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Right to work


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Right to workThere are two recent important developments on this front.

The first is that the Home Office is appealing the ZO Somalia case on right to work for those who have made fresh asylum claims and have not received a decision within one year of their application. This may well be of interest to those stuck in the Legacy backlog awaiting decisions. Additionally, the Home Office are saying that even if they ultimately lose on the legal point, there is no obligation in European law to grant permission to work, only to decide the terms of access to the labour market. There will be no decisions made on right to work applications until the appeal is decided or the Home Office become, in their own language, ARE (Appeal Rights Exhausted).

The other important development applies only to Turks but is very important for them. In the new case of Sonmez v SSHD [2009] EWCA Civ 582 the Court of Appeal eventually concludes that prior breaches of immigration law do form an adequate basis for refusal of a permission to work application under the Ankara Agreement. The case concerns those who breached immigration law to establish employment or self employment and then have sought to rely on the Ankara Agreement to continue that employment or self employment. It is a split judgment, with Sedley LJ in the minority and Dyson and Maurince Kay LLJ in the majority. All agreed that the common law principle of ex turpi causa non oritur actio (‘from a dishonorable cause an action does not arise’) was not by itself reason to refuse the applications. This was the basis of the Tribunal’s earlier decision. The Tribunal had raised the point of their own motion and not referred themselves to relevant authorities more or less confining that principle to contract or tort. The majority, however, found that previous breach of immigration laws to establish employment or self employment did amount to an abuse and, relying on the earlier cases of Tum and Dari, Kondova and LF (Turkey) this was sufficient reason in European Community law to deny the benefits of the Ankara Agreement.

As with ZO Somalia, this won’t be the end of the matter. Both issues will probably end up in the House of Lords and then the ECJ. That could be several years down the line, though.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


13 Responses

  1. On ZO – Somalia

    The Home Office is a really depressingly inefficient public body and it costs the taxpayer a lot. Why do they need to fight this case? If they are claiming that in the near future they will be concluding whatever percentage of asylum cases within 6 months through case ownership (eventually they would want this percentage to be almost 100%), there surely will not be any asylum seeker left to seek permission to work in that near future, fresh claim or first claim.
    Where is the public interest in pursuing this appeal?!!

    And what happened to the original Tekle judgement judge’s recommendation. The joined ZO case forgets that asylum seekers are human beings and concentrates on technicalities only.

  2. The HO have a religious objection to granting the right to work to ‘FAS’, lines sent round to case owners suggest that we are going to fight this tooth and nail. Personally i really cant see the point as it smacks of punishing the FAS for our own lack of staff, i am however in a minority on this side of the fence.

    1. I guess in many respects the situation is more or less catch 22? As there are some persons who cannot be removed for various reasons…

    2. Indeed yes there are, some times as the wont assist with ETD’s and some times through no fault on the part of the FAS, often though removal happens when they just run out of money to pay the ‘immiration lawyers’. The system is oh so random

    3. LondonHopo, why are the reasonable and practical people like you always in a minority?

      To me, appealing this case is showing the HO as liars.
      They are saying to the public that HO aim is to conclude all new asylum cases in 6 months (making claimants ARE, they are not just talking about HO initial decision). On the other hand, they don’t want to give permission to work to fresh asylum claimants who have been waiting for initial decision for more than a year. The backlog of old cases will have been finished by July 2011, which may be around the same time when this pointless appeal finishes.

      So are the HO saying that they have lied about the 6 months case conclusion target aim? That that was just a spin or a blatant lie? By appealing this case they are saying, oh yes, we will be slow in making decisions in the future as we have been in the past, we are not changing the way we work at all. Forget about the new asylum model and our fancy targets, no really, we like being slow and taking years to give initial decisions,…, so we predict there will be lots of people who have been waiting for an initial decision for more than a year, and we don’t want to give them access to the labour market.

      Very confusing. HO talk/speak. No sense at all.

    4. Those making a ‘fresh claim’ are not awaiting an ‘initial decision’.
      They already got that some time ago, had all their appeals dismissed, and then made a secondary claim while awaiting removal (or more likely concession and leave outside the rules).

      The 6 month conclusion targets do not apply to fresh claims, and so your objection to this don’t stand-up. Those targets are aspirational anyway, we are never going to conclude 100% of cases in 6 months, because the timescale for a large chunk of the refused cases is not in our hands – it is often dependant on obtaining travel documents from notoriously obstructive embassies like the Chinese, Iranians, etc.

      Surely the reason why we are appealing is obvious, whether you agree with it as significant or not:
      Before our slow-moving asylum system, with permission to work after the inevitable 6 months of waiting for a decision, was a pull to economic migrants.
      The aim to ‘conclude’ case more quickly is intended to do away with that incentive to choose the UK over any other European country (that they all pass through on the way.)
      If we are then obliged to give permission to work to those who are at the end of the process but awaiting removal, we will be back to square one.
      Economic migrants will know that they come here, put in some standard claim, get refused, get dismissed, get ARE, put in a ‘fresh claim’ on more or less the exact same grounds already rejected by the courts, and BINGO – you are free to work for a few years until it is time to be removed.

      Whatever side of the debate you are on, I don’t think anyone disputes that there is a significant proportion of asylum seekers who are no more than economic migrants. If this decision is not overturned then that proportion will only increase, making public hostility to all asylum seekers, even the genuine refugees, even stronger than it currently is.

