Communicated on 1 December 2015

FIRST SECTION

Application no. 64337/14 Daniel NEGASSI against the United Kingdom lodged on 23 September 2014

STATEMENT OF FACTS

The applicant, Mr Daniel Negassi , is an Eritrean national, who was born in 1975 and lives in London. He is represented before the Court by Mr J. Packer of Duncan Lewis Solicitors, a firm of solicitors based in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Backgrounds facts

The applicant claims to have entered the United Kingdom on 6 September 2005 using a false name and passport. He claimed asylum the following day. His claim was refused on 21 September 2005 and his appeal against that decision was dismissed on 1 February 2006. A request for reconsideration of that decision was refused on 13 March 2006.

On 12 December 2007 the applicant submitted further representations in support of his contention that he was entitled to refugee status.

The applicant ’ s solicitors wrote to the Secretary of State for the Home Department on 11 October 2008. In that letter they threatened to challenge the legality of the delay in reaching a decision on the further representations. They further asserted that the applicant should be granted employment rights while awaiting a decision.

On 21 October 2008 the Secretary of State wrote the applicant ’ s solicitors, confirming that his case was being dealt with as a “legacy” case by the Case Resolution Directorate. The letter indicated that the Home Office aimed to resolve all “legacy” cases by July 2011. With regard to the grant of employment rights, it stated that the applicant was no longer entitled to work in the United Kingdom because he had exhausted his appeal rights.

Council Directive 2003/9/EC laying down minimum standards for the reception of asylum-seekers (“the Recepti on Directive”) permitted asylum ‑ seekers to enter the labour market if a decision at first instance had not been taken within one year of the presentation of the asylum application. The Secretary of State believed the applicant was not entitled to work in the United Kingdom because he was of the view that the right to work contained in the Reception Directive only applied to a first application for asylum (and not to a failed asylum-seeker who had made fresh representations). This interpretation of the scope of the Reception Directive had been challenged before the domestic courts in the cases of R (ZO (Somalia)) v. Secretary of State for the Home Department and R (MM (Burma) v. Secretary of State for the Home Department but on 25 June 2008 the Administrative Court had dismissed the claims of the two claimants. However, the Court of Appeal granted the claimants leave to appeal and on 20 May 2009 it allowed the appeals. The Secretary of State was granted leave to appeal to the Supreme Court.

On 18 June 2009, following the judgment of the Court of Appeal in ZO , but pending the hearing before the Supreme Court, the applicant ’ s solicitors again requested that he be granted permission to work pending a decision on his outstanding representations. No response was received and on 7 September 2009 a letter before action was sent.

On 1 December 2009 the applicant lodged an application for judicial review, challenging the refusal of permission to work and seeking both expedition and an immediate order directing the Secretary of State to grant the applicant permission to work.

In January 2010 the applicant was offered employment in a store but he could not accept the position as it was conditional on his possessing a work permit.

The applicant was granted indefinite leave to remain on 11 March 2010. Thus, there was no longer any barrier to his obtaining employment in the United Kingdom.

On 28 July 2010 the Supreme Court dismissed the Secretary of State ’ s appeal in ZO .

2. Judicial Review proceedings

The application for judicial review was heard on 15 and 16 February 2011. As the applicant had already been granted indefinite leave to remain, the only live issue was a claim for damages. In view of the fact that there were a large number of potential claimants, the case was heard as a test case to decide in principle if damages could be awarded and, if so, in what circumstances and on what basis an award could be made.

The applicant contended that he was entitled to damages on two separate basis : for a breach of the Reception Directive and for the consequent interference with his rights under Article 8 of the Convention. He claimed non-pecuniary damages on the ground that he had become depressed on account of not being able to support himself and pecuniary damages based on lost earnings.

In respect of State liability for a breach of EU law, the Administrative Court noted that following Frankovich v. Italian Republic [1995] I.C.R. 722 and Brasserie du Pecheur v. Germany [1996] QB 404, the right to compensation was subject to three conditions: the rule of Community Law breached must have been intended to confer rights on individuals; the breach must have been sufficiently serious, in that the Member State had manifestly and gravely disregarded the limits on its discretion, if any; and there must be a direct causal link between the breach and the damage sustained.

The court accepted that in the case at hand there had been no question of the State having exercised any discretion in transposing the Directive. However, it rejected the applicant ’ s submission that failure to transpose a Directive properly could of itself, without more, constitute a sufficiently serious breach to result in State liability. Rather, it held that in a case such as the present, which concerned the mistaken construction of a Directive rather than a deliberate breach, a remedy in damages should only be provided where the mistake was based on arguments which were entirely devoid of merit. The hurdle to be overcome was therefore a high one and, although the present case could be described as “borderline”, in the circumstances the breach could not be described as manifestly and gravely unlawful.

