4 responses

1. Readers may also be interested to know that this case is not just about damages for state liability. The Claimant also argued that the blanket prohibition imposed by the Secretary of State preventing him from taking up employment breached his right to private life under Article 8, in particular his ability to develop relations with the outside world. He claimed that he was entitled to both pecuniary and non-pecuniary damages as a result of this. This argument is based on the clear line of ECHR authorities- namely Niemietz v Germany (1993) 16 EHRR 97 and Sidabras v Lithuania (2006) 42 EHRR 6.

   In considering whether Article 8 is breached, Collins J appears to accept this jurisprudence stating at paragraph 32 that “an unlawful exclusion from work could arguably give rise to a claim… I have no doubt that the inability to work and earn some money from employment, coupled with the opportunity for social intercourse relating from it, is regarded as very important.”
   However he went on to distinguish the Claimant’s case on one basis: that he had no pre-existing right to access the employment market. He states at paragraph 39: “In all the cases before the ECtHR which raised the issue, the claimant was a national of the country allegedly in breach and so he had a right to access employment which was interfered with by the prohibition.”

   This certainly seems a novel approach to the construction of Article 8 and arguably the wrong starting point for any analysis. The rights in the Human Rights Act 1998 are free-standing. There is no pre-cursor to their application. Article 1 of the ECHR clearly states that the provisions of the Act apply regardless of status. Here, the sole distinguishing factor is that the Claimant is an asylum seeker.

   Additionally, the Claimant was simply not asking the judge to decide that he had a right to work- simply whether the State interfered with his private life (particularly his ability to develop relations with others) and whether that was justified.

   Collins J. also appears to conflate the human rights claim with the claim under state liability on the issue of damages- finding that the former falls within the latter in respect of both pecuniary and non-pecuniary loss. In light of the different causes of action (private life v. state liability) and legal tests (sufficiently serious v. lawful) in each, this approach may be questionable.

   This was always a case that seemed destined for the higher Appeal Courts. It will certainly be interesting to see how it is resolved, not only in respect of state liability but also in respect of Article 8.

   1. Many thanks for you comment and analysis. Your point regarding the way in which the earlier authorities are distinguished by Collins J is particularly well made.

2. Negassi case throws up an interesting question of law concerning the test of discretion when considering whether a breach of E.U. law is “sufficiently serious” to entitle a claimant to damages. The test is whether the Member State “manifestly and gravely disregarded the limits on its discretion” (see Factortame (no. 4))

   Where a member state is required to implement EU law and is not called upon to exercise any legislative discretion, then the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach (see Dillenkofer).

   In Negassi, Collins J found that the U.K. did not have any discretion to exclude subsequent asylum seekers from the Reception Directive.

   Despite finding the Secretary of State had no discretion to exclude subsequent asylum seekers from the Reception Directive, Collins J refused to hold that breach of the Directive was a “sufficiently serious” one.

   The judge expressed his own view that it is ‘necessary to consider in any particular case the reason why the failure to implement properly occurred’. However, from reading the ECJ cases cited by him, it is not immediately apparent in a “no discretion” case if, and when, it is “necessary” to examine the reason for the failure.

3. Collins J made one particularly significant concession in his judgment: “It is clear that the enforcement instruction amounts to an administrative provision. While Mr Eicke at one stage appeared to argue that it was not, he did not pursue such an argument: it was obviously bad.”

   This concession relates to the Operational Guidance Handbook that contained the provision excluding second-time asylum applicants from the labour market. This exclusion was not evident in the legislation itself. The breach of European Law identified in ZO (Somalia) thus lies in the Operational Guidance.

   For Negassi, the ‘administrative measure’ concession is a deceptively significant one; by accepting that there was an administrative measure that breached EU law, Collins J has accepted that the Reception Directive was not effectively transposed into UK law within the prescribed time limit. This is because effective transposition requires a Member State to do more than simply adopt the necessary legal framework (Dillenkofer at [51]); administrative measures are part of transposition and those that frustrate the directive frustrate the transposition. The line of case law from the ECJ on this point could not be clearer. In Dillenkofer and Rechberger the failure to transpose a directive within the prescribed time limit constituted “per se a serious breach of Community law” which “consequently gives rise to a right of reparation” (Dillenkofer at [29]). Collins J resiled from following this thread of ECJ jurisprudence but the door remains open for such an argument to be run in the higher courts.

   This concession is also important when it is considered against the Secretary of States’ submission that the breach of EU law is not a serious one because the Commission raised no concern about how the UK Government had implemented the Reception Directive. In Negassi there was no evidence before the court that the UK government had disclosed the limitation contained in the Operational Guidance to the Commission in its transposition note. If the Commission did not know about the limitation in the first place the failure to raise a concern about it cannot be accorded much weight.

   This aspect of the Negassi judgment has two implications for the future: First, all guidance, policy documents or enforcement manuals can now be said to be administrative measures for the purposes of EU law. For future litigants, if a policy document, guidance or enforcement manual discloses a fetter of the government’s discretion in the context of European law, that document now has sufficient status for it to amount to a breach of European law in and of itself. Secondly, the UK government will need to consider the extent of its disclosure to the Commission for future transpositions. The status given to administrative measures by the ECJ, and now by Collins J, suggests that they too would need to be disclosed to the Commission in order for it to be able to report on compliance. Failure to disclose such measures prevents a transparent transposition process and makes it harder for the Commission to police compliance.