that the breach of EU law in the present case was not sufficiently serious to open the door to a claim for Francovich damages is correct, this second issue does not arise. However, in case that conclusion is wrong and out of deference to the submissions of counsel, it is appropriate for me to address it. The starting point (which is common ground) is that a claimant for damages has to prove not only a sufficiently serious breach but also a “direct causal link” between the breach and the damage alleged to have been sustained.[22]In the Administrative Court, Collins J held that Mr Negassi had not established a causal link. He said:
“26. … It is important to bear in mind what rights accrue from Article 11. It does not require that an applicant shall be permitted to work, merely that he should have conditional access to the labour market. It is for the Member State to decide what conditions are applicable and, as Article 11.4 shows, priority may be given to its own citizens, EU and EEA nationals and legally resident third-country nationals.”
It is common ground that, before he was granted indefinite leave to remain, Mr Negassi was not “legally resident” for present purposes. It seems to me that the initial analysis of Collins J is correct. He next observed that, once the Secretary of State had become aware of the implications of ZO, she prescribed conditions pursuant to Article 11.4 which operated very restrictively on an applicant for asylum. Paragraph 360D of the Immigration Rules, which came into force on 9 September 2010, provides:
“(i) Employment may only be taken up in a post which is, at the time an offer of employment is accepted, included on the list of shortage occupations published by the United Kingdom Border Agency (as that list is amended from time to time).”
It is not suggested that Mr Negassi is equipped to carry out any of the “shortage occupations”. This led Collins J to conclude:
“30. I am satisfied that, had the scope of the Reception Directive been appreciated [earlier], restrictions such as those now in favour would have applied. Certainly there would have been more extensive restrictions than those in existence before 9 September 2010. Very few applicants, and certainly not the claimant, would be or would have been able to obtain employment. Thus I do not think that a direct causal link is established. Any claim would be speculative to such a degree that it should not be regarded as properly brought.”
In my judgment, this reasoning is essentially correct.[23]The submission on behalf of Mr Negassi is that he can establish the causal link by analogy with the analysis referable to a negligence claim in a domestic context as explained in Allied Maples Group Ltd v Simmons and Simmons [1995] 1 WLR 1602. However, I do not consider that we are in that territory or even that illustrated by R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 which was concerned with a trespassory tort actionable without proof of damage. Our concern is with an EU duty “to decide conditions for granting access to the labour market”. The duty is imposed by Article 11.2 but the conditions are not. They are matters of subsidiarity. When the Secretary of State first came to understand that Article 11.2 extends to fresh claims, she prescribed conditions, the legality of which is not challenged in the present case (although we are told that there is a case pending but currently stayed in the Administrative Court in which such a challenge is being advanced). It was quite permissible for Collins J to conclude that, if the Secretary of State had appreciated the full meaning of Article 11.2 earlier, she would have set similarly restrictive conditions at that time.[24]It is further submitted on behalf of Mr Negassi that to deny him compensation by reference to causation in these circumstances is to disregard the EU requirement for an effective remedy. However, the effectiveness of the remedy has to be measured by reference to the breach in question. When the breach is of an obligation to prescribe conditions it is pertinent to consider what conditions would have been imposed but for the breach. I do not accept the submission that this amounts to permitting the Secretary of State to rely on her own unlawful act. As I see it, the obligation arising under Article 11.2, especially when read in conjunction with Article 11.4, is a relatively “soft” obligation. This supports the conclusion of Collins J that Mr Negassi’s claim is a speculative one, unable to overcome the need to establish a causal link.