In any event, the court did not consider that a causal link had been established between the breach and the damage sustained. Article 11 of the Reception Directive did not require that an applicant should be permitted to work, but rather that he or she should have conditional access to the labour market. At the time the applicant applied for permission to work, the only restrictions were on self-employment and engaging in a business or professional activity. However, the extension of the scope of the right of access to the labour market brought in many thousands of applicants and, as a consequence, the Immigration Rules were amended to provide further restrictions. In particular, applicants were only permitted to take up posts included on a list of shortage occupations published by the United Kingdom Border Agency. The court was satisfied that, had the scope of the Directive been correctly appreciated, such restrictions would have applied from the outset. Had that been the case, very few applicants, and certainly not the applicant in the present case, would have been able to obtain employment.

With regard to Article 8 of the Convention, the court noted that, although there was no positive right to work, an unlawful prohibition on access to the labour market could amount to an interference with the right to respect for private life (see, for example, Niemietz v. Germany , 16 December 1992, § 29, Series A no. 251 ‑ B and Sidabras and Džiautas v. Lithuania , nos. 55480/00 and 59330/00, § 47, ECHR 2004 ‑ VIII). However, it also noted that in all cases before the Court which raised the issue, the applicant was a national of the country allegedly in breach and so had a right to access employment. In the present case the applicant had no right to access the employment market and as a consequence Article 8 was not in play. There could therefore have been no interference with the applicant ’ s right to respect for his private life. Even if there had been, the court had no doubt that the interference was proportionate as being in accordance with the law and necessary in the interests of the economic well-being of the country and the rights and freedoms of others.

3. The Court of Appeal

The applicant was granted permission to appeal but the appeal was dismissed on 7 March 2013.

The Court of Appeal agreed with the Administrative Court that the United Kingdom ’ s breach had been unintentional and arose from a genuine misapprehension of the true legal position. Such a breach was not automatically sufficiently serious for the purposes of the Frankovich test: instead, a more nuanced approach was required. It therefore assessed the breach by reference to the factors identified in R. v. Secretary of State for Transport, ex parte Factortame (No. 5) [2000] 1 AC 524, namely: the importance of the principle breached; the clarity and precision of the rule breached; the degree of excusability of an error of law; the existence of any relevant judgment on the point; whether the infringer was acting intentionally or involuntarily; the behaviour of the infringer after it became evident that an infringement had occurred; the persons affected by the breach; and the position taken by one of the Community institutions on the matter. Having done so, it came to the conclusion that the breach was not of sufficient seriousness to satisfy the test.

The Court of Appeal further agreed with the Administrative Court that the applicant could not establish a causal link between the breach and any damage sustained as the applicant ’ s claim was a purely speculative one.

Finally, with regard to the facts of the present case, the court held that it did not reach a point where it could be said that the Secretary of State had interfered with the respect for the applicant ’ s private life required by Article 8 by refusing permission to work. It was common ground that Article 8 did not embrace a general right to work and, this being so, the protected right too respect for private life did not embrace the right of a foreign national, with no Treaty, statutory or permitted right of access to the domestic labour market, to an entitlement to work.

4. The Supreme Court

On 25 March 2014 the Supreme Court refused an application for leave to appeal filed by the applicant.

B. Relevant domestic law and practice

1. “Legacy” cases

The Legacy Programme was initiated by the Government in July 2006 to deal with a vast backlog of unresolved asylum claims, many of which were failed asylum claims where the unsuccessful claimant had neither been removed nor a decision made to grant him or her leave to remain in the United Kingdom. The Case Resolution Directorate was established to handle the “legacy” cases. As the programme was an operational programme only, the Case Resolution Directorate had to apply the same generally prevailing law and policy which applied to all other immigration and asylum cases.

In the case of R (FH & Ors ) v. Secretary of State for the Home Department [2007] EWHC 1571 (Admin) the Administrative Court held that while the delay inherent in the resolution of “legacy” cases was not unlawful, steps should be taken to ensure that, so far as possible, claimants did not suffer on account of the delay. Consequently, those who were being given support should continue to receive it and those who were able to work should continue to be permitted to do so.

In R ( Tekle ) v. Secretary of State for the Home Department [2008] EWHC 3064 (Admin) the applicant argued that his exclusion from lawful employment while waiting for a fresh claim for asylum to be considered amounted to a disproportionate interference with his right to respect for his private life. The Administrative Court reiterated that there was no right to a decision within any given period of time and no right to permission to work arose merely because of the expiry of a particular period of time. However, it found that undue delay due to the Home Office ’ s inefficiency both increased the right to respect for private life that is carried on of necessity during the period of delay, and could be said to diminish the strength of immigration control factors that would otherwise support refusal of permission to work.