    5. Provincial PO,

      I’m with londonhopo on this one, Surely the solution is for UKBA (our beloved employer) to put in adequate resources for both initial and secondary applications to be concluded within an acceptable time frame.

      The fact that there are loads of initial or secondary applications sat with Croydon, all being told “look forward to 2011 when we will hopefully make a decision” is an outrage.

      It would be cash wise for ‘UK PLC’ to have ALL applications granted or refused as soon as possible, in turn the “Immigration Lawyers” should stop abusing process by lodging hopeless JR after hopeless JR when people have reached the end of the line, and instead act responsibly in talking to their clients about AVR in order that the trauma (and expense) of detention (particularly of children) can be avoided.

      Both sides need to step up to the plate and act responsibly on this one.


    6. PO, you regularly seem to refer to “immigration lawyers” in quotation marks. I’m not quite sure why. I absolutely agree that faster processing of claims is the obvious solution here, and I’d emphasise that genuine asylum claimants have an interest in rapid decisions (as long as they are not TOO quick, to the point they cannot present their cases effectively, as under the fast track system).

      I’m not terribly happy being lectured by a presenting officer on how to do my job and how to be a lawyer. You seem to be under a misapprehension about the role of a lawyer, which is to do what he or she is told by the client and vigorously to represent best interests. The client decides on his or her own best interests. We do not have a duty to ‘act responsibly’ as defined by the government of the day. We can and do advise on prospects of success and alternatives, but if a client wants to resist removal and is eligible for legal aid (including the merits test) or willing to pay privately, that’s what we will try and do. As an aside, the role of a prosecutor, to which I’d liken presenting officers, is slightly different. It is not about achieving success at any cost.

      I haven’t noticed criminal defence lawyers being told to advise more clients to plead guilty and being chastised for representing them if they do not.

    7. Obtaining travel documents is a problem with removal, not deciding fresh claims. Many fresh claims are not on the same grounds at all, not least because the failed asylum seeker was made homeless rather than removed several years ago and has been here ever since. The country situation changes, as with Zimbabwe and Sri Lanka, and on the basis of new facts and evidence a new claim can be advanced.

      Sitting on fresh claims for years is very expensive in terms of asylum support and public comprehension and it is an abrogation of the UK’s duties under the Refugee Convention. If someone is going to be kept waiting for literally years when they claim to be a refugee under international law, the least we can do is give them the right to work and allow some personal dignity.

      Even if some refugee claimants are economic migrants, I don’t see what is so wrong with economic migrants. With more claimants being granted asylum by the Home Office at first instance and the appeal success rate going up, plus all the grants of subsidiary protection, it rather looks like around half of all claimants get status of some sort. Many others who do not had legitimate claims or a genuine fear, but it is found that their fear is not objectively well founded or they can relocate or similar. For example, are Darfuris not genuine refugees in the popular sense, even if not the legal sense? They have been burned out of their villages, attacked, tortured and seen their friends and families killed. I would never consider them ‘bogus’ even if they do not succeed in their asylum claims here. It is difficult to criticise them for wanting to leave Sudan rather than live in a squalid refugee camp near Khartoum.

  3. Fresh claims are frustrating to deal with, I have on more than one occasion been faced with someone on their second trip through the appeals system when I dealt with and had dismissed their 1st appeal some years previously.

    I don’t blame them for doing this as it is not their fault rather that of the UKBA which seems to have an inbility to remove anyone who refuses to cooperate in their removal. If the situation back home has changed so that there is now an arguable case that they are now at risk then they are entitled to apply.

    The longer someone is in the UK the more chance that they are going to see a change in the law as it relates to them. For example FM mentions Darfuris, the policy used to be that all Black Darfuris were at risk, but rumor has it that a HOPO made a mistake which resulted in the position we have in HGMO, sooner or later someone is going to realise that sending people back to squalid refugee camp is not acceptable.
    Then maybe we can get to the real issue which is taht many of these so called ‘black’ Darfuris are actualy arabic sudanese, though I’m only basing this on the fact that the people I see in papers and on the TV look quite different to the majority of so called darfuris that appear in court.

    And can anyone actually belive that the position in relation to Iranian gays is going to last much longer, all it will take is a ‘immigration lawyer’ (only using inverted commas beause it seems to be tha fashion among PO’s and it will wind up the other side) with a good imagination to convince the courts that the position as it is now is unreasonable/unlawful.

    If our superiors and ‘betters’ (this time i mean it) can’t get their act together and spend money where it should be spent and not on swathes of unnecessary managers (the majority of whom are all pretty, female and only care about their own career) then maybe we could have an effective border agency.

    But until that happens we will be faced with fresh claims and JR challenges and ultimately people being granted under the HRA because we couldn’t get our act together.

    1. What you say about HGMO is interesting, Aging ‘HOPO’. It is a very difficult decision to understand on a human level and, sadly, represents something of a stain on Sir Henry Hodge’s reputation. There is apparently another test case on this issue now pending, although at an early stage.

      It is certainly the case that there would not be so many fresh claims around today if the Home Office actually removed people instead of making them homeless and destitute and effectively forcing them underground.

  4. i read with interest all the comments above and do feel that the goverment are dragging their feet on this matter in the vain hope that they will have cleared all the legacy cases before a judgement is reached,surely it would be better to give permission to work for those sat on legacy only and make a new ruling for all cases outside of legacy,at least that way it wouldnt be a draw as an economic migrant, but it would give those sat waiting some dignity and a chance to put something back into the country that has provided protection to them