Lutalo: Article 11.1

[25]The issue in ZO – the “fresh claim” point – does not avail Mr Lutalo. His one and only application for asylum received an adverse “first instance” decision from the Secretary of State within four weeks. Thereafter, extensive delays occurred within the appellate system. The application for PTW was made almost exactly a year after the first instance decision and in the course of the appellate delays (which were not the fault of Mr Lutalo). On any view, Article 11.2 was not designed to apply in such circumstances. Its concern is with delays of a year or more prior to the first instance decision. It is in these circumstances that the case for Mr Lutalo focuses on Article 11.1.[26]On the face of it, Article 11.1 is concerned with the prescription of circumstances in which an applicant for asylum “shall not have access to the labour market” (emphasis added) rather than with creating a right to such access. However, the bold submission of Mr Richard Drabble QC is that to limit it in this way would be to emasculate the purpose and intention which underlay the Reception Directive and would render Article 11.1 virtually impotent. His starting point is the recitals to the Directive. The following recitals were referred to by counsel: “(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. …. (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. (8) The harmonisation of conditions for the reception of asylum seekers should help to limit the secondary movement of asylum seekers influenced by the variety of conditions for their reception.” ….[27]The provisions of the Charter referred to in recital (5) are in the following terms:
“1. Human dignity is inviolable. It must be respected and protected. 15. … Freedom to choose an occupation and right to engage in work. (1) Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. (2) Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State. (3) Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.”
Mr Drabble emphasises the word “Everyone” in Article 15(1), which is not limited, as Article 15(2) is, to EU citizens or as Article 15(3) is, to third country nationals with work permits. (1) Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. (2) Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State. (3) Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.”[28]Against this background, I return to the central issue identified by Mr Drabble: Does Article 11(1) of the Reception Directive require the Secretary of State to prescribe a specific period of time, at the end of which any applicant for asylum whose claim has not been finally determined is entitled to access the labour market, subject to any restrictions imposed pursuant to Article 11(4)? Mr Drabble’s reference to any applicant for asylum embraces those whose applications have not yet been determined by the Secretary of State and those whose applications have been determined by the Secretary of State but who are exercising appeal rights which have not yet been exhausted. At the forefront of his submissions is the contention that recital (7) of the Reception Directive establishes its purpose as being to ensure that applicants for asylum have “a dignified standard of living” based on comparable living conditions in all Member States.[29]When rejecting this submission in the Administrative Court,

Judge Stephen Davies said:

“19. … it is clear from Article 1 and the recitals that the purpose is to specify minimum standards as a short term step towards a common European asylum policy. It is also clear from Article 15.2 of the Charter … that asylum seekers, as non-EU citizens, are not regarded as having a right to engage in work in any individual Member State pending acceptance of their asylum claim, whether at first instance or on appeal. It follows, in my judgment, that there is no basis for adopting a purposive construction of Article 11.1 on the footing that its purpose was to achieve that objective. 20. I do consider that there are plain and obvious differences between the wording of Article 11.1 and Article 11.2 which cannot simply be explained as unintentional drafting differences. Article 11.2, which on any view imposes a positive obligation, is nonetheless drafted to make it clear that Member States are not required to permit all asylum seekers falling within its scope to be granted access to the labour market; the obligation is limited to ‘deciding the conditions for granting access’. It would be a remarkable conclusion that Article 11.1 not only operated to create a positive obligation, even though it used the language of negative obligation, but also either had to be construed as an unqualified positive obligation (ie an obligation to permit access to work rather than an obligation to determine conditions for permitting access to work) or as impliedly containing those words. That is particularly so if, as the claimant submits, Article 11.2 is intended to be no more than a sub-set of the overarching positive obligation imposed by Article 11.1.”
Judge Stephen Davies further considered that Article 10(1), which is concerned with access to education for minor applicants for asylum and the children of adult applicants, is unequivocally a positive obligation to provide access to education on a non-discriminatory basis. Article 10 limits the postponement of such access to three months from the lodging of the application (extendable to one year in specified circumstances). The Judge took the view (at paragraph 21) that Article 11.1 would have been drafted in similar terms if it, too, had been intended to impose an all-embracing obligation on Member States to grant access to the labour market after a specified period of time.[30]This is a persuasive analysis and I agree with it. Mr Drabble seeks to confront it by reference to passages in the judgments in ZO but they relate to the issue there in dispute, namely the inclusion of fresh claims. They do not seem to me to be addressing the construction of Article 11.1. He also seeks to “go back to first principles”, inviting us to start from the proposition that applicants for asylum are entitled to do anything which they are not expressly prohibited from doing. However, that, in my judgment, is too broad a proposition. Mr Lutalo was granted admission to this country on the express condition that he did not undertake employment. No infraction of EU law or any other international obligation impacted upon that. There is force in another of Mr Drabble’s submissions, namely that if Article 11.1 does not operate in the way for which he contends, it achieves little or nothing. He may well be right but I consider that to be a questionable foundation upon which to construct an edifice as far removed from the wording of Article 11.1 as the one he advocates. I am unpersuaded that Article 11.1 applies to the time subsequent to the first instance decision of the Secretary of State (save when time begins to run again upon the making of a fresh claim). The Reception Directive is concerned with “minimum standards” (recital (7)).[31]Late in the day, counsel were able to provide us with a comparative analysis of the laws of almost all the Member States of the EU on the matters with which Article 11 is concerned. They are strikingly variable, some providing for access to the labour market from an early stage (for example, three months in Austria), others opting for an approach modelled on Article 11.2. Some do not distinguish between applicants who are still awaiting a first decision and appellants; others do. Some schemes are heavily circumscribed by reference to Article 11.4; others less so. The comparative exercise is ultimately inconclusive. It certainly does not establish that there is a uniform approach reflecting Mr Drabble’s construction of Article 11.1, nor has any Member State become the subject of infringement proceedings.[32]I do not pretend that any construction of Article11.1 and Article11.2 produces a symmetrical model of perfect statutory beauty. This may explain why there is now a Council proposal to recast it: Doc 14112/1/12 REV1, 27 September 2012. It is more readily intelligible.