The Administrative Court accepted that in the applicant ’ s particular circumstances, including the fact that he had been waiting four and a half years for a decision, the continued restriction on his taking up lawful employment amounted to an interference with his rights under Article 8 of the Convention. In particular, it held that the positive prohibition on being able to take up employment, self-employment or establishing a business, when placed alongside the inability to have recourse to cash benefits, restricted the claimant ’ s ability to form relations either in the work place or outside it. When such a requirement had been imposed on someone who could not be removed from the United Kingdom and it had been maintained against someone who had been physically resident in the United Kingdom since a fresh claim had been made four and a half years ago, the resultant restriction could be said to entail an interference with right to respect for private life.

The Administrative Court therefore declared that the “legacy” policy was unjustifiably detrimental to claimants who had to wait as long as Mr Tekle and it should be reviewed and reformulated within three months. No individual relief could be granted to Mr Tekle because of a lack of specific information about him.

2. Implementation of the Reception Directive

An asylum-seeker ’ s ability to have access to employment is based on Council Directive 2003/9/EC laying down minimum standards for the reception of asylum-seekers (“the Reception Directive”). Article 11 provides:

“ 1. Member States shall determine a period of time, starting from the date on which an application for asylum 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 this 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.”

The Reception Directive was implemented in domestic law by way of paragraphs 360 and 360A of the Immigration Rules HC 395 (as amended), which, at the relevant time, provided that:

“360. An asylum applicant may apply to the Secretary of State for permission to take up employment which shall not include permission to become self-employed or engage in a business or professional activity 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 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.”

These paragraphs do not establish that paragraph 360 is limited to first applications. Rather, the limitation resulted from enforcement instructions issued by the Home Office which provided, under the heading “Fresh Claims”:

“If a failed asylum-seeker makes a fresh asylum claim then provided it is accepted as a fresh claim the procedures set out above should be followed i.e the claimant will be entitled to apply for [permission to work (“PTW”)] provided he satisfies the criteria in Paragraph 360 of the Rules, otherwise a request for PTW would be a mandatory refusal. If the new asylum claim is not accepted as a fresh claim the person will have no entitlement to apply for PTW.”

3. ZO (Somalia) and Others v. Secretary of State for the Home Department

ZO and MM were failed asylum-seekers who had made fresh representations to the Secretary of State which they contended amounted to fresh claims for asylum. While they were waiting for the Secretary of State to decide whether to treat their submissions as a fresh claim, they applied for permission to work. They Secretary of State refused their applications and they sought permission to judicially review these decisions.

ZO and MM ’ s applications for judicial review were dismissed by the Administrative Court, which accepted 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 conferred by the Reception Directive.

However, on 20 May 2009 ZO and MM ’ s appeals against those dismissals were allowed by the Court of Appeal, which held that persons in their position should be entitled to the benefits conferred by the Reception Directive .

The Secretary of State appealed to the Supreme Court, arguing 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 and therefore the provisions of the Directive did not extend to subsequent applications for asylum. However, on 28 July 2010 the Supreme Court dismissed the appeals. In doing so, it noted that the Reception Directive was one of a package of Directives setting minimum standards for States dealing with persons in need of international protection. The definition of “applicant for asylum” in the Procedures Directive was virtually identical to that in the Reception Directive, except that there was no doubt that subsequent applications for asylum came within the definition in the Procedures Directive. The Supreme Court therefore found it to be “indisputably clear” that it had always been intended not only that the definitions of “applicant 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. This could only mean that subsequent applications would fall within the purview of the definitions of “applicant for asylum” and “asylum seeker” in the Reception Directive.

COMPLAINT

The applicant, relying on Article 8 of the Convention, contends that the absolute exclusion from the employment market of failed asylum-seekers seeking to make a fresh claim was an unlawful, disproportionate interference with his right to respect for his private life and that the domestic courts acted unlawfully in denying him an effective remedy for the loss of a chance to take up employment.

QUESTIONS TO THE PARTIES

1. Has there been an “interference” with the applicant ’ s rights under Article 8 of the Convention?

2. If so, has there been a breach of Article 8 of the Convention? More particularly, was any such interference “in accordance with the law” and was it “necessary in a democratic society” for the purposes of paragraph 2 of Article 8?

3. Has there been a breach of Article 14 read together with Article 8 of the Convention?