Article 8

[33]Both appellants advance submissions under Article 8 of the ECHR, either as attempts to reinforce their primary cases under Article 11 of the Reception Directive or on a free-standing basis. In both cases, the submissions were rejected in the Administrative Court. Collins J and Judge Stephen Davies concluded that no interference with the right to respect for private life had been established. In Mr Negassi’s case, Collins J also considered that, if there had been an interference, he would still have rejected the claim for damages pursuant to section 6 of the Human Rights Act 1998 because he was not satisfied that an award of damages was “necessary to afford just satisfaction to the person in whose favour it is made”: section 8(3).[34]The case for the appellants is founded on authorities such as Niemitz v Germany (1992) 16 EHRR 97, Sidabras v Lithuania (2006) 42 EHRR 6 and R(Wright) v Secretary of State for Health [2009] 1 AC 739. It is a striking feature of those cases that their contexts are domestic, in the sense that the complainants were nationals of the states in which the interferences with respect for their private lives occurred. None of the cases was concerned with the position of a foreign third-country national subject to immigration control. Sidabras concerned applicants who, prior to independence, had worked for the Lithuanian branch of the KGB. As a result, they were subjected to employment restrictions pursuant to an Act of 1998. They were dismissed from their positions as a tax inspector and a public prosecutor by reference to that Act. The Strasbourg Court upheld their complaints, not under Article 8 standing alone, but under Article 14 taken in conjunction with Article 8. The Court said:
“43. The Court has on a number of occasions ruled that ‘private life’ is a broad term not susceptible to exhaustive definition. It has nevertheless also observed that Article 8 protects the moral and physical integrity of the individual, including the right to live privately, away from unwanted attention. It also secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his or her personality.” (Emphasis added).
The words I have emphasised are capable of wide application. However, it ill behoves a domestic court to adopt an expansionist approach, particularly in an area which is permissibly the subject of domestic statutory control. In R (Countryside Alliance) v Attorney General [2008] 1 AC 719 Lord Bingham described Sidabras as “a very extreme case on its facts” (paragraph 15). Nevertheless, it influenced the later decision of the House of Lords in R (Wright) v Secretary of State for Health [2009] 1 AC 739. There, however, the complainants were being excluded from obtaining work in the care sector because of their inclusion on a barred list in respect of which they had no right to make timely representations. All this is far removed from cases of foreign nationals with no pre-existing rights of access to the domestic labour market. Indeed, in the case of Mr Lutalo, he entered the United Kingdom with an express prohibition against making or taking employment here.[35]The appellants seek to rely on Tekle v Secretary of State for the Home Department [2009] 2 All ER 193 (Admin), EWHC 3064 (Admin), in which Blake J relied upon Article 8 when concluding that it was unlawful to prohibit an asylum seeker from working when the final determination of his fresh claim had become delayed for several years, much of the delay having resulted from inefficiency and inadequate resources in the Home Office. Tekle may have been correctly decided on its facts but they went way beyond those in the present cases. The context was one in which the Secretary of State had deliberately adopted a policy whereby decisions on claims such as the one under review were deferred for five years or more.[36]I return to the facts of the present cases. Mr Negassi’s “fresh claim” was made in December 2007, two months after he had been returned from Ireland pursuant to the Dublin Convention. He sought permission to work in September 2008. The case then became caught up in the delays consequent upon the ZO litigation. His application for permission to apply for judicial review was issued on 1 December 2009. By March 2010 he had been granted indefinite leave to remain. Mr Lutalo entered the United Kingdom on a 6 months visitor’s visa in May 2004. It prohibited him from working. In November 2004, he became an illegal overstayer and eluded the authorities until he was arrested in 2007 for a false passport offence for which he received a sentence of imprisonment. He only applied for asylum after release whereupon it was refused a month later. Upon refusal, he exercised his right of appeal. Judge Stephen Davies observed that, at the time of the hearing in the Administrative Court, less than two years had elapsed since the lodging of the statutory appeal “and there is no particular reason to consider that there will be any further significant delay in arriving at a final decision”. This turned out to be correct (see paragraph 6, above). He considered that this history came “nowhere near establishing a real interference with a right to private life” (paragraph 56).[37]In my judgment, neither of these cases reaches a point at which it can be said that the Secretary of State interfered with the respect for private life required by Article 8 by refusing permission to work. Although the threshold for interference is not especially high (AG (Eritrea) v Secretary of State for the Home Department [2008] 2 All ER 28 CA, EWCA Civ 801, at paragraphs 26-28, per Sedley LJ), it is meaningful. It is instructive to compare the present cases with Anufrijeva v SouthwarkLBC [2004] QB 1124, in which one of the appellants sought to rely on Article 8 in support of an allegation that he had received insufficient financial and welfare assistance during the time when his asylum application had been under consideration. In giving the judgment of the Court, Lord Woolf CJ said:
“43. Our conclusion is that Sullivan J was correct to accept that Article 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage Article 3. Article 8 may more readily be engaged where a family unit is engaged.”
[38]In the present cases, where it is common ground that Article 8 does not embrace a general right to work, I do not consider that the protected right to respect for private life embraces the right of a foreign national, who has no Treaty, statutory or permitted right of access to the domestic labour market, to an entitlement to work. We have not been referred to any Strasbourg authority which supports the engagement of Article 8 in these circumstances. Tekle is readily distinguishable.[39]For these reasons I therefore conclude that these are simply not Article 8 cases.

Conclusion

[40]It follows from what I have said that, in my judgment, neither Mr Negassi nor Mr Lutalo has rights under Article 11 of the Reception Directive or Article 8 of the ECHR which have been infringed in this case. Accordingly, I would dismiss both appeals.[41]I agree.

Sir Stanley Burnton:

[42]I also agree.

Cited in 14 later judgments

and 5 more of the most